Hari Shankar vs State Of U.P. And 8 Others
2022 Latest Caselaw 10918 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 

 
Case :- WRIT - B No. - 1917 of 2022
 

 
Petitioner :- Hari Shankar
 
Respondent :- State Of U.P. And 8 Others
 
Counsel for Petitioner :- Ruduvant Pratap Singh,Yogesh Kumar Tiwari
 
Counsel for Respondent :- C.S.C.,Devesh Kumar Verma
 

 
Hon'ble Dinesh Pathak,J.

Heard learned counsel for the petitioner, learned counsel for the caveator-respondent no. 5 and learned Standing Counsel representing respondent nos. 1 to 4.

The petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India challenging the order dated 10.03.2022 (Annexure No. 14) passed by the Commissioner (respondent no. 3), which was affirmed by the Board of Revenue (respondent no. 2) vide its order dated 08.06.2022 (Annexure No. 15).

Grievance of the petitioner is that the respondent no. 3 as well as respondent no. 2 have illegally remitted the matter before the trial court to decide it de novo without going through the evidence on record and without application of mind.

Facts culled out from the averments made in the writ petition are that Hari Shankar (plaintiff-petitioner) has filed a suit in the year 2001 for declaration of his right and title under Section 229-B of U.P.Z.A. & L.R. Act, over Plot No. 817 situated in Village- Rajpura, Tehsil and Pargana- Bhadohi, District- Sant Ravidas Nagar. Aforesaid suit was initially dismissed on the ground of maintainability vide order dated 24.12.2014 passed by the Sub Divisional Officer, Bhadohi. Having being aggrieved with the order dated 24.12.2014 passed by the trial court, plaintiff- petitioner has filed a revision before the Board of Revenue which was allowed and matter was remanded before the trial court to decide the suit issue-wise after framing the issues on the basis of the pleading of the parties. In pursuance of the order dated 03.05.2017 passed by the Board of Revenue, suit filed on behalf of the plaintiff- petitioner was decreed after giving opportunity of hearing to the parties, vide judgment dated 28.08.2021 passed by the Assistant Collector First Class/ Sub Divisional Officer, Bhadohi. Having being aggrieved with the judgdment dated 28.08.2021, defendant-respondent has preferred first appeal, which was allowed and the matter was remanded vide order dated 10.03.2022 passed by respondent no. 3. Having aggrieved with the remand order passed by the learned Commissioner, plaintiff- petitioner has preferred a revision before the Board of Revenue, which was dismissed by order dated 08.06.2022. Being aggrieved against the order passed by respondent nos. 2 and 3, present petition has been filed by the plaintiff- petitioner.

Learned counsel for the petitioner submits that initially suit was dismissed on the ground of long standing entry made in favour of the defendant and applicability of the U.P. Urban Z.A. & L.R. Act. The Board of Revenue has set aside the order of the trial court, vide its order dated 03.05.2017, therefore, the order of the Board of Revenue became final in this respect. It is further submitted that vide impugned order dated 08.06.2022 the Board of Revenue has illegally taken into account the bar of suit under Section 49 of U.P. Consolidation of Holdings Act whereas village, wherein land in dispute is situated, has never came under the consolidation operation, therefore, there is no question of bar under Section 49 of U.P.C.H. Act. It is further submitted that the trial court has decided the suit as per provisions as contained under Section 20 Rule 5 of C.P.C., therefore, observation made by the Board of Revenue is perverse. It is further submitted that the land in question is admittedly ancestral property, therefore, the petitioner has co-tenancy right over the property in question.

Per contra, learned counsel for the caveator-respondent contended that the land in question was throughout recorded in the name of the predecessor in the interest of the contesting respondent and was never recorded in the name of ancestors of both the branches. It is further contended that long standing entry made in favour of the contesting respondent cannot be ignored inasmuch as the valuable right is vested in the recorded tenure holder, therefore, at subsequent stage such entry cannot be changed. It is further contended that even assuming that Section 49 of U.P.C.H. Act is not applicable, same can properly be examined by the trial court in deciding the additional issue no. 4, as framed before the trial court. It is further contended that the trial court has decided the suit in a cursory manner without deciding the each issue, as required under Order 22 Rule 5 of C.P.C. It is next contended that respondent nos. 2 and 3 have rightly remitted the matter before the trial court to decide the case de novo, in light of the direction issued by the Board of Revenue vide its order dated 03.05.2017.

Having considered the rival submissions advanced by the counsel for the parties and perusal of record, it reveals that the judgment dated 04.12.2014 dismissing the suit on the ground of maintainability was quashed by the Board of Revenue, vide its order dated 03.05.2017, relegating the parties before the trial court which was directed to give decision on each issue, after framing the issues on the basis of the pleadings made by the parties. After remand the trial court has framed five issues and also framed four additional issues, which were involved in the suit, on the basis of the pleadings made by the parties.

Perusal of the order passed by the trial court reveals that learned trial court has decided the suit in a cursory manner. After averring the issues and the evidence of the parties adduced, learned trial court has discussed the right and title of the parties over the disputed property in one paragraph which consists of minuscule observation, as well, qua decision on the issues as framed in the judgment. Learned trial court has not applied its mind and not properly appreciated the evidence on record in adjudicating upon the right and title of the parties by stating it's decision on each issue, as required under Section 20 Rule 5 of C.P.C., which has appropriately been pointed out by the Board of Revenue in its order dated 08.06.2022. Issues nos. 1 to 4 are sufficient to consider the right and title of the parties concerned over the property in question. At this juncture it would not be befitting to make any comment with respect to the right and title of the parties over the property in question, as to whether property in question is ancestral or not, which is a subject matter of adjudication before the trial court.

So far as the bar under Section 49 of U.P.C.H. Act is concerned, I am of the opinion that the Board of Revenue has simply made an observation that this issue is a mixed question of fact and law which should also be decided as per the evidence available on record. It has not given any particular finding as to whether the suit is barred under Section 49 of U.P.C.H. Act or not. In this view of the matter, additional issue no. 4 is still open to be decided by the trial court after considering the evidence available on record.

In this conspectus, as above, I do not find any justifiable ground to interfere in the impugned order passed by respondent nos. 2 and 3. All the issues as framed before the trial court are still open to be discussed/adjudicated upon by the trial court after giving due opportunity of hearing to the parties. Nothing has been decided finally. All the pleas/objections as available to the parties can be raised before the trial court to defend their respective cases.

Counsel for the petitioner has failed to substantiate his submission as advanced by him in assailing the impugned orders under challenge. There is nothing on record to demonstrate as to what prejudice cased to the petitioner or is there likelihood of causing miscarriage of justice to the petitioner due to the orders passed under challenge. There is no illegality, perversity or ambiguity in the impugned order passed by respondent nos. 2 and 3, which may warrant indulgence of this Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India.

Accordingly, present writ petition, being misconceived and devoid on merits, is dismissed with no order as to costs.

Before parting, counsel for the parties have jointly prayed to issue a direction to the trial court to decide the suit expeditiously inasmuch as the suit is of the year 2001 and till date parties are hanging in balance.

Considering the whole dispute between the parties, it would be befitting to issue a direction to the trial court concerned, before whom the suit is pending for disposal in pursuance of the order passed by the respondent no. 2 and 3, to decide the suit expeditiously, preferably within a period of six months from the date of production of a certified copy of this order. Both the parties are hereby directed to appear before the trial court on 13.09.2022.

Order Date :- 23.8.2022

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