Vikas Agrawal and Others vs Sanjay Bhatnagar and Others

A.P. Sahi, J.—This petition questions the validity of the order of Board of Revenue whereby a Second Appeal filed by opposite party No. 1 has been entertained and an interim order has been granted.

The contention raised before this Court is that the very assumption of jurisdiction by the Board is erroneous as no Second Appeal would lie under Sub-section (4) of Section 331 of U.P. Zamindari Abolition & Land Reforms Act, 1950, against an order passed in a First Appeal remanding the matter for decision on a preliminary point. The other ground of challenge is, that the questions of law that have been framed by the Board, are founded on a perverse understanding of the issues involved, inasmuch as the question of law which could have been raised was whether the Suit could have been dismissed summarily on a miscellaneous application as being not maintainable without framing any issue and trying the same. Learned Counsel for the Petitioners Sri Subodh Kumar submits that if at all, a question did arise, it was this question and which could have been raised by the Petitioner. The Board instead of understanding this has proceeded to determine as to whether the Suit would be maintainable keeping in view the Abadi nature of land in the absence of a declaration u/s 143 of the 1952 Act.

The background in which the dispute arose is that the Petitioner claims to have purchased the property from their respective vendors in the year 1989 - 92 where after they have been recorded as co-tenure holders of the land in dispute. The opposite party Nos. 1 and 3 claim to have obtained sale-deeds on 7.2.2007 from the other co-tenure holders namely Haji Shamshad, Mohd. Raza and Ram Bahadur. Their names do not appear to have been mutated. The opposite party No. 1 filed a Suit for injunction contending that a signboard set up by the opposite party No. 1 over the land in dispute be not removed; a copy of the plaint of the said Suit has been filed as Annexure-1 to the supplementary-affidavit dated 4.9.2011 being Original Suit No. 52 of 2007. An interim injunction order came to be passed in the said Suit that the signboard shall not be removed or altered.

In between it appears that the Petitioners, who had purchased 1950 Sq.Yd. of land under the sale-deeds referred to herein above, filed a Suit u/s 176 of the U.P. Zamindari Abolition & Land Reforms Act for partition of the holding in which vendors of opposite Party Nos. 1 and 3 were arrayed as Defendants. The said Defendants filed their written statements indicating that they had already sold their share to the opposite party Nos. 1 and 3. Consequently, the opposite party Nos. 1 and 3 were also arrayed as Respondent and inspite of being put to notice, they did not appear therein nor they filed their written statement.

The opposite party No. 1 moved an application on 14.6.2011 before the trial court in the Suit contending that the land in dispute is in the shape of an Abadi and, therefore, in view of the provisions of Sub-section (1) of Section 331 of the U.P.Z.A. & L.R. Act, the Suit for partition u/s 176 of the 1952 Act would not be maintainable. On this application, a report of the Lekhpal was called for by the Court, who submitted the same on 20.6.2011 and on the very same day, the trial court passed an order dismissing the Suit as not maintainable. It is this order, which has given rise to the present controversy.

The Petitioners filed a First Appeal against the said order of the trial Court. The appeal was heard and was allowed by the learned Commissioner on 15.7.2011 holding that the Suit was very much maintainable and that the trial court committed a manifest error by simply relying on the report of the Lekhpal to dismiss the suit summarily. It was also found that the report was obtained on the same day and without providing any opportunity of objection etc. to the parties and without there being any deliberation thereon, the Suit was dismissed. The appellate Court held that a Suit u/s 176 for partition of the holding was very much maintainable and even if the opposite party No. 1 had filed a Suit for injunction, the same would not take away the jurisdiction of revenue court to proceed with the Suit. The appellate court further found that the area fell within the Bareilly Development Authority and there being no permission from the authority, it would be appropriate that the status-quo order should be maintained. The trial court was directed to proceed with the Suit on the basis of day-to-day hearing.

Aggrieved by the judgment of the learned Commissioner, the opposite party No. 1 preferred a Second Appeal in which the impugned order has been passed framing 3 substantial questions of law and an interim order dated 23.8.2011.

The submission of Sri Subodh Kumar is that the Second Appeal is not maintainable as the First Appellate Court has merely remanded the matter for a decision on the preliminary point of maintainability of the Suit which had been dismissed by the trial court as not maintainable. He further submits that not being a decree or a final order, the Board committed an error by entertaining the same and framing substantial questions of law. The contention further is that the issue relating to the declaration of land as Abadi u/s 143 was an issue of fact for which a trial had to be held by the trial Court, and without there being any finding of fact thereon, a substantial question of law could not have been framed by the Board of Revenue on such an issue. His submission is that under the garb of substantial questions of law having arisen, the Board has practically taken upon itself to try and decide the Suit which is impermissible in law.

Learned Counsel for the opposite party Sri M.N. Singh contends that a Second Appeal was very much maintainable as it was a final order and the first appellate court has travelled beyond it''s scope in issuing directions as contained in the operative part of the order. On this, there was a substantial question of law that had arisen hence the Second Appeal had been rightly entertained. The issue that the disputed land was Abadi also gave rise to the jurisdiction of the trial court to entertain the Suit which also was a substantial question of law.

In order to further proceed with the matter, this Court has taken the precaution calling upon the Petitioner to ensure service of notice on the other Respondents. The Respondent No. 1 is represented by Sri M.N. Singh. The Respondent No. 3 had received the notice and have contested the matter before this Court. The Respondent No. 2 has been served and the Respondent No. 2/1, who is the vendor of Respondent No. 2, is represented by Mr. Ansari, Advocate. The Respondent Nos. 5, 6, 7 & 8 have received notice through Respondent No. 7 and have not chosen to contest this petition. The Respondent Nos. 4 and 9 to 11 have personally refused to receive notice but the publication has been carried out in the newspaper and an Affidavit of Service has been filed to that effect. The Respondent No. 13 is represented by learned Standing Counsel and Respondent No. 12 is represented by Sri Anil Tiwari, Advocate. In view of the aforesaid fact service will be deemed to be sufficient as the publication has been carried out on all the Respondents hence this Court is proceeding to dispose of the matter finally with the consent of the parties represented before the Court. Needless to mention that the main contest is between the Petitioner and opposite party No. 1.

Coming to the first issue of maintainability of the Second Appeal, it would be appropriate to quote Section 341 of the U.P. Zamindari Abolition & Land Reforms Act, 1950, which is as follows:

Application of certain Acts to the proceeding of this Act.--Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1870 (VII of 1870), the Code of Civil Procedure, 1908 (V of 1908), and the [Limitation Act, 1963 (XXXVI of 1963), 4 (including Section 5 there of) shall apply to the proceedings under this Act.

The CPC has been made applicable with a rider that it shall be applicable where the provisions under the Statute are not specific. In the instant case, the Statute provides for a Second Appeal under Sub-section (4) of Section 331 of the U.P. Zamindari Abolition & Land Reforms Act, 1950, which is reproduced here under:

331 (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.

A perusal of the said provision would leave no room for doubt that the appeal would be maintainable against a final order or decree. In the instant case, the order passed by the first appellate court is an order that conforms to Order 41 Rule 23 of the Code of Civil Procedure, which is reproduced here under:

Order 41, Rule 23. Remand of case by Appellate Court. -Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject all just exceptions, be evidence during the trial after remand.

The first appellate court found that the issue of maintainability had to be tried after the parties were allowed to lead evidence and file objections. In the opinion of the Court, the first appellate court was perfectly justified in setting aside the order of the trial court. The trial court ought to have framed an appropriate issue relating to the maintainability of the Suit if it had been raised on behalf of the opposite party. The same could not have been dealt with summarily as has been done in the present case. Not only this, the report of the Lekhpal was obtained on the same day and without inviting any objection thereon, the order was passed dismissing the Suit. This procedure is unacceptable in law and is in violation of principles of natural justice as well. The trial court ought to have framed an issue and then allowed the parties to have led their evidence before recording any finding as to the maintainability of the Suit. Even otherwise, it could not have been done on a miscellaneous application and it was open to the opposite party to move an application if the plaint deserved to be rejected. The trial court instead found a short cut method of dismissing the Suit, which was neither legal nor was it justified. In the opinion of the Court, the first appellate court did not commit any error in setting aside the same.

Coming to the question of maintainability of the Second Appeal, it would be appropriate to quote Order 43 Rule 1(u) as under:

Order 43, Rule 1(u) an order under Rule 23 (or Rule 23A) of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court.

A perusal thereof would indicate that where an order of remand has been passed by the appellate court, an Appeal from order would lie under the aforesaid provision before the next court. This aspect has also been overlooked by the Board of Revenue while entertaining the Second Appeal. If an order was one of remand on a preliminary point, namely the maintainability of the Suit, then in my opinion the aforesaid provision would be fully attracted.

Instead of delving into this issue, the Board of Revenue completely misdirected itself and went on to frame substantial questions of law on issues of fact which had not even been put to trial before the court below. This course, therefore, adopted by the Board of Revenue was not available to it and hence the impugned order is vitiated.

In the opinion of the Court, the first appellate court was also not justified in issuing directions that was beyond the scope of the Appeal, nonetheless an injunction could have been granted and orders could have been passed provided the issue raised was one which required consideration. In the opinion of the Court, once the first appellate court had remanded the matter on a preliminary point, it was not justified in issuing any directions as has been done in the present case.

Accordingly, neither the order of the Board of Revenue in entertaining the Second Appeal is sustainable nor the directions issued by the first appellate court can be sustained. The writ petition is, therefore, allowed setting aside the order of the Board of Revenue impugned herein dated 23.8.2011 as well as the directions issued by the first appellate court. So far as the order of remand setting aside the order of the trial court by the first appellate court is concerned, the same is upheld and the trial court can now frame an issue regarding maintainability of the Suit and decide the same in the light of the observations made herein above. In view of the nature of the litigation the parties are directed to maintain status-quo till any fresh orders are passed by the trial court.

No order as to costs.