Chhote Lal vs Board of Revenue and Others

Anjani Kumar Mishra, J.—Heard Shri Rishi Kant Rai, learned Counsel for the petitioner and Shri R.C. Upadhyay, who has accepted notice on behalf of the respondent No. 7, Land Management Committee. The writ petition arises out of proceedings under section 229-B of the U.P. Zamindari Abolition and Land Reforms Act and is directed against the order dated 8.2.2002 passed by the Commissioner, Azamgarh in Appeal No. 60/B/2001 (Virendra and others v. Chhote Lal and others) and the order dated 28.2.2014 passed by Board of Revenue in Second Appeal No. 49/2001-02 (Chhote Lal v. Virendra and others).

It appears that during consolidation operations, an order was passed by the consolidation authorities on the basis of an alleged compromise. The suit under section 229-B has been filed primarily on the allegation that the alleged compromise was fraudulent.

It appears that the Trial Court by his judgment and order dated 9.10.2001 dismissed the suit. The consequential appeal being Appeal No. 60/B/2001 (Virendra and others v. Chhote Lal and others) was allowed, the judgment and order under appeal was set aside and the matter was remanded back to the Trial Court for a fresh decision on merits.

The consequential second appeal filed by the petitioner has been dismissed.

Learned Counsel for the petitioner has primarily raised two submissions. First, that the Appellate Court while passing the impugned order of remand has made certain observations which for all practical purposes decided controversy finally and nothing remains to be decided in pursuance of the order of remand that has been passed by him.

In so far as this submission is concerned, suffice it to state that any findings recorded while passing an order of remand shall not be treated as conclusive and binding by the Trial Court and that the Trial Court shall decide the matter in accordance with the law and after hearing all concerned without being effected by the findings that may have been recorded in the order of remand.

The second submission of the learned Counsel for the petitioner is that several substantial questions of law had been framed in the memo of appeal filed before the Board of Revenue. The Board of Revenue has not adverted to these substantial questions of law while deciding the appeal and, therefore, the order is vitiated. It is the settled legal position that the substantial questions of law formulated in the memo of appeal are only indicative and it is for that Court concerned to either admit the appeal on these substantial questions of law or to frame its own substantial questions of law on the basis of the arguments and material available on record.

It is also settled that a second appeal can be allowed only after framing substantial questions of law and after considering them. There is however no embargo that even if no substantial question of law arises, the same must be framed or that the Court while dismissing the second appeal at the admission stage must deal with each and every substantial question of law that may have been framed in the memo of appeal.

Under the circumstances, I find no merit in the submissions made by the learned Counsel for the petitioner. The writ petition is, therefore, liable to be dismissed also because the impugned orders are orders of remand. It is still open for the petitioner to canvas his claim on merits before the Trial Court on the basis of the evidence that may be available on record. Accordingly and for the reasons given above, this writ petition is dismissed.