Abdul Raqeeb vs Board Of Revenue & 4 Others
2017 Latest Caselaw 5342 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 33
 

 
Case :- WRIT - B No. - 47639 of 2017
 

 
Petitioner :- Abdul Raqeeb
 
Respondent :- Board Of Revenue & 4 Others
 
Counsel for Petitioner :- Udai Karan Saxena
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manoj Misra,J.

Heard learned counsel for the petitioner; learned Standing Counsel for respondent no.1 and perused the record.

The petitioner instituted suit under Section 229-B of U.P.Z.A. & L.R. Act against respondents 3 to 5 on 20.03.2006 for declaration of Bhumidhari rights in respect of plot no.93 Sa, area 0.160 Hectare, on ground of adverse possession. It appears that the said respondents transferred their right in favour of second respondent (Smt. Nasreen Bano), vide sale deed dated 31.03.2006, therefore they exhibited no interest in the proceeding and the suit proceeded ex-parte and was decreed by Additional Sub Divisional Officer, Sadar, Allahabad vide order dated 23rd November, 2010. To set aside the ex-parte decree, an application was preferred by the second respondent claiming that she was necessary party, having purchased the interest of respondents 3 to 5, but was neither impleaded nor served with summons therefore ex-parte decree be set aside. Simultaneously, the second respondent filed an appeal also against the ex-parte decree. The recall application was rejected vide order dated 07.01.2011 on the ground that the same was not maintainable as already an appeal had been filed against the ex-parte judgment and decree. Thereafter, the appeal of the second respondent was dismissed summarily, vide order dated 9th March, 2011, by the Commissioner, Allahabad Division, Allahabad.

Aggrieved by dismissal of her appeal, the second respondent filed second appeal before the Board of Revenue, Allahabad which, by the impugned order dated 13th July, 2017, has been allowed and the matter has been remanded back to the trial Court with direction to decide the suit afresh after affording opportunity to both sides to lead evidence by keeping in mind the observations contained in the judgment of remand.

A perusal of the order passed by the Board of Revenue would reveal that it examined the merits of decision of the trial Court as well as the appellate court and concluded that as the claim of the petitioner was set up on the basis of adverse possession by placing reliance on class 9 entries there ought to be examination as to whether those entries were made in accordance with provisions of the Land Records Manual whereas there was no such examination. The second appellate court was also of the view that whenever a claim is made on the basis of adverse possession, then the matter has to be examined on the weight of evidence, oral as well as documentary, so as to ascertain whether continuous possession of 12 years has been duly proved or not. It found that from the record it did not appear that the petitioner had filed 12 years' Khasra to substantiate his continuous possession. Accordingly, it considered it appropriate to remand the matter to the trial court to decide the suit afresh after giving opportunity to the parties to lead evidence and by addressing all those vital aspects which are necessary to be addressed before a claim is accepted on ground of adverse possession.

Learned counsel for the petitioner has assailed the order passed by the Board of Revenue on the following grounds: (a) that the second respondent was not even a party in the proceeding, therefore appeal of the second respondent was not maintainable and in any case since the second respondent had purchased the interest lis pendence, she was bound by the decree passed against the respondents 3 to 5; (b) that the Board of Revenue was not legally justified in reopening the entire suit proceeding even if the the second respondent was not heard by the trial Court because the proceeding went ex-parte against its predecessor-in-interest; and (c) that the husband of the second respondent had admitted possession of the plaintiff in mutation proceeding and therefore possession was duly proved.

I have given thoughtful consideration to the submissions of learned counsel for the petitioner.

In so far as first submission of learned counsel for the petitioner is concerned, that cannot be accepted because it has been proved on record that the second respondent had purchased the interest of the defendants in the suit. Once it was established that she had purchased the right of respondents 3 to 5, who were defendants in the suit, she had a right to file an appeal keeping in mind the provisions of Section 146 of the Code of Civil Procedure, 1908 (in short the Code), which applies to revenue courts by virtue of Section 341 of the U.P. Zamindari Abolition and Land Reforms Act (in short the Act). Section 146 of the Code provides that where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. Interpreting the true import of Section 146 of the Code, the apex court in Saila Bala Dassi v. Nirmala Sundari Dassi, AIR 1958 SC 394, held that whoever is entitled to be but has not been brought under Order 22 Rule 10 CPC in a pending suit or proceeding is entitled to file an appeal against the decree or order passed therein if his assignor could have filed such an appeal. Following the above decision, in Raj Kumar v. Sardari Lal, (2004) 2 SCC 601, the apex court held that a lis pendens transferee, though not brought on record under Order 22 Rule 10 CPC, is entitled to move an application under Order 9 Rule 13 to set aside a decree passed against his transferor, the defendant in the suit. Under the circumstances and in view of the law noticed here in above, it is held that the appeal preferred by the second respondent was maintainable at her instance even though she was not party in the suit.

In so far as second submission of learned counsel for the petitioner is concerned, that also cannot be accepted because under Order 41 Rule 23 A CPC, which applies even to revenue courts by virtue of Section 341 of the Act, where the appellate court considers it necessary it can direct a re-trial. Ordinarily such re-trial may be considered appropriate in suits which have been decided ex-parte so that one party may not derive advantage of ex-parte proceeding. In the instant case, it appears from ground no.III that suit was instituted on 20th March, 2006 whereas the sale deed was executed on 31st March, 2006. It is quite natural, under the circumstances, as to why the defendant, who had transferred his interest, would take interest in contesting the suit. Hence, the suit proceeded ex-parte without any contest. Further, the second appellate court found that the statement of plaintiff witnesses were recorded on 23.11.2010, the judgment was reserved on 23.11.2010 and it was delivered also on the same day. The tearing hurry with which the trial court proceeded weighed with the second appellate court to order de-novo trial, particularly, considering that the claim was based on adverse possession. It is noteworthy that no challenge has been laid to the correctness of the aforesaid observations of the second appellate Court. Thus, in the facts of the case, direction to hold de-novo trial cannot be said to be erroneous in law so as to warrant interference in exercise of constitutional powers of this court.

In so far as the merits of ex parte decree is concerned, suffice it to say that merely because the suit proceeds ex-parte it does not mean that it must be decreed. In Sudha Devi v. M. P. Narayanan, (1988) 3 SCC 366, the apex court held that even in absence of a defence the court cannot pass an ex-parte decree without reliable relevant evidence.

In the instant case, the suit was based on adverse possession. The burden was therefore heavy on the plaintiff to prove continuous uninterrupted possession for the prescribed period by cogent evidence which could be oral as well as documentary. The plaintiff had placed reliance on class 9 entry in the Khatauni to substantiate his possession. But whether those entries were made in accordance with the procedure prescribed by the Land Records Manual was not examined by the trial court and no finding in that regard was recorded therefore the second appellate court found it appropriate to remand the matter for examination on that aspect. In this regard it would be apposite to notice decisions of this Court in Jamuna Prasad Vs. Deputy Director of Consolidation, Agra 1981 RD 112; and Gurmukh Singh Vs. Deputy Director of Consolidation, Nainital and others, 1997 (88) RD 276 wherein it has been held that before entry of such category, showing possession without consent of the tenure holder, is relied upon, it has to be examined whether it was recorded by following due procedure prescribed by Land Records Manual for recording of such entry and evidence in that regard must be led. The second appellate court had further found that Khasra records of 12 years to depict continuous possession were not on record. Accordingly, it found it appropriate to set aside the ex-parte decree and remand the matter for fresh trial. Such an order of remand in the facts of the case calls for no interference in exercise of constitutional powers of this Court.

In so far as the submission that the second appellate court had failed to consider that the husband of the second respondent had admitted possession of the plaintiff-respondent is concerned, suffice it to say that the second appellate court had dealt with this aspect and had observed that statement, if any, made by the husband of the second respondent was without the authority of the second respondent and as such cannot bind her. Further, the learned counsel for the petitioner has not been able to demonstrate as to how second respondent's husband's statement in some other mutation proceeding would bind the second respondent as an admission unless the witness is confronted with the statement. Under the circumstances, nothing much turns on this submission of the learned counsel for the petitioner.

In view of the discussion made above, this court finds no good reason to interfere with the order of remand.

The writ petition is dismissed.

Order Date :- 11.10.2017.

Rks.