Allahabad High Court
Prem Narayan And Another vs Board Of Revenue And 9 Others on 28 February, 2020
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?[RESERVED] Court No. - 9 Case :- WRIT - B No. - 5367 of 2018 Petitioner :- Prem Narayan And Another Respondent :- Board Of Revenue And 9 Others Counsel for Petitioner :- Narendra Bhushan Nigam,Shiv Shankar Prasad Gupta,Triveni Shanker Counsel for Respondent :- C.S.C.,Adya Prasad Tewari,Anil Kumar Rai,Vishnu Singh connected with Case :- WRIT - B No. - 55840 of 2007 Petitioner :- Ramesh Kumar Sahu Respondent :- Board Of Revenue U.P. And Others Counsel for Petitioner :- N.B. Nigam,D.N. Gupta Counsel for Respondent :- C.S.C.,Anil Kumar Rai,Haveldar Verma,Rakesh Kr. Shukla,S.N. Pandey,Satendra Kumar Singh,Suresh Chandra Varma,Vishnu Singh connected with Case :- WRIT - B No. - 55418 of 2016 Petitioner :- Siddharth And Another Respondent :- Board Of Revenue At Allahabad And 7 Others Counsel for Petitioner :- Kamla Prasad Tiwari Counsel for Respondent :- C.S.C.,Ak Pandey,Anil Kumar Rai,Manish Kumar Pandey,Suresh Chandra Varma,Vishnu Singh connected with Case :- WRIT - B No. - 57715 of 2016 Petitioner :- Dharam Das And 5 Others Respondent :- Board Of Revenue U.P. At Alld. And 10 Others Counsel for Petitioner :- M.N. Singh,Mahesh Narain Singh Counsel for Respondent :- C.S.C.,Anil Kumar Rai,Himanshu Pandey,Manish Kumar Pandey,Suresh Chandra Varma,Vishnu Singh connect with Case :- WRIT - B No. - 5368 of 2018 Petitioner :- Dharam Das And 7 Others Respondent :- Board Of Revenue U.P. And 10 Others Counsel for Petitioner :- Narendra Bhushan Nigam,Shiv Shankar Prasad Gupta,Triveni Shanker Counsel for Respondent :- C.S.C.,Adya Prasad Tewari,Anil Kumar Rai connected with Case :- WRIT - B No. - 5370 of 2018 Petitioner :- Raj Kumar Sahu Respondent :- Board Of Revenue U.P And 10 Others Counsel for Petitioner :- Narendra Bhushan Nigam,Shiv Shankar Prasad Gupta,Triveni Shanker Counsel for Respondent :- C.S.C.,Adya Prasad Tewari,Anil Kumar Rai Hon'ble Anjani Kumar Mishra,J.
Heard Shri N. B. Nigam and Shri Triveni Shankar for the petitionerS and Shri H.R. Mishra, learned Senior Advocate assisted by Shri Vishnu Kumar Singh for the respondents.
These writ petitions arise out of a suit under Section 60 of the UP Tenancy Act filed by the plaintiff-respondent and seek writs of certiorari for quashing the order dated 08.08.2018 passed by a Division Bench of the Board of Revenue, reviewing an order passed the Single Member, Board of Revenue.
The net result of the order passed on the review application is that the suit of the plaintiff stands dismissed.
The petitioners in these writ petitions are transferrees' from the heirs of the defendant No. 1 in the said suit.
The relevant facts of the case briefly stated are that the suit was filed seeking a declaration that the defendant No. 1 in the suit, namely, Tulsidas had no right to sell plot No. 106 area 74 decimal and plot No. 107/2, total area 3.8 decimal recorded in 1/2 Mauza Talpura, Pargana and District Jhansi and that he (defendant No. 1 Tulsidas), was not a patta holder of the said plots.
It appears that during the pendency of the suit an application for interim injunction was filed whereupon an interim injunction was granted. Despite the interim injunction, the heirs of defendant No. 1 in the suit, executed sale deeds dated 20, 21, 22 and 24.12.1992, in favour of the petitioners.
The petitioners applied for their impleadment in the suit. Another application is stated to have been filed by the legal heirs of defendant No. 1, stating that since they had executed sale deeds in favour of third parties, they had no concern left with either the land or the suit, itself.
The trial court dismissed the impleadment application. It appears that this order was not challenged any further and attained finality.
Ultimately the trial court vide judgement and decree dated 01.03.2005, decreed the suit.
It appears that as many as four first appeals was filed; one each by Prem Narain, Dharam Das and Siddharth Sahu , the purchasers pendente lite from heirs of Tulsi Das. The fourth was by the heirs of Tulsi Das.
At the appellate stage, an impleadment application by Ramesh Sahu was dismissed which order was affirmed by the Board of Revenue. A writ petition against these orders is stated to be pending.
Two of the aforesaid second appeals, were admitted on 23.05.2011, which order was recalled on 14.10.2011 and these appeals filed by Dharam Das and Siddhartha were thereafter, dismissed, in limine. The consequential Seconal Appeals were dismissed by the Board of Revenue.
The two remaining second appeals, one by Prem Narain, petitioner No. 1 and the other by Lakhan Lal were decided on 02.08.2017 and were allowed, setting aside the judgement and decree of the trial court.
Against the order of the Commissioner several second appeals were filed. The second appeals were decided by the Board of Revenue on 20.12.2017 by a common order. Of these second appeals, one was a revision filed by plaintiff, Ramesh Chandra Dubey, which had been converted into a second appeal.
All the appeals were allowed, the judgment of the trial court dated 01.03.2005 and that of the first appellate court dated 02.08.2017 were set aside. The appellants were further directed to be recorded in the revenue record under class 8, as is recorded in the operative portion of the said judgement.
Against the judgment and decree of the Board of Revenue, the plaintiff filed a review application. A Division Bench of the Board, vide order dated 08.08.2018 allowed the review and has dismissed the second appeal filed by the plaintiff. The second appeals by the transferrers pendente lite have also been dismissed as the sale deeds in their favour were executed in violation of an interim injunction granted by the trial court.
It appears from the narration of facts in the impugned order that the revision of the plaintiff was treated as a second appeal. All the second appeals were allowed by the judgment and order dated 20.12.2017 passed by the Member, Board of Revenue. Against the judgment of the Board of Revenue which allowed the second appeals, including the second appeal of the plaintiff, a review application was filed. This review application has been allowed by a Division Bench. Hence these writ petitions.
Learned counsel for the petitioners have raised elaborate arguments primarily that the suit itself was not maintainable as the property subject matter of the suit was not agricultural land. In this regard, various provisions of the UP Tenancy Act have been placed before this Court.
The second contention of the counsel for the petitioners is that the review application has been allowed on the ground that the appellants were transferees' pendente lite, which transfer had been made in the teeth of an interim injunction restraining transfer, and was therefore, void. This, it is contended, is illegal. In case of a transfer in violation of an interim injunction, the parties were, at best, liable to be punished for flouting an order of the Court. However the transfer itself could not be held to be void.
The last submission made is that the Division Bench had no jurisdiction to allow the review application because in the process it has passed a fresh judgment. A review application could have been entertained on limited grounds and the same was not liable to be treated as an appeal. This is precisely what has been done in the order passed on the review application which is, therefore, liable to be set aside.
On behalf of the contesting respondent, it has been submitted that the writ petition itself is not maintainable because the plaintiffs' suit, stands dismissed. The petitioners who are transferees of the land, in suit, cannot be aggrieved by its dismissal. The writ petitions are in fact not maintainable and are sheer abuse of the process of law.
On the submissions of counsel for the petitioner that the review application was not maintainable, it has been stated that in the operative portion of the judgment passed by the Member, the Board of Revenue, all the second appeals were allowed by him. This means that the appeals filed by the defendants, as also the appeal filed by the plaintiffs stood allowed. The order, therefore, was absolutely contradictory and this necessitated filing of the review application. The review application was, therefore, clearly maintainable and has rightly been entertained and allowed, although in the process the suit of the plaintiff stands dismissed. Therefore, it is the plaintiff respondent alone who can be aggrieved.
It has also been submitted that the Board of Revenue also committed manifest illegality in allowing the appeal also of persons similarly situated to persons whose impleadment application had been rejected by the trial court which order had become final. Therefore, the second appeal filed by the petitioners, the remaining transferees' pendente lite, was not maintainable.
It has lastly been submitted that the order of Member, Board of Revenue was liable to be reviewed also because it granted relief to the defendants, despite the fact that they had not preferred any cross objection in the suit. The second appellate court is competent only to deal with the suit as regards the relief claimed therein. It was not competent to have granted a relief which was not claimed by the plaintiff and was claimed by one defendant for a co-defendant who had however, not preferred any cross objection or counter claim.
I have considered the submissions made by counsel for the parties and perused the record.
As many as 14 judgments have been cited on behalf of the petitioners in support of their contention as regards the scope of a review as also the effect of a transfer of the suit property pendente lite, in violation of an interim injunction. However this Court is not adverting to these judgments because they do not appear relevant for deciding the controversy in these writ petitions.
Counsel appearing for the petitioners have not been able to dispute the factual situation recorded in the order on the review, namely, that the order passed by the Member, Board of Revenue was a contradictory order inasmuch as it allowed the appeals, both of the plaintiff and the defendants, as also the transferees' pendente lite, who in any case had no right to appeal once the impleadment applications of identically situated persons had been rejected by the trial court which order had been permitted to become final. Moreover, by allowing all the appeals an anomalous situation was created because the appeals of both the plaintiff and defendants stood allowed.
I also find merit in the submissions of counsel for the respondents that the Member, Board of Revenue, while allowing the second appeals had granted relief to a defendant who had not preferred any counter claim or cross objection. This, is in my considered view, was clearly impermissible. The judgment of the Single Member, Board of Revenue, therefore, suffered from errors apparent on the face of the record and for this reason alone the review application was clearly maintainable and has rightly been allowed. However as a result of the order passed on the review application the suit of the plaintiff which was confined to a declaration against the defendant No. 1 alone, stands dismissed.
The petitioners in writ petition No. 5367 of 2018 who are transferee from the heirs of the defendant No. 1 cannot be aggrieved by the dismissal of the suit.
Prem Narain did prefer a counter claim that the name of Tulsidas should be recorded under class 8 and was wrongly recorded in the revenue record under class 9. This counter claim could have been filed only by Tulsidas or his heirs and not by Prem Narain. It could not have been filed or entertained, in view of Section 34 (5) of the UP Land Revenue Act as there is no material on record to show that the transferee's pendente lite made any report of the transfer to the Tehsildar.
Section 34 of the UP Land Revenue Act reads as follows:-
"Section 34. Report of succession or transfer of possession.- "[(1) Every person obtaining possession of any land by succession or transfer (other than a succession or transfer which has already been recorded under Section 33-A), shall report such succession or transfer to the Tahsildar of the Tahsil in which the land is situate.]"
(2) [* * *] (3) [* * *] (4) If the person so succeeding, or otherwise obtaining possession, is a minor or otherwise disqualified, the guardian or other person who has charge of his property shall make the report required by this section.
(5) No Revenue Court shall entertain a suit or application by the person so succeeding or otherwise obtaining possession until such person has mad the report required by this section."
Besides, all petitions seek quashing of orders dated 01.03.2005, 04.05.2012 and 21.07.2016 passed by the respondents. Quashing all the above orders would, in the facts and circumstances would amount to dismissing the suit itself. This is precisely what has been done by order dated 21.07.2016 passed by the Division Bench of the Board of Revenue.
The writ petitions are therefore, not maintainable and sheer abuse of law. All the writ petitions are accordingly liable to be dismissed with costs of Rs. 10,000/- each on the petitioners in the writ petitions in this bunch.
Since the writ petitions are held to be not maintainable, I do not consider it necessary to deal with the arguments raised on behalf of the petitioners on the merits.
Insofar as Writ Petition No. 55840 of 2007 is concerned the same is directed against orders dismissing an impleadment application of the petitioners, therein. However, since the suit itself stands dismissed by the order passed by the Division Bench of the Board of Revenue the petition stands rendered infructuous and is liable to be dismissed, as such.
Accordingly the writ petitions are dismissed with costs as above, except Writ Petition No. 55840 of 2007 which is dismissed as infructuous.
Order Date :- 28.2.2020 Priyanka