JUDGMENT :

Sharad Kumar Sharma, J.

In order to answer the arguments, as it has been extended by the learned counsel for the petitioners in relation to the subject matter which engages consideration in the present writ petition, that emanates from the principal proceedings, which were drawn under Section 229B of the U.P.Z.A. & L.R. Act, would be to the following effect:-

i) As to whether there could be a bar of Section 11 of CPC, in filing of an Application under Order 9 Rule 13 of CPC, by the heirs of the deceased whose earlier application at the behest of their predecessor stood rejected which was subsequent to his death?

ii) As to whether the principles of Section 11 CPC, would apply at the stage when an Application under Order 9 Rule 13 of CPC is being considered which has been instituted at the behest of the heirs of the deceased, upon whom the principal right and title would devolve on the death of the deceased, who was initially contesting the proceedings?

2. To deal with the facts, a Suit, under Section 229B of the U.P.Z.A. & L.R. Act was preferred by the plaintiffs-petitioners herein, seeking declaration of their right over a land, which was subject matter of the proceedings under Section 229B of the U.P.Z.A. & L.R. Act. At this stage, a detailed deliberation on the factual aspect, as it engaged consideration in the proceedings under Section 229B of the U.P.Z.A. & L.R. Act, is not required to be ventured into, owing to the arguments as it had been extended by the learned counsel for the petitioners, at the stage when the second Application under Order 9 Rule 13 of the CPC, was being considered by the learned trial Court, which has been allowed by the concurrent judgments, which are under challenge before this Court.

3. The Suit thus preferred by the predecessors of plaintiffs/petitioners herein for declaration of their rights, was in relation to a claim of bhumidahri right with regards to the land lying in Khata No.45Mi, Khasra No.46/146 of Haal Khata No. 18 of Village Trilokpur Dani Tehsil Haldwani, District Nainital having a total area 0.607 hect. When the Suit was proceeding after its registration, being Revenue Suit No.22/240 of 2005-06, it is contended by the plaintiffs/petitioners herein that when, despite service of notices, the defendants/respondents had not put in appearance, the Court of Assistant Collector, has resorted to a substitutive mode of service by publication, and consequently, the inference which has been drawn by the present petitioners is that owing to the substitutive mode of service, the presumption would be, that the respondents or their predecessors were having the knowledge of the proceedings of aforesaid Suit No.22/240 of 2005-06 and hence, preference of their Application under Order 9 Rule 13 of the CPC, may not be maintainable, when they have deliberately not contested the proceedings even after filing of the written statement.

4. Be that as it may, after filing of the Suit, it is not in controversy that the State and the Gram Sabha had contested the proceedings and had filed their written statements and consequently, the issues were framed.

5. The suit thus proceeded ex parte and the suit was consequently decreed by the judgment dated 02.04.2007, thereby granting a decree of declaration of right over the land in question, which has already been described above in favour of the plaintiffs/petitioners herein.

6. It is at this stage that after the judgment and decree dated 02.04.2007, the controversy stood germinating, which would now be a subject matter of this writ-petition to be decided on the basis of the arguments, as it has been extended by the petitioners’ counsel.

7. As a consequence of the ex-parte judgment and decree dated 02.04.2007, when the knowledge of the same was attributed to the predecessors of the present respondents, the defendant no.1 therein, he filed an Application under Order 9 Rule 13 of the CPC, as made applicable by virtue of the provisions contained under Section 341 of t