Allahabad High Court
Prahlad Singh And 2 Others vs State Of U.P. And 13 Others on 12 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On:05.12.2022 Delivered On:12.12.2022 Court No. - 52 Case :- WRIT - B No. - 3274 of 2022 Petitioner :- Prahlad Singh And 2 Others Respondent :- State Of U.P. And 13 Others Counsel for Petitioner :- Sachida Nand Tripathi Counsel for Respondent :- C.S.C.,Anuruddh Chaturvedi,Munna Tiwari,Sudhir Bharti Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. S.N. Tripathi, learned counsel for the petitioners, learned Standing Counsel for respondent nos.1, 2 and 14, Mr. Aniruddha Chaturvedi and Mr. Munna Tiwari, learned counsel for the contesting respondents and Mr. Sudhir Bharti, learned counsel for respondent-Gaon Sabha.
2. Brief facts of the case are that plaintiffs-petitioners filed a suit for declaration under Section 229 B / 176 of U.P.Z.A. & L.R. Act on the basis of Will-deed alleged to be executed on 9.8.1975 by Surjota in favour of plaintiffs for declaring the share in respect of Gata No.105, Khata Nos.106 & 107, Village- Harnahi as well as in respect of Village- Mudhuyari, Khata No.12 and also in respect to Village- Bhahuripaar. In the suit, defendants were Bagwanta, Rajendra Singh, Jhinku Singh and Ram Vibhuti Singh as well as Gram Sabha and State. One Chabilal Singh had two widows, namely, Surjota and Bagwanta, who had no issue. During consolidation operation both the widows of late Chabilal Singh, namely, Surjota and Bagwanta were recorded in the revenue records. After de-notification of the village under Section 52 of U.P.C.H. Act both the parties were recorded in the Khatauni. Surjota died on 14.9.1975. The land was recorded jointly in the name of both the widows along with others. Bagwanta filed her written statement on 19.10.1995. The suit was decreed on 21.9.2001. According to the petitioners, the plot in dispute was recorded in the names of Surjota and Bagwanta exclusively at the time of presentation of the suit but plaintiff had no notice of any transfer made by Bagwanta. Transferees (Ranjeet Singh and Shashi Prabha) moved an application for their impleadment in the suit on the basis of registered sale deed executed on 21.10.1992 by Bagwanta in their favour. The trial Court decreed the suit vide judgment and decree dated 29.1.2001. Against the judgment and decree of the trial Court dated 29.1.2001, two restoration applications were filed, one by Bagwanta on 29.4.2003 and another by Ranjeet Singh on 25.8.2003. Trial Court dismissed the restoration applications by judgment and decree dated 5.7.2005. Against the order dated 5.7.2005 rejecting the restoration applications, two appeals were filed by Bagwanta and Ranjeet Singh, which were dismissed by a judgment and order dated 5.3.2020. Against the order date 5.3.2020, two second appeals (Second Appeal Nos.936 of 2020 & 937 of 2020) have been filed before the Board of Revenue and the Board of Revenue vide judgment dated 20.10.2022 allowed the second appeals setting aside the judgment of the courts below and sent the matter back before the trial Court to decide the restoration applications dated 29.4.2003 and 25.8.2003 afresh within period of six months, hence this writ petition.
3. Learned counsel for the petitioners submitted that Bagwanta after filing the written statement in the suit in the year 1995 absented from the proceeding, as such, the suit was decreed by the trial Court in the year 2001 but the restoration application has been filed by Bagwanta in the year 2003 without giving proper explanation from the year 1995 till 2003. He further submitted that the trial Court as well as first appellate Court has rightly rejected the restoration / recall application and appeal filed by Bagwanta but Board of Revenue has arbitrarily allowed the second appeal and remanded the matter before the trial Court on the ground which were not formulated in the second appeal, as such, the impugned order passed by the Board of Revenue is manifestly erroneous. He further submitted that the recall application of the transferees (Ranjeet Singh & Smt. Shashi Prabha Singh) was also rejected by the trial Court recording reason in support of the order and the first appeal was also rightly dismissed but the Board of Revenue without considering the points involved in the matter has allowed the second appeal and remitted the matter for consideration of the restoration application of both parties i.e. Bagwanta and Ranjeet Singh. He further submitted that the courts below dismissed the restoration application on account of delay of eight years, as such, restoration application is not maintainable unless the finding recorded on the deliberate delay on the restoration application is set aside in accordance with law. He further submitted that sole contesting defendant Bagwanta did not contest for 8 years and her transferee appearing also failed to discharge the burden by producing his transfer deed for eight years, as such, the order of remand passed by the Board of Revenue while exercising second appellate jurisdiction is illegal and cannot be sustained in the eye of law.
4. On the other hand, learned counsel for the contesting respondent nos.1 and 2 submitted that the suit under Section 229 B of U.P.Z.A. & L.R. Act has been decided without framing issues and without making proper opportunity of hearing to the defendants / contesting respondents, as such, the restoration applications filed by the defendants / contesting respondents were liable to be allowed by the trial Court but the same has been arbitrarily rejected by the trial Court and the appeal filed by the defendant / contesting respondents was also dismissed arbitrarily. He further submitted that the Board of Revenue rightly exercised his second appellate jurisdiction and sent the matter back before the trial Court to consider and decide the restoration applications afresh on merit. He further submitted that in place of deciding the dispute on technical grounds, the controversies are to be adjudicated on merits. He further submitted that no interference is required against the impugned order and the writ petition is liable to be dismissed.
5. I have considered the argument advanced by learned counsel for the parties and perused the records.
6. There is no dispute about the fact that suit under Section 229 B of U.P.Z.A. & L.R. Act has been decided without framing the issues. Two sets of restoration applications filed with delay has been rejected by the trial Court, hence appeals were filed before the first appellate Court but the same was also dismissed. The Board of Revenue allowed the appeals filed by contesting defendants and sent the matter back before the trial Court to decide the restoration applications afresh.
7. Since the basic judgment in the suit under Section 229 B of U.P.Z.A. & L.R. Act suffers from inherent defect, as such, the restoration application although filed by the contesting defendants/contesting respondents with delay should be allowed in the interest of justice so that the dispute be adjudicated according to the law settled by this Court i.e. framing of issues, recording of evidence issueswise and judgment accordingly.
8. This Court in the case reported in 2020 (146) RD 186, Babu Vs. Mahabir & Others has held that the suit under Section 229 B of U.P.Z.A. & L.R. Act is a suit of special character, as such, it is to be decide after framing issue and evidence thereon. Following paragraphs of the judgment will be relevant, which are as follows:
"The manner in which the suit instituted by the respondent no.1 under Section 229-B of U.P. Z.A. & L.R.Act has been decided by the impugned order dated 28.01.2019 cannot be appreciated. The trial court has neither framed issues nor has provided any opportunity of leading evidence to the parties to prove their respective cases. The provisions contained in Code of Civil Procedure has been given a go bye.
As already observed above by the Court in its order dated 21.02.2019, the proceedings under Section 229-B of U.P.Z.A & L.R Act are regular proceedings where declaration of rights in a holding is decided on the basis of evidence.
Learned counsel for respondent no.1 has also not been able to defend the impugned order; rather he appears to agree that the matter ought to have been remanded to the Sub-Divisional Officer concerned."
9. So far as delay in filing the restoration application is concerned, the restoration applications are still to be decided by the trial Court under the impugned order, as such, trial Court will consider the objection of the petitioner to the restoration applications keeping in mind the ratio of law laid down by Courts from time to time that dispute should be adjudicated on merit.
10. This Court in the case reported in 1985 R.D. 71, Paras Nath Singh Vs. Deputy Director of Consolidation and Others has held that if as a result of quashing the impugned order another illegal order would be restored then Court would refuse to interfere with the impugned order. Paragraph No.21 of the judgment is as follows:
"21. It is, no doubt, correct to say that any order passed without jurisdiction is a nullity and deserves to be quashed. But if as a result of quashing that order another wrong and illegal order would be restored, this Court would refuse to interfere with the impugned order which appears to be quite proper equitable and just order. As mentioned above, the power under Article 226 of the Constitution is devised to advance justice and not to thwart it. To me it appears to be well settled that an order which is illegal cannot be quashed or set aside in writ jurisdiction if quasing of it results in bringing on record another illegal order."
11. In the present case also if the order passed by the Board of Revenue is stayed or set aside, the result will be the order of the trial Court will be restored by which the suit has been decreed ex-parte without framing issues in the case.
12. Considering the entire facts and circumstances as well as ratio of law laid down in Babu (supra) and Paras Nath Singh (supra), no interference is required in the matter.
13. The writ petition has no merit and is dismissed accordingly.
Order Date :- 12.12.2022 Rameez