Istyaq Ahmad vs Ahmadi Khatoon And 8 Ors.
2017 Latest Caselaw 5536 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 33
 
									
 
Case :- WRIT - B No. - 44966 of 2017
 

 
Petitioner :- Istyaq Ahmad
 
Respondent :- Ahmadi Khatoon And 8 Ors.
 
Counsel for Petitioner :- Prem Prakash Chaudhary, Nayab Ahmad Khan
 
Counsel for Respondent :- C.S.C., Kamla Kant Mishra, Manoj Kumar Yadav, Punit Kumar Gupta, Umesh Chandra Tripathi
 

 
Hon'ble Manoj Misra, J.

Heard Sri P. P. Chaudhary for the petitioner; the learned Standing Counsel for the respondent no.13; Sri Punit Kumar Gupta for the respondent no. 10; Sri Manoj Kumar Yadav for the respondents 11 and 12; and the learned counsel for the caveator- respondent no.6.

The present petition has been filed challenging the order dated 30.08.2017 passed by the Board of Revenue in Second Appeal No. 312 of 2015 whereby the judgment and decree passed by the courts below has been set aside and the matter has been remanded back to the trial court to decide it afresh in the light of observations made in the judgment of remand after giving opportunity to lead evidence to both sides.

A perusal of the record would reveal that the petitioner, namely, Istyak Ahmad, instituted suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act (in short U.P.Z.A. & L.R. Act) by claiming that though the plaintiff and the defendants were recorded over plot nos. 146/2.58 and 148/0.9 but against their names "Mutwalli Waqf Masjid" has been left out, and since the land is subject matter of Waqf, under Waqfnama of the year 1906, therefore, a declaration to that effect be made.

The suit, as per Annexure 1 to the petition, appears to have been instituted by impleading six defendants, namely, Rahamt-ul- Nisha; Iqbal Ahmad; Ejaj Ahmad; Gaon Sabha; State of U.P. through Collector, Jaunpur; and U.P. Sunni Central Waqf Board, Lucknow.

The defendant no.1-Rahamt-ul-Nisha filed written statement thereby admitting that the land is a Waqf property. Defendant-Ejaj Ahmad also, in his written statement, admitted the plaintiff's claim. However, defendant-Iqbal Ahmad contested the plaintiff's claim by claiming that he was bhumidhar and that the suit was barred by section 49 of the U.P. Consolidation of Holdings Act (in short C.H. Act) inasmuch as the status of the recorded tenure-holders had been confirmed in two consolidation operations. Another plea taken by Iqbal Ahmad, as it appears from paragraph 6 of his written statement (Annexure 2 to the petition), was that Khatedar (tenure-holder) - Mehrulnisha widow of Mohd. Mustafa had executed sale-deed but the transferees had not been impleaded therefore the suit was bad for non-joinder of necessary party.

It appears that thereafter the defendants did not contest the proceeding and the suit was decreed by the trial court thereby directing that the name of defendants be deleted and in their place Wakf- Masjid through Mutwalli Ishtyaq Ahmed be recorded. Against the decree passed by the trial court an appeal and a revision was filed which were dismissed by the lower appellate court. Whereupon, a second appeal was filed before the Board of Revenue. The Board of Revenue, vide impugned order dated 30.08.2017 allowed the appeal and remanded the matter to the trial court.

A perusal of the impugned order would reveal that after examining the record and various pleas taken by both sides the Board found that the trial court had placed reliance on photocopies of documents; that it had failed to frame issues; and that it had not addressed relevant issues such as:- (a) whether pursuant to alleged wakf deed of the year 1906, the wakf was recorded in the record and, if so, then when; (b) when the entry of Wakf was expunged and the appellants were recorded; (c) whether the names of the appellants were recorded without order of any competent authority; (d) what would be the effect of two intervening consolidation operations in the village, if no objection was taken to the existing entries; and (e) whether the disputed plots had fallen under consolidation operation as also whether the plot numbers and their identity remained intact or had changed in the intervening consolidation operations. Upon finding various lacuna as above, which came to be overlooked by the lower appellate court, the order passed by the trial court and the lower appellate court was set aside and the matter was remanded back to the trial court for deciding the suit afresh, in accordance with law, after giving opportunity to the parties to lead evidence.

The learned counsel for the petitioner has assailed the impugned order passed by the Board of Revenue on following grounds: (a) the appeal before the Board of Revenue at the instance of persons who were not party in the suit proceeding was not maintainable; (b) the Board of Revenue proceeded to decide the second appeal without framing substantial question of law; (c) that there was no occasion for directing a de novo trial, particularly when it was proved on record that the defendants after service of summons had appeared in the proceeding and had filed written statement but thereafter had not led any evidence; and (d) that one of the appellants before the Board of Revenue had preferred a revision before the Commissioner and therefore he could not have joined as an appellant in the second appeal before the Board of Revenue inasmuch as there is no provision for a second revision at the instance of same party.

The learned counsel for the caveator - respondent no.6 submitted that the parties who had gone up in appeal were transferee from the parties in the suit proceeding and therefore they had a right to maintain an appeal. It was urged that the decree of the trial court as well as the appellate court suffered from a fundamental defect in procedure inasmuch as despite written statement of Iqbal Ahmad, by which various pleas to defeat the claim of the plaintiff was taken, no issues were framed. In absence of framing of issues, the trial stood vitiated and therefore the second appellate court was legally justified in remanding the matter for a de novo trial. It was also urged that the bar of section 49 of the C.H. Act was set up but there appears no issue in that regard. He thus supported the remand order.

Upon hearing the rival submissions, a specific query was put by the Court to Sri P.P. Chaudhary, learned counsel for the petitioner, as to whether the appellants before the Board of Revenue were transferees from any of the parties in the suit proceeding. The learned counsel for the petitioner did admit that they were transferees. He, however, maintained that in absence of an order of impleadment as party in the suit or appellate proceeding and without leave of the second appellate court, appeal at their instance was not maintainable.

I have considered the submissions of the learned counsel for the parties.

In so far as the question of maintainability of appeal at the instance of transferees from a party to the suit proceeding is concerned, the issue is no longer res integra. In Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi and another : AIR 1958 SC 394, a four Judges Bench of the Apex Court held, after interpreting the provisions of section 146 of the Code of Civil Procedure, which is applicable to the revenue courts by virtue of section 341 of the U.P.Z.A.&L.R. Act, that who ever is entitled to but has not been brought under Order 22 Rule 10 C.P.C. 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 of the 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, once it is not in dispute that the appellants were transferee from a party in the suit proceeding, the appeal at their instance was maintainable.

The other limb of the aforesaid objection taken by the learned counsel for the petitioner is that even assuming that the appeal of such an appellant could be entertained but such appeal cannot be entertained unless leave is granted by the appellate court. The said contention cannot be accepted because the moment the court entertains the appeal and proceeds to decide the same on merit, it would be deemed that if such leave was required the same has been granted. Moreover, section 146 of the Code of Civil Procedure does not specifically contemplate grant of leave before entertaining an appeal at the instance of the assignee or such other persons who claim under a party to the proceeding. Though, ordinarily, leave is sought to demonstrate as to how a non-party to the proceeding is affected by the order or decree and is entitled to present an appeal. However, since it is not disputed that the appellants were transferee from a party to the suit, the appeal was maintainable at their instance.

The contention of the learned counsel for the petitioner that without framing substantial question of law, the Board of Revenue could not have proceeded with the second appeal cannot be accepted in view of decision of the Apex Court in the case of State of Uttrakhand (previously State of Uttar Pradesh) v. Mohan Singh and others : 2012 (13) SCC 281, wherein the apex court interpreted sub-section (4) of section 331 of the U.P. Zamindari Abolition and Land Reforms Act and held that the use of the expression "on any of the grounds specified in section 100 of the Code of Civil Procedure, 1908," incorporated the then existing section 100 of the Code as it existed in the 1908 "unamended", and therefore the subsequent amendments in section 100 C.P.C. would not affect the powers of the Board. Accordingly, the Board was not required to deal with a substantial question of law and, as such, a question of law would be sufficient.

It may be observed that the requirement to frame substantial question of law by the second appellate court was for the first time incorporated in section 100 of the Code of Civil Procedure by amendment carried out by Act No. 104 of 1976 with effect from 01.02.1977. Under section 100 of the Code as it existed at the time of enactment of U.P.Z.A.& L.R. Act requirement to formulate substantial question of law before proceeding to decide the second appeal was not there. Accordingly, the challenge to the order of the Board of Revenue that the order passed in the second appeal stood vitiated for non-framing of substantial question of law is rejected.

In respect of the third submission of the learned counsel for the petitioner that the appellate court should not have reopened the trial by its order of remand, suffice it to say that the proceeding of the trial court suffered from a fundamental defect, inasmuch as, despite the fact that there was a written statement on record, filed by one of the defendants, namely, Iqbal Ahmad, contesting the plaintiff's claim, trial court did not frame any issue as is required by Order XIV C.P.C. From the order passed by the second appellate court, it appears that only photocopies of the documents were placed. Even the transferees were not there on record whose rights were affected. Under the circumstances, the second appellate court considered it appropriate to direct a re-trial. Such direction for re-trial, in the given facts of the case, sub-serve the ends of justice, therefore, calls for no interference in exercise of constitutional powers, keeping in mind the provisions of Order 41 Rule 23-A C.P.C., which are applicable to proceedings under the U.P.Z.A.& L.R. Act by virtue of section 341 of the Act.

The submission of the learned counsel for the petitioner that one of the appellants had been a revisionist before the lower appellate court and therefore could not have joined the other appellants is purely academic, which calls for no adjudication, particularly, when this court has taken a view that the appeal was maintainable at the instance of other appellants.

The petition is dismissed.

It is, however, clarified that this Court has not expressed any opinion on the merits of the claim of the parties and, therefore, any observation made in this judgment may not be construed as an opinion expressed on the merits of the claim of any of the parties.

Order Date :- 23.10.2017

Sunil Kr Tiwari