Smt. Dharmi Devi vs Sri Tribhuwan
2021 Latest Caselaw 914 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 1
 

 
Case :- FIRST APPEAL FROM ORDER No. - 3028 of 2009
 

 
Appellant :- Smt. Dharmi Devi
 
Respondent :- Sri Tribhuwan
 
Counsel for Appellant :- Rajeev Chaddha
 

 
Hon'ble Vivek Agarwal,J.

1. Heard Sri Rajeev Chaddha, learned counsel for the appellant.

2. This miscellaneous appeal has been filed by the plaintiff being aggrieved of order dated 15.09.2009 passed by learned Additional District Judge/Special Judge, Essential Commodities Act, Gorakhpur, whereby on an appeal filed by the defendant which was registered as civil appeal no.37 of 2004, learned ADJ has remanded the matter.

3. Learned counsel for the appellant submits that learned Additional District Judge has categorically recorded a finding that there is no interest of the appellant in the disputed property, yet matter has been remanded, which is a material mistake committed by the learned first appellate court and, therefore, that order be set aside and judgment and decree passed by the trial court in civil suit no.1242 of 1999 on 17.11.2004 by the Court of Additional Civil Judge (Junior Division), Court No.21, Gorakhpur be restored.

4. From perusal of the impugned order, it is apparent that matter has been remanded only on a limited ground that, since the petitioner-plaintiff was not having any 'pacca' construction over the land in question, therefore, in terms of the provisions contained in Section 123(1) of U.P. Zamindari Abolition and Land Reforms Act, 1950, no settlement could have been made in favour of the plaintiff. There is a reference to the Commissioner Report, 20-Ga and map 22-Ga that on a piece of land measuring 954 square feet, there was only one 'jhopari' and remaining land is vacant.

5. On the basis of such interpretation of provisions contained in Section 123(1) of the U.P.Z.A. & L.R. Act, remand has been made, which cannot be faulted with. Therefore, the miscellaneous appeal lacks merit, as appellant has failed to show that impugned order has been passed in violation of any substantive provision of law or suffers from any other legal infirmity, therefore, appeal fails and is dismissed.

Order Date :- 13.1.2021

Ashutosh