Allahabad High Court
Smt. Kalindi Deve Wife Of Shri Chandra ... vs Board Of Revenue, Additional ... on 15 April, 2005
Equivalent citations: 2005(3)AWC2895
Author: S.N. Srivastava
Bench: S.N. Srivastava
JUDGMENT S.N. Srivastava, J.
1. Impugned herein are the orders dated 31.3.2005 and 28.2.2005 passed by Board of Revenue, U.P. Allahabad.
2. I have heard learned counsel for the petitioner and also learned Standing counsel as well as learned counsel representing the Gaon Sabha,
3. It would appear from the record that to begin with, petitioner instituted a suit under Section 229 B of the U.P.Z.A. & L.R. Act which culminated in a decree passed by Sub Divisional Officer, Tamkuhiraj District Kushinagar pursuant to compromise dated 11.9.1980 between petitioner and Hari Kishan. Subsequently, a restoration application was filed by Prithivi Chand urging the ground that his father who was alleged to have been signatory to compromise dated 11.9.1980 had already expired on 20.3.1980 and he also submitted death certificate issued by Town Area Sevarhi which testified the death of Hari Kishan on 30.3.1980. The aforesaid restoration application was rejected as time barred vide order dated 25.1.2002 and consequently, Prithvi Singh filed an appeal before the Addl. Commissioner (Judicial) Gorakhpur which was initially dismissed by order dated 30.9.2004 but subsequently, it was allowed on a review vide order dated 19.10.2004 by which the orders dated 25.1.2002 and 30.9.1980 passed by Sub Divisional Officer were set aside. Aggrieved by the order, a second appeal was preferred before the Board of Revenue, which was also dismissed. It is in the above backdrop that the present second appeal has come to be filed in this Court.
4. The brunt of the argument advanced across the bar by the leaned counsel for the petitioner is that the appellate court has no power to review its earlier order and therefore, proceed the submissions, the impugned order passed on review application whereby the suit was dismissed as having abated, suffers from lack of jurisdiction. The learned counsel relied upon a decision in Smt. Shivraji v. Deputy Director of Consolidation 1998 (88) RD 562 to prop up his submissions. He further assailed the order of board of Revenue stating that the Board of Revenue erred in law in not considering the aspect urged before it.
5. From a close scrutiny of the materials on record and also the contents of the orders, it is eloquent that the grounds which weighed with the appellate court were that the decree on the basis of compromise was obtained without summons or notice to Prithvi Singh son of Har Kishan and further that death of Har Kishan Singh had preceded the date on which compromise is alleged to have been filed or decree was passed. The next ground stated in the order is that the matter pertaining to the title over self-same Gata numbers is subjudice before the consolidation courts and in the circumstances, the appellate court while allowing restoration application ordered the proceeding to have abated observing that the matter will be delved into on merits by the consolidation courts.
6. A scrutiny into the finding recorded by Sub Divisional officer would reveal that the authority concerned disbelieved death certificate on ground that it had cutting and overwriting and further that restoration application was inordinately time-barred for which no plausible explanation was forthcoming. The appeal filed against the order of Sub Divisional officer was initially rejected on the ground that the appellant had not impleaded necessary party in the case. In the review application, the appellate court reckoned with each and every aspect on merits and also considered that the matter of title is subjudice before the consolidation courts and in the ultimate analysis, allowed the review application and ordered the proceeding to have abated in view of the fact and the consolidation courts were seized of the matter of title involving the same property in question.
7. In the above perspective, I am of the view that the impugned order was rightly passed by the lower appellate court in review inasmuch as the earlier dismissal was purely on the ground that necessary party had not been impleaded also giving credence to the finding that no reliable evidence had been adduced in relation to the death of Har Kishan and on review, the appellate court allowed the restoration application and ordered the proceeding to have abated without adjudicating on the merits of the case. The appellate court, in my considered view, acted in accordance with law by virtue of Section 341 of the U.P.Z.A. & L.R. Act which envisages that "Unless Otherwise expressly provided by or under this Act, the provisions of the Court Fees Act, 1870, (VII of 1870), the Code of Civil Procedure 1908, (V of 1906), and the Limitation Act, 1963 including Section 5 thereof shall apply to the proceedings under this Act." It is thus obvious that provisions of the C.P.C. are applicable and in consequence, the appellate court was within its competence to review the earlier order by calling in aid the provisions of Order 47, Rule 1 C.P.C. Likewise, Section 331 of the U.P.Z.A.& L.R. Act may also be adverted to. It brooks no dispute that the appellate court could interfere only when there is an error of law or that the court below had acted illegally in adopting the procedure in deciding the matter before it After traversing upon Sections 341 and 331 of the U.P.Z.A. & L.R. Act, I feel called to refer to the provisions of Section 141 C.P.C. which envisage that the procedure provided in the code in regard to suit shall be followed as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. By above reckoning, it extends its coverage to proceeding arising out of suit under Section 229B of the U.P.Z.A. & L.R.Act read with Order XLVII Rule 1 of the C.P.C. Therefore, the contention that the appellate court had no power to review, does not commend to me for acceptance. The appellate court also rightly converged to the conclusion while deciding review application that the compromise decree was outcome of a fraud. In my considered view, the observation was made while deciding restoration application and in view of what has been spelt out in the order, the appellate court rightly converged to the conclusion that decree on compromise was out come of fraud and as stated in the impugned order that the matter has not been considered on merits, the apprehension of the learned counsel for the petitioner is ill-founded inasmuch as dispute of title shall be decided by the consolidation courts on merits. Since consolidation courts are seized of the dispute, it has been rightly observed that the parties shall be at liberty to contest the case of title on merit and that the consolidation authorities shall adjudicate upon the dispute of title on merits in accordance with law. There is no infirmity in the approach of the appellate court and the petitioner's interest would not be emasculated inasmuch as she would get ample opportunity to plead and prove her case of title before the Consolidation courts who are seized of the matter.
8. In the result, I do not find any substance in the second appeal and it is accordingly dismissed being devoid of merits.