Prema Devi And Others vs Mathura Dutt Pandey And Others

Sharad Kumar Sharma, J

A very short controversy, which this Court is adjudicating upon without venturing into the merits of the matter and, without venturing into determining any issues pertaining to the right of the parties, in relation to the subject matter of the Suit under Section 176, of the U.P.Z.A. & L.R. Act, 1950. The provisions contained under the said Act, they have been held to be the proceedings under a special statute, because they have been made as the part of IXth Schedule of the Constitution of India as having been included in Entry 11 of the said Schedule. That means the Constitution of India itself has given the provisions of U.P.Z.A. & L.R. Act as a special status, where the Act has been treated as to be a self contained code, which includes providing with all the determination of right in relation to a land, which is defined under Section 3(14) of the Act in any set of proceedings may it be either under Section 229B, 209, 210 or Section 176 and henceforth.

In the case at hand, the respondents herein are the plaintiffs in a Suit No. 27/1 (2007-2008), Mathura Dutt and Another v. Smt. Prema Devi and others which they have invoked for partition of the property in dispute under Section 176 of the Act, which initially stood dismissed against them by the order as passed by the Court of SDM/Assistant Collector, 1st Class, Nainital on 01.12.2011, being aggrieved against which they had preferred a First Appeal being Appeal No. 16/2011-12 / 24/2011-12, Shri Mathura Dutt and Another v. Smt. Prema Devi and others invoking Section 331(1) of the Act before the Court of Additional Commissioner, Kumaon Mandal, Nainital and the said First Appeal too was dismissed by the Court of Commissioner, Kumaon Mandal, Nainital vide its judgement dated 24.09.2013.

Now the controversy which germinates and which requires consideration before this Court is as to when a person is aggrieved against the Appellate Court's order, rendered under Section 331(1), which forum under the Special Act is available to him for redressal of his grievance. According to the provisions contained under Section 331(4), it provides that any person, who is aggrieved against the judgement rendered by the First Appellate Court under Section 331(1), has got a remedy of filing of a Second Appeal before the Board of Revenue under Section 331(4), which is quoted hereunder:

"(4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in Column 6 of the Schedule aforesaid.]"

This Forum of preferring of Second Appeal under Section 331(4) is also included in the IInd Schedule of the U.P.Z.A & L.R. Act, which provides that if any person is aggrieved against the judgement of the First Appellate Court in a Suit, decided under Section 176, the Forum available for him would be to prefer a Second Appeal before the Board of Revenue. But, unfortunately, in the instant case, being aggrieved against the First Appellate Court's order, passed under Section 331(1), dismissing the Appeal arising out of a Suit under Section 176, the plaintiffs/respondents, as they were advised, they had invoked the provisions contained under Section 333 of the U.P.Z.A. & L.R. Act, 1950, by way of preferring a Revision being Revision No. 3 of 2014-15, Shri Mathura Dutt and another v. Smt. Prema Devi and others. The provisions as contained under Section 333 of the said Act, which almost happens to be para materia to the provisions of Section 115 of the Code of Civil Procedure; the said provision reads as under:-

"[333. Power to call for cases. - (1) The Board or the Commissioner or the Additional Commissioner may call for the record of any suit or proceeding[other than proceeding under sub-section (4-A) of Section 198] decided by any court subordinate to him in which appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of any order passed in such suit or proceeding and if such subordinate court appears to have;

(a) exercised a jurisdiction not vested in it by law; or

(b) failed to exercise a jurisdiction so vested, or

(c) acted in the exercise of jurisdiction illegally or with material irregularity; the Board or the Commissioner or the Additional Commissioner, as the case may be, may pass such order in the case as he thinks fit.

(2) If an application under this section has been moved by any person either to the Board or to the Commissioner or to the Additional Commissioner, no further application by the same person shall be entertained by any other of them.]"

The argument of the learned counsel for the petitioners is that the powers of Revision under the Act, which was preferred by the plaintiffs/respondents, being aggrieved against the First Appellate Court's order dated 24.09.2013, was allowed by the Revisional Court, and consequently, the Revisional Court has decreed the Suit under Section 176 of Act.

The learned counsel for the petitioners submits that being aggrieved against the Appellate Court's order passed in an statutory appeal, no revision will lie under the Act, because once a special statute provides a Forum of Second Appeal under Section 331(4) to be read under II Schedule of U.P.Z.A. & L.R. Act, 1950, in that eventuality, the person, who is aggrieved by the First Appellate Court's order, is bound to invoke the Forum, which has been statutorily created of preferring a Second Appeal under sub Section (4) of Section 333 of U.P.Z.A. & L.R. Act, 1950, which has to be decided in the light of the provisions contained under Section 100 of the Code of Civil Procedure, which has been made applicable over the second appellate proceedings under the Act, by reference. Even otherwise, this Court is of the view that once the statutory appeal has been decided, any judgement rendered by the appellate Court would not be revisable as appellate judgements are not revisable.

While on the other hand, the argument which has been extended by the learned counsel for the plaintiffs/respondents is that the provisions contained under Section 333 of the U.P.Z.A. & L.R. Act, though it apparently seems to be a revisional power given under the Act, which has been vested with the Board or the Commissioner, as the case may be, hence, it would be amounting to exercise the same powers as contemplated under Section 331(4) of the Act could be treated as to be para materia provision and a forum to challenge the First Appellate Court's order. This Court is not in agreement with the argument as extended by the learned counsel for the plaintiffs/respondents the reason being that if his argument as extended is accepted then the provisions contained under Section 333 as to be treated as an alternative Forum to Section 331(4), it would be absolutely a wrong interpretation of law for the reason being that the statutory scope and purpose of Section 333, is to be availed in those situations or legal circumstances where any order or a judgement rendered by any subordinate Court could be subject to revision at the behest of the party aggrieved or even the revisional Court can suo moto take its call and initiate the proceedings of a revision. But in these cases where the Statute is providing a forum of second appeal, the powers of revision can never be treated to synonyms to powers of appeal, as it would defeat the very purpose of creation of the different forum.

But, if we compare the powers conferred to the second appellate Court under Section 331(4) of the Act, it does not provide that the Second Appellate Court can ever suo moto exercise the powers and take cognizance of an order passed under Section 331(1) of the Act until and unless the aggrieved party files a second appeal, like that provided in Revisional Power under Section 333.

Secondly, if the scope of revisional power, which is vested under Section 333 of the Act, would be confined in its application within the scope as provided therein the 3 clauses of the provisions under Section 333 of the Act, which is para materia to the provisions contained under Section 115 of the Code of Civil Procedure. It happens to be absolutely distinct to the appellate power where the provision of Section 100 of the Code of Civil Procedure has been made applicable by reference, under Section 331(4)

If the argument as extended by the counsel for the plaintiffs/respondents is accepted, it will run contrary to the intention of the legislation itself the reason being that if Section 333 is to be read as a substitute or a synonymous to the provisions contained under Section 331(4) of the Act, it would rather limit the jurisdiction of interference by the Revisional Court as against the First Appellate Court's order within the scope of its interference provided under Section 3 clauses contained therein under Section 333, whereas on the other hand, the provisions contained under Section 331(4) is wide enough to enable the parties to place there case both on facts and law and thus the argument, which has been extended by the learned counsel for the plaintiffs/respondents is not accepted.

There is another logic as to why the argument of the learned counsel for the revisionist to treat the proceedings under Section 333 as to be the proceedings of the same parlance as that provided under Section 331(4) is not acceptable from the viewpoint that if this logic is accepted, then there was no need for the legislature to provide for a specific Forum for redressal of the grievance by a party, who is aggrieved by a First Appellate Court's judgement by preferring a second appeal that too within the ambit of Section 100 of the C.P.C. Hence, there was no necessity for the legislature to contemplate different provisions under the Act itself for redressal of the grievance as against the First Appellate Court's order because if the argument as extended is accepted then it will have an adverse effect as it would be leaving the forum to be chosen by the choice of the party, which is aggrieved by first appellate Court's order, selection of a forum cannot be made available by choice of a litigant to invoke a forum which suits to his convenience which is not the intention of the legislature.

Consequently, the writ petition is allowed on this limited ground only and the Revisional Court's order dated 26.08.2016 as passed by the Board of Revenue, Uttarakhand Circuit Court, Nainital, exercising Revisional power as passed in Revision No. 3 of 2014-15, Shri Mathura Dutt and another v. Smt. Prema Devi and others, against the First Appellate Court's judgement is set aside. However, it is left open for the plaintiffs/respondents to approach the Second Appellate Court under Section 331(4) and seek their remedy for redressal of their grievance against the First Appellate Court's judgement, if they are so advised. However, if the plaintiffs/respondents approaches the Second Appellate Court for redressal of their grievances along with the Delay Condonation Application, the same would be rationally considered by the Board of Revenue, keeping in mind that the proceedings remained pending before the learned Revisional Court initially, as well as, before High Court thereafter, which has now been held as to be "not tenable" by the High Court and in that view of the matter, it would also be considered for extension of the benefit under Section 14 of the Limitation Act.

Subject to the above observations, the writ petition is allowed. The Revisional Court's order is set aside. However, there would be no order as to cost.