Allahabad High Court
Smt. Chandrakali And 2 Others vs State Of U.P. And 9 Others on 19 July, 2022
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 32 Case :- WRIT - B No. - 1010 of 2022 Petitioner :- Smt. Chandrakali And 2 Others Respondent :- State Of U.P. And 9 Others Counsel for Petitioner :- Shobh Nath Pandey,Shrawan Kumar Pandey Counsel for Respondent :- C.S.C.,Azad Rai,Sandeep Srivastava Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioners, learned counsel for the caveator (respondent No. 6), learned counsel for the Gaon Sabha, learned standing counsel representing respondents No. 1 to 4 and perused the record.
Instant writ petition has been filed by some of the defendants/petitioners challenging the judgment dated 30.11.2021 passed by Additional Commissioner-Ist Prayagraj, Division Prayagraj (respondent No. 3) in appeal No. 02160 of 2018 and judgment dated 31.3.2022 passed by Judicial Member, Board of Revenue, UP Allahabad (respondent No. 2) in second appeal No. 436 of 2022 (Smt. Chandrakali and others Vs. Additional Commissioner and others), under Section 331 of UP ZA & LR Act (annexure Nos. 13 & 15).
Facts culled out from the averments made in the writ petition reveal that the present writ petition is arising out of declaratory suit under Section 229 of UP ZA and LR Act. The contesting respondent No. 6 has filed suit dated 23.11.2013 claiming his right and title over the property in question on the basis of an unregistered Will deed dated 14.7.1974 said to have been executed by Sarju Prasad. Aforesaid suit was dismissed by judgment dated 16.7.2018 passed by UpZiladhikari, Karchhana, Allahabad. Feeling aggrieved, the plaintiff has filed first appeal, which was allowed and the matter was remanded by judgment dated 30.11.2021 passed by Additional Commissioner-Ist, Prayagraj, Division Prayagraj. On second appeal being filed on behalf defendants-petitioners, same has been dismissed by the Board of Revenue, vide judgment dated 31.3.2022, affirming the judgment passed by the first Appellate Court, which are under challenge in the present writ petition.
Learned counsel for the petitioners submits that the first Appellate Court as well as second Appellate Court have illegally remitted the matter before the trial court for examining the validity of the Will deed whereas same could not be proved by the plaintiff. It is further submitted that Sarju Prasad has no alienable interest over the property in question, which has been said to be bequeathed by him in favour of the respondent No. 6. It is further submitted that the respondent No. 6 has filed the suit at a belated stage without assigning sufficient reason for the inordinate delay. It is next submitted that the Board of Revenue has illegally affirmed the order passed by the respondent No. 3 without adverting to the submissions advanced on behalf of the present petitioners. Board of Revenue is itself competent authority to decide the appeal on the basis of the material available on record but it has failed to do so and illegally affirmed the order of the first Appellate Court. It is next submitted that the impugned judgments passed by the first Appellate Court and the second Appellate Court are illegal, unwarranted under the law and tainted with illegality, therefore, they are liable to be quashed.
Per contra, learned counsel for the contesting respondent No. 6 contended that the first Appellate Court as well as second Appellate Court has rightly relegated the parties before the trial court to re-examine the matter qua issue Nos. 2 and 3 framed by the trial court pertains to the validity of the unregistered Will deed and question of bar under Section 49 of the UP Consolidation of Holdings Act. It is submitted that respondents No. 2 and 3 have wisely remitted the matter before the trial court to decide the issue Nos. 2 & 3 afresh after giving opportunity of hearing to the parties. There is no illegality, infirmity or irregularity in the order passed by them warranting indulgence of this Court under Article 226 of the Constitution of India.
Carefully considered the rival submissions made by the learned counsel for the parties and perused the record on Board.
Claim of the respondent No. 6 with respect to the property in question on the basis of unregistered Will deed dated 14.7.1974, said to have been bequeathed by the recorded tenure holder Sarju Prasad, has been negated by the trial court, who has framed as many as six issues in deciding the suit. Out of them, issue No. 2 was related to the validity of the unregistered Will deed dated 14.7.1974 and the issue No. 3 was related to the bar of suit under Section 49 of UP of Consolidation of Holdings Act. On first appeal being filed on behalf of the plaintiff, first Appellate Court has remitted the matter before the trial court to re-examine the issue Nos. 2 and 3 with an observation that no proper opportunity of hearing was afforded to the plaintiff to prove the unregistered Will deed. The first Appellate Court has also questioned the finding given by the trial court over issue No. 3 on the ground that cause of action for filing of suit arose after the consolidation operation, therefore, bar under Section 49 of UP Consolidation of Holdings Act is not attracted. Board of Revenue, on second Appeal being filed by the contesting defendants/petitioners, affirmed the order passed by the first Appellate Court relegating the parties before the trial court to decide the issue Nos. 2 and 3 de novo after giving opportunity of hearing to the parties.
I do not find any substance in the submissions advanced by the learned counsel for the petitioners challenging the impugned order passed by respondents No. 2 and 3. There is nothing on the record to demonstrate as to what prejudice caused to the petitioner or there is likelihood of causing gross miscarriage of justice to the petitioners due to remand order passed by the appellate court. In my opinion, the judgments passed by the respondents No. 2 and 3 are legal and there is no infirmity or irregularity in the order under challenge so as to warrant the indulgence of this Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India.
The present writ petition, being misconceived and devoid of merits, is dismissed with no order as to the cost. However, considering the old matter of 2013, trial court is hereby directed to make an endeavour to decide the suit filed on behalf of respondent No. 6, in pursuance of the remand order, expeditiously, preferably within a period of six months from the date of production of a certified copy of this order, which shall be filed by the parties within three weeks from today.
Order Date :- 19.7.2022 vinay