Vidya Devi And Others vs Board Of Revenue And Others
2013 Latest Caselaw 5027 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 6
 

 
Case :- WRIT - B No. - 45220 of 2010
 

 
Petitioner :- Vidya Devi And Others
 
Respondent :- Board Of Revenue And Others
 
Counsel for Petitioner :- Rakesh Kumar Gupta,Azad Rai,Ramesh Kumar,S.C. Verma,Satyendra Kumar Singh
 
Counsel for Respondent :- C.S.C.,M.P. Sinha,Vimal Kr Rai
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Heard Sri S.C. Verma alongwith Sri Azad Rai, learned counsel for the petitioners and Sri M.P. Sinha alongwith Sri Vimal Kumar Rai for the respondent Nos. 2, 3 and 4. No one has appeared for the respondent no. 5 - Gaon Sabha inspite of notice having been served. Learned Standing Counsel has been heard for the respondent No. 1.

This writ petition arises out of a suit for partition filed by the predecessor in interest of the respondents late Prabhunath Rai seeking division of the holdings under Section 176 of the U.P. Z.A. & L.R. Act, 1950. The suit was filed on the ground that the shares to the extent of half and half between the plaintiff and the defendant Uma Shanker Rai in dispute be divided and the property should be accordingly partitioned.

The contest was put forth by late Uma Shanker Rai the predecessors interest of the petitioners no. 1 to 4 contending that the said defendant Prabhunath Rai had only 1/5th share in the property and that one of the plots had been exclusively purchased through an auction which should not have been subject matter of the suit.

The suit proceeded and it appears from the order-sheet that has been filed alongwith the counter affidavit, that the court recorded on 12th September, 2005, that 9 months have passed by but no written statement or objections have been filed and a cost of Rs. 20/- was imposed. Again on 22.11.2005 the defendant did not appear and consequently the matter was directed to proceed ex-parte for preparation of lots on 29.11.2005. On the next date fixed an application for recall was filed which was allowed and the petitioners were given an opportunity to file their objections and advance their arguments on 6.12.2005. The matter thereafter appears to have taken up on 26.12.2005 on which date it was again recorded that the defendant had been put to notice about the date for drawing up of the preliminary decree but neither any objection was filed nor the arguments were advanced as such the opportunity to do so was closed. The file was directed to be put up on 2nd January, 2006 for drawing up of the preliminary decree.

Sri S.C. Verma contends that a perusal of the said order dated 26.12.2005 did demonstrate that the arguments were neither advanced either by the plaintiff or the defendant. On the next date i.e. on 2nd January, 2006 the order-sheet that has been filed as Anexure 5 to the writ petition indicates that the arguments were heard on behalf of the plaintiff, whereas, the defendant was not heard keeping in view the earlier order passed closing the opportunity for either leading evidence or advancing arguments. The preliminary decree was drawn treating the share of the plaintiff and the defendant as half and half.

In between Uma Shanker Rai, the defendant died on 30th December 2005 i.e. before drawing up of the preliminary decree.

Sri Verma in the second limb of his argument has with the aid of Rule 6 of Order XXII of the Civil Procedure Code contended that the arguments were not over, inasmuch as, Uma Shanker Rai died even before the argument of the plaintiff had commenced. He therefore, submits that the decree could not have been drawn up on 2nd January 2006 without substituting the heirs of Uma Shanker Rai and giving them an opportunity of hearing. The proceedings would abate as the death had taken place before conclusion of arguments.

Consequently the petitioners who are the heirs of late Uma Shanker Rai , they filed a recall/restoration application on 12th April 2006 and they also filed objections to the preliminary decree. This application for recall as well as the objections both were finally dismissed while drawing up the final decree on 16.05.2006. I have perused the said order which is on record as Annexure no. 7 to the writ petition which categorically recites the rejection of the aforesaid two applications filed by the petitioners.

Aggrieved by the orders in the final decree, the petitioners went up in an appeal which was dismissed then in Second Appeal which was also dismissed by the Board of Revenue, hence, this petition. They had simultaneously also filed a revision against the rejection of restoration which was also dismissed.

Sri S.C. Verma contends that in view of the aforesaid gross legal flaw of the non substitution of the heirs of Uma Shanker Rai and further denying opportunity to the petitioners in the case has seriously prejudiced their cause. The drawing up of the preliminary decree was therefore an erroneous procedure adopted by the Trial Court and that the restoration application filed by the petitioners ought to have been allowed. He contends that the procedure of Order 22 Rule 6 having been violated the preliminary decree deserves to be set aside.

Replying to the said submissions Sri M.P. Sinha, learned counsel for the contesting respondents contends that the petitioners were heard at the time of drawing up of the final decree and in the aforesaid circumstances there was absolutely nothing on merits in the objections filed by the petitioners so as to deny the claim of half and half share. He contends that in the absence of any such material even before this Court the contention of the petitioners does not appeal to reason, inasmuch as, there is no material to indicate any such difference in the shares as allocated under either of the preliminary decree or the final decree.

Sri Sinha then invited the attention of the Court to the order sheet on various dates to contend that the petitioners had been given full opportunity and having not availed of the same, the question of giving them any further opportunity to lead evidence or to advance any argument did not arise.

In such circumstances the trial court was fully justified in drawing up of the preliminary decree on 2nd January 2006 which has been rightly upheld upto second appellate stage by the Board of Revenue.

The contention in short is that there is no denial of opportunity and that the arguments having been closed, the provisions of Rule 6 of Order XXII are not attracted. He therefore submits that the writ petition deserves to be dismissed as no prejudice has been caused to the petitioners who have been given their shares as allocated.

Having heard learned counsel for the parties and having perused the records and in view of the submissions raised hereinabove the fact that Uma Shanker Rai died on 30th December, 2005 is undisputed. Further, the arguments advanced on behalf of the plaintiff were heard on 2nd January, 2006 also remains un-rebutted and it is clearly recited in the said order that the plaintiffs were heard and defendants were denied hearing. It is therefore clear that the hearing had not concluded as on 30th December, 2005 that is on the date when defendant died. In the circumstances, the provisions of Order XXII Rule 6 would clearly stand attracted to the extent that the proceedings could not have been taken further by the trial court without substituting the heirs of late Uma Shanker Rai.

The arguments of Sri M.P. Sinha that the submissions had already been completed is not borne out from the record. In the aforesaid circumstances the contention raised on behalf of the petitioners on this count has to be accepted.

So far as the issue relating to the shares on merit is concerned there is an allegation that the share is not half and half. There is also an allegation in the objections filed that one of the plots had been purchased individually in his own capacity by late Uma Shanker Rai through auction.

These aspects therefore did require to be considered at the time of drawing up of the final decree which has not been done. In the circumstances, this was a pure question of law which ought to have been taken notice of by the Board of Revenue while proceeding to have decided the second appeal. This having not been done the Board of Revenue has also erred in affirming the order of the trial court.

Consequently, for the reasons given hereinabove, the writ petition is allowed. The order drawing up of the preliminary decree order dated 2nd January, 2006, the final decree dated 16.5.2006, and the orders affirming the same by the first appellate court as well as by the Board of Revenue are all set aside.

The matter is remitted back to the trial court to proceed from the stage of allowing the parties to lead evidence and give them an opportunity of hearing on the issues raised in the light of the observations made hereinabove.

Since the suit is of the year 2004, the trial court is directed to conclude the same without giving any unnecessary adjournments within six months from the date of production of a certified copy of this order.

Order Date :- 12.8.2013

Sahu