Amar Nath Arora vs Sub Divisional ...
2022 Latest Caselaw 1578 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 1242 of 2022
 

 
Petitioner :- Amar Nath Arora
 
Respondent :- Sub Divisional Magistrate,Sarojini Nagar, Lko. And 8 Others
 
Counsel for Petitioner :- Deepanshu Dass,Lalta Prasad Misra
 
Counsel for Respondent :- C.S.C.,Namit Sharma
 

 
Hon'ble Jaspreet Singh,J.

Heard Dr. L. P. Mishra alongwith Shri Deepanshu Dass, learned counsel for the petitioner, Shri R. P. Singh, learned Additional Chief Standing Counsel for the State-respondents, Shri Namit Sharma for the respondent no.4 and Shri Shobhit Mohan Shukla, learned counsel appearing for the respondent no.5.

The petitioner has preferred the instant petition under Article 227 of the Constitution of India praying for the following reliefs:-

"(a). To issue an order of suitable nature setting aside the impugned orders dated 05.03.2022, 28.03.2022, 11.04.2022, 16.04.2022 and 18.04.2022 passed by the Sub Divisional Magistrate, Sarojini Nagar, Lucknow 04023/2020, opposite party no. computerized 1 in case case no. no. T202010460504023 Ms. Medhaj Techno Concept Versus State of U.P. and others under Section 144 of the U.P. Revenue Code, 2006 (The copy of the impugned orders dated 05.03.2022, 28.03.2022, 11.04.2022, 16.04.2022 and 18.04.2022 annexed as ANNEXURE NO. 1 to 5 respectively to the petition).

(b) To issue an order of suitable nature cancelling and setting aside the plaints of case no. 04023/2020, computerized case no. T202010460504023 Ms. Medhaj Techno Concept Versus State of U.P. and others under Section 144 of the U.P. Revenue Code, 2006 as also case no. 17686 of 2018 Computerized no. T-20180460517686 Medhaj Techno Concept Versus Amarnath Arora and others under Section 134 of the U.P. Revenue Code, 2006 (The copy of the plaint under Section 144 of the Revenue Code, 2006 and plaint under Section 134 of the Revenue Code, 2006 are ANNEXURE NO.7 and 6 to this petition).

(c) To issue an order of suitable nature setting aside the proceedings pending before the Opposite Party no. 1 in case no. 04023/2020, computerized case no. T202010460504023 Ms. Medhaj Techno Concept Versus State of U.P. and others under Section 144 of the U.P. Revenue Code, 2006 as also case 17686 of 2018 Computerized no. T 20180460517686 Medhaj Techno Concept Versus Amarnath Arora and others under Section 134 of the U.P. Revenue Code, 2006 (The copy of the plaint under Section 144 of the Revenue Code, 2006 and plaint under Section 134 of the Revenue Code, 2006 L are ANNEXURE NO.7 and to this petition)

(d). To issue an order of suitable nature directing the opposite party no. 1 not to proceed with the proceedings of case no. 04023/2020, computerized case no. T202010460504023 Ms. Medhaj Techno Concept Versus State of U.P. and others under Section 144 of the U.P. Revenue Code, 2006 as well as case no. 17686 of 2018 Computerized no. T 20180460517686 Medhaj Techno Concept Versus Amarnath Arora and others under Section 134 of the U.P. Revenue Code, 2006 (The copy of the plaint under Section 144 of the Revenue Code, 2006 and plaint under Section 134 of the Revenue Code, 2006 are ANNEXURE NO.7 and 6 to this petition)"

Primarily, the submission of the learned counsel for the petitioner is that in a suit instituted under Sections 134 of the U.P. Revenue Code 2006, it pre supposes that a person who has retained possession of any part of land, forming part of the holding of a Bhumidhar, without the consent of such Bhumidhar and as such his possession would be illegal, which will subject him to eviction under the said provision. The suit of such nature can be filed by the Bhumidhar concerned.

It is urged that in contradistinction to the aforesaid provision, Section 144 of the U.P. Revenue Code, 2006 relates to a suit to be filed by a person claiming to be a Bhumidhar regarding declaration of his rights. It is also pointed out that in both suits whether preferred under Section 134 or Section 144 of the Code of 2006, the State and the Gram Panchayat shall be a necessary party.

It has been urged that the respondent no.1 before whom two suits, one under Section 134 and the other under Section 144 of the U.P. Revenue Code 2006 are pending and though both the suits are of different nature and character yet both have been consolidated to be heard together which is an erroneous exercise of jurisdiction.

It is further submitted that the manner in which the respondent no.1 is proceeding and that too in haste, is against the procedure contemplated in the Code of Civil Procedure which is applicable to the proceedings both under Section 134 and Section 144 of the U.P. Revenue Cone 2006.

The attention of the Court has been drawn to the various orders passed by the respondent no.1, in series, to indicate the haste as well as that the procedure as contemplated in law is not being followed for reason best known and as such in the aforesaid circumstances where the proceedings itself are not maintainable before the respondent no.1 yet ignoring this aspect of the matter the respondent no.1 is keen to decide the matter requiring indulgence of this Court.

Submission of the learned counsel for the petitioner is that the dispute in question relates to the agricultural Plots No.901 and 902 of village Gauri, Tehsil Sarojini Nagar,District Lucknow which was recorded in the name of Gopi Nath Rastogi. Gopi Nath Rastogi was survived by his three sons namely Laxman Das Rastogi, Radhey Lal Rastogi and Shyam Lal Rastogi.

It is further alleged that on 12.11.1978, a settlement had been arrived at between the family members of Laxman Das Rastogi, Radhey Lal Rastogi and Shyam Lal Rastogi. In terms of the family settlement, the Plots no.901 and 902 fell in the share of Shyam Lal Rastogi and family. After the death of Shyam Lal Rastogi his son Lal Chand Rastogi sold Plot No.901 in favour of Lal Chand Arora the father of the petitioner. In so far as Plot No.902 is concerned, Lal Chand Rastogi had received the sale consideration from the father of the petitioner and also handed over the possession but the sale deed in question could not be executed on account of applicability of the Urban Land Ceiling Act. It is, however, submitted that the possession of the petitioner was duly established and they continued to remain in possession and are running a marriage lawn by combining the two Plots No.901 and 902 which is duly encircled with a boundary wall with some construction of few rooms and a kitchen within it.

It is further urged that the respondents no.6 to 9 with a malicious intend to harm the present petitioner had initially challenged the rights of the petitioner and disputed the family settlement. Litigation ensued between the petitioner and the private respondents no.6 to 9. The said litigation also reached upto this Court in shape of Writ Petition No.30941 (M/S) of 2018 Amar Nath Arora Vs. Board of Revenue and others. This writ petition was allowed by the High Court by means of judgment dated 07.12.2018 and the matter was remanded to the Court of Nayab Tehsildar to decide the issue of mutation afresh after affording full opportunity of hearing to the parties to lead evidence.

It is also urged that the matter was once again open before the Nayab Tehsildar, in the meanwhile the private respondents on 06.04.2017 executed a sale deed in favour of the private respondent no.5-company in respect of Plot No.902. The private respondent no.5 on the strength of the sale deed has instituted proceedings under Section 134 of U.P. Revenue Code 2006 before the respondent no.1. Simultaneously, the proceedings were being held, one for mutation before the Nayab Tehsildar in terms of the order of remand passed by the High Court and the other before the respondent no.1 under Section 134 of the U.P. Revenue Code wherein the petitioner is being treated to be in illegal possession and his eviction is being sought.

It is also pointed out that another suit has been filed by the private respondent no.5 seeking declaration of his rights in respect of the land in question emanating from the sale deed dated 06.04.2017. In both the aforesaid suits, the petitioner has put in appearance and has raised the question of maintainability. It is also urged that in the suit filed by the respondent for declaration the petitioner has also filed a counter claim, which is also engaging the attention of the respondent no.1.

It is also submitted that after the remand made by the High Court in the Writ Petition No.30941 (M/S) of 2018 dated 07.12.2018 the Nayab Tehsildar passed an order rejecting the contention of the private respondent by means of order dated 12.07.2019. This order was assailed before the Sub Divisional Magistrate, Sarojini Nagar who also dismissed the appeal of the private respondents by means of order dated 08.06.2020.

It has further been pointed out that to protect his rights and possession the petitioner also filed a suit for declaration and injunction before the court of Civil Judge (Senior Division), Lucknow wherein an application for adding the relief of cancellation of the sale deed executed by the private respondents no.6 to 9 in favour of the private respondent no.5 is also pending. It is, thus, submitted that in the aforesaid factual backdrop where the proceedings are being hotly contested yet the respondent no.1 is proceeding without even framing issues and is not allowing the parties to lead evidence as evident from the series of order-sheet brought on record as annexures no.1 to 5 and proceeding with the matter in a summary fashion. The matter is being fixed for hearing which is apparently in excess of jurisdiction vested in the respondent no.1 and is against the settled procedure as applicable to suits.

It is also urged that the proceedings before the respondent no.1 are even otherwise not maintainable; in as much as after the notification issued by the State enhancing the limits of Municipal Corporation, the land in question looses its character of being an agricultural plot and for the said reason the Sub Divisional Magistrate would have no jurisdiction to try both the suits under Section 134 as well as under Section 144 of the U.P. Revenue Code, 2006. For all the aforesaid reasons, it is urged that it is a fit case for quashing of the orders and requiring the indulgence of this Court to keep the respondent no.1 within the bounds of his jurisdiction.

Shri R. P. Singh, learned Additional Cheif Standing Counsel has submitted that the argument of the learned counsel for the petitioner is self contradictory. On one hand, It is urged that the proceedings before the respondent no.1 is not maintainable but on the other hand he himself has pointed out that the petitioner too has filed a counter claim in a suit instituted by the private respondent no.5 under Sections 144 of the U.P. Revenue Code, 2006.

It is also stated that the issue of jurisdiction which has been raised by the learned counsel for the petitioner has not been taken in the written statement or the counter claim filed before the respondent no.1 and the aforesaid questions are being raised for the first time before this Court. It is thus submitted that since the matter is pending before the respondent no.1, the petitioner has ample opportunity to raise the issue before the respondent no.1 who will decide the same and as such the petition is not maintainable for the relief sought.

Shri Shobhit Mohan Shukla learned counsel appearing for the respondent no.5 submits that in so far as the maintainability of the proceedings are concerned, the respondent no.1 has framed the issues. The petitioner himself moved an application for framing of additional issue but even in the said application the issue raised before this Court has not been proposed by the petitioner.

It is further submitted that the alleged family settlement is disputed as it does not relate to the property in question. It has further been submitted that the petitioner has no right or interest over the Plot No.902 and as such the petitioner is in its illegal possession and even otherwise on the own showing of the petitioner, disputed questions are involved which cannot be countenanced by this Court in exercise of power under Article 227 of the Constitution of India and as such the petition deserves to be dismissed, especially when all such issues can be decided by the court of first instance.

Having heard the learned counsel for the parties and from the perusal of the material on record, this Court finds that in so far as the contentions of the parties regarding the validity, authenticity of the family settlement, effect of the statement given by the predecessor in interest of the private respondents no.6 to 9 in a civil litigation, the effect of the sale deed dated 06.04.2017 in favour of the respondent no.5 are all disputed question which have to be considered and decided only after affording opportunity to the parties to lead proper evidence in respect of their respective contentions.

One thing that can be clearly noticed from the certified copies of the order passed by the respondent no.1, whereby two suits filed by the respondent no.5 one under Section 134 and the other under Section 144 of the U.P. Revenue Code, 2006 have been consolidated but surprisingly the issues came to be framed later even though prior thereto the respondent no.1 was fixing the matter for hearing and evidence.

From the perusal of the order-sheet which has been brought on record an impression is quite clear that the respondent no.1 is proceeding with the matter without adhering to the procedure as applicable and prescribed in law.

It will be relevant to notice that the U.P. Revenue Code 2006 clearly provides in Section 214 regarding the applicability of the Code of Civil Procedure 1901 and the Limitation Act, 1963. Section 214 reads as under:-

"214. Applicability of Code of Civil Procedure, 1908 and Limitation Act, 1963-Unless otherwise expressly provided by or under this Code, the provisions of the Code of Civil Procedure, 1908 and the Limitation Act, 1963 shall apply to every suit, application or proceedings under this Code."

From the above, it will be clear that as far as possible the provisions of CPC 1908 as well as the Limitation Act, 1963 are applicable in every suit, application for proceeding under the Revenue Code unless otherwise expressly provided by the U.P. Revenue Code, 2006 itself.

The parties before this Court including the State could not dispute the fact that both the proceedings under Section 134 and 144 of the U.P. Revenue Code are treated as regular suit to which the Code of Civil Procedure applies. One it is not disputed that the provision of Code of Civil Procedure applies then the respondent no.1 ought to have been careful in drawing the order-sheet in a manner with inspires confidence and reflects the true manner in which the proceedings are being taken forward. It is the duty of the respondent no.1 to ensure that upon completion of the pleadings proper and reflective issues are framed to encapsulate the controversy between the parties to enable them to understand the controversy involved as well as lead evidence to prove their respective contentions.

Needless to say that Orders, 14, 16 and 18 of CPC is also applicable, in terms whereof the Court is required to frame both issues of fact and law. It also has the right to frame and try preliminary issue if it is emanating from the plea taken by the parties and even the parties are required to lead evidence which also entails cross-examination of the witnesses and only thereafter the hearing of the suit commences.

Unfortunately, from the reading of the order-sheet brought on record as annexure nos.1 to 5 this conscious application of procedural law is missing.

The parties have informed that the petitioner, herein, has also moved an application for framing additional issue which is engaging the attention of the respondent no.1. Thus, where the pleading has been completed and no further substantive proceedings has yet taken place hence in the aforesaid backdrop, this Court finds that instead of entertaining the petition before this Court which will serve no purpose as the disputed question have to be considered by the court concerned. Accordingly, at this stage the only grievance of the petitioner which remains is in respect of the procedure being adopted by the respondent no.1 which can be redressed by issuing appropriate direction to the respondent no.1.

It is in light thereof, this Court without entering into the merits of the controversy refrains to give any finding regarding the respective contentions as raised before this Court being conscious that the matter is already pending before the respondent no.1, hence this petition is being disposed of with a direction to the respondent no.1 that it shall adhere to the provision as contained in the Code of Civil Procedure while trying the suit under Sections 134 and 144 of the U.P. Revenue Code, 2006; inasmuch as after completion of pleading it shall frame proper issues. Since the petitioner has raised certain other issues regarding maintainability which has not been raised up till now, accordingly the petitioner shall be at liberty of making a fresh application for framing additional issues within a period of ten days from today. In case such an application is moved within the aforesaid period then the court concerned shall after affording opportunity of hearing to the parties shall decide the same and thereafter allow the respective parties to lead their oral as well as documentary evidence as contemplated in law, also permitting them to cross-examine the witnesses if they so choose but ensuring that the liberty is not misused and no unnecessary adjournments shall be granted. Once the evidence is complete thereafter the suits will be decided in accordance with law and needless to say after affording full opportunity to both the parties who shall co-operate in early hearing and as the trial has yet not begun the suits be decided preferably within a period of one year from the date a copy of this order is placed before the court concerned.

It is made clear that the Court has not expressed any opinion on merits regarding the contentions of either of the parties and the court concerned shall decide the pending suits strictly in accordance with law.

With the aforesaid directions, the petition is disposed of. In the facts and circumstances, there shall be no order as to costs.

Order Date :- 27.4.2022

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