Imam Ali vs State Of U.P. And 8 Others
2022 Latest Caselaw 9613 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 32
 

 
Case :- WRIT - B No. - 1005 of 2022
 

 
Petitioner :- Imam Ali
 
Respondent :- State Of U.P. And 8 Others
 
Counsel for Petitioner :- A.K. Maurya I,Yakub Ansari
 
Counsel for Respondent :- C.S.C.,Achal Singh,Anuruddh Chaturvedi,Lalji Chaudhary
 

 
Hon'ble Dinesh Pathak,J.

Heard learned counsel for the petitioner, learned counsel for the caveator (respondent no. 4 and 5) and learned Standing Counsel.

Sri Anuruddh Chaturvedi, Advocate has filed memo of appearance on behalf of respondent no. 6 (Hanif) and also for respondent no. 4 (Daduliya), which is taken on record.

In re: Substitution Application No. 3 of 2022

It is submitted that after filing the present writ petition, respondent no. 6 has died leaving behind his wife and three sons as heirs and legal representatives.

There is an office report dated 02.08.2022 that steps have not been taken to serve the heirs and legal representatives of the deceased in pursuance of the order dated 27.07.2022 passed by the Registrar on the substitution application.

Perusal of record reveals that it is a fresh writ petition filed on 29.04.2022. Therefore, this petition could not be heard due to one or other reason and is listed as fresh to be heard on admission. Till date court has not applied its mind with respect to the merits of the case.

Counsel for the respondent no. 4 has raised objection that the daughters of respondent no. 6 have not been brought on record to be substituted in the array of parties. So far as the objection raised by the counsel for the caveator is concerned, it is no more res integra that the purpose of the substitution application is to substitute the heirs and legal representatives of the deceased for survival of the writ petition and if the daughters are entitled for their share over the property of the Hanif, they can pursue proper recourse before the court competent.

In view of the above, in my opinion, present application deserves to be allowed.

Accordingly, the substitution application is allowed.

Counsel for the petitioner is permitted to substitute the heirs and legal representatives of respondent no. 6 in the cause title of the present writ petition as respondent nos. 6/1 to 6/4 respectively during course of the day.

Order on the Writ Petition

Heard learned counsel for the petitioner, Sri Lalji Chaudhari (Advocate) and Sri Anirudh Chaturvedi (Advocate) for respondent no. 4, learned counsel for the Land Management Committee and the learned Standing Counsel representing respondent nos. 1A, 1, 2 and 3. Memo of appearance filed by Mr. Chaturvedi on behalf of Hanif (respondent no. 6) has got relevance in the eventuality of his death.

Instant writ petition is arising out of final judgment/decree dated 25.07.2015/29.07.2015 passed by the Up Ziladhikari, Karvi, Chitrakoot in Partition Suit No. 11 of 2009.

Facts culled out from the averments made in the writ petition reveals that Daduliya (respondent no. 4) has filed a suit for partition under Section 176 U.P.Z.A. & L.R. Act. The trial court, vide order dated 16.04.2010, passed the preliminary decree in the suit, which became final between the parties inasmuch as same has not been challenged before any competent court. At later stage final judgment/decree dated 25./29.07.2015 has been passed by the trial court on the basis of the report for lots dated 15.07.2015 submitted by the Lekhpal. Having being aggrieved against the final judgment/decree dated 25./29.07.2015, Imam Ali (petitioner herein) has filed first appeal before the Commissioner, Chitrakoot. Aforesaid appeal was partly allowed vide order dated 17.11.2016 remitting the matter back before the trial court to re-examine the same after calling for the report of the concerned Tehsildar or Naib Tehsildar qua two points; first utility of land allocated to the parties and second, availability of the access road to the parties. In pursuance of the remand order dated 17.11.2016, learned trial court has passed the order dated 15.12.2016 calling for the report from the Tehsildar, who has submitted its report dated 01.04.2017. Against the aforesaid report present petitioner has filed his detail objection dated 12.04.2017 and against the said objection, contesting plaintiff/respondent has also filed his objection/reply dated 19.04.2017. After going through the record and hearing the plea of both the parties, learned trial court has passed the order dated 22.06.2017 affirming the earlier judgment dated 25.07.2015. Feeling aggrieved with the subsequent order dated 22.06.2017, present petitioner has preferred first appeal, which was dismissed by the learned Commissioner vide its order dated 28.11.2017. On second appeal being filed on behalf of the petitioner, same was dismissed by the Board of Revenue, vide order dated 01.09.2021, which orders are under challenge before this Court.

In his submissions, learned counsel for the petitioner has tried to raise new plea, assailing the report dated 01.04.2017 submitted by the Tehsildar and the orders passed by all the three revenue courts, with respect to the non-compliance of the provision as enunciated under Rule 131 of U.P.Z.A. & L.R. Rules and also the shape/location of the lots, which have been allocated to the parties. He has also submitted that plot nos. 2359 and 2418 have not been allotted in the share of any party. It is next submitted that report was submitted without inspecting the spot and the impugned orders are liable to be quashed being illegal and unwarranted under the law.

Per contra, learned counsel for the contesting respondent has vehemently opposed the present petition and contended that at this juncture these new pleas cannot be entertained, inasmuch as, vide order dated 17.11.2016, passed by the learned Additional Commissioner, the matter was remitted only on two points and the said order has become final between the parties. Said order has not been challenged before any competent court. Report dated 01.04.2017 was passed after inspecting the spot. Trial Court has passed the order after considering the objections filed by parties to said report. It is next contended that all the orders passed by the revenue courts are legal, valid and warrants no interference of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. Therefore, present writ petition deserves to be dismissed with cost.

Having considered the rival submissions advanced by the counsel for the parties and perusal of the impugned orders challenged in the present writ petition, it reveals that the order dated 17.11.2016 passed by the learned Additional Commissioner became final between the parties. Vide remand order dated 17.11.2016 parties were relegated before the trial court for limited purpose only with respect to two issues; first, the utility of the land allocated to the parties and second, availability of access road to them. In compliance of the remand order dated 17.11.2016, learned trial court has passed the order dated 16.12.2016 directing to the Tehsildar to submit a report of spot in the light of observation made in order dated 17.11.2016. The Tehsildar has submitted its report dated 01.04.2017 (Annexure No. 11), which reveals that after examining the lots on the spot he found no perversity in the earlier report submitted by the Lekhpal and there is no hindrance in the use of lots allocated to the parties and the access area provided to them. Against the report dated 01.04.2017 submitted by the Tehsildar, present petitioner has filed his detail objection dated 12.04.2017 with an averment that no spot inspection has been conducted by the Tehsildar and there is no violation of provisions, as enunciated under Rule 131 of U.P.Z.A. & L.R. Rules. He has also taken a plea in the objection that the Tehsildar has not submitted its independent and individual report after conducting inspection on spot in pursuance of the order passed by the court. Against the said objection dated 12.04.2017, respondent no. 4 has filed his reply dated 19.04.2017 denying all the allegations made in the objection dated 12.04.2017.

After careful consideration of the report submitted by the Tehsildar and the objections filed by the parties, learned trial court has passed the order dated 22.06.2017 accepting the report of the Tehsildar and confirmed the previous judgment /decree dated 25/29.07.2015, which was passed on the basis of the report submitted by the Lekhpal. The order passed by the Sub Divisional Officer dated 22.06.2017 was affirmed by the Commissioner in appeal filed on behalf of the present petitioner. Likewise, Board of Revenue has also affirmed the order passed by the trial court as well as the first appellate court on the second appeal filed on behalf of the present petitioner.

So far as plea raised by the counsel for the petitioner that the provisions of Rule 131 of U.P.Z.A. & L.R. Rules are not complied with by the court below is concerned, in my opinion it is not entertainable at this stage, inasmuch as the order passed by the Additional Commissioner dated 17.11.2016 was passed on a limited issue and beyond the scope of that judgment fresh issue cannot be raised at the subsequent stage. There is nothing on record to show that the order dated 17.11.2016 was ever challenged before the higher court. This aspect of the matter has also carefully been considered by the Board of Revenue in its order dated 01.09.2021. Second plea raised by the petitioner, that the Tehsildar has not went on spot, is not acceptable inasmuch as in his report he has specifically mentioned that he went on the spot to inspect the allocation of lots to the parties. Tehsildar has inspected the spot, in the light of the report submitted by Lekhpal, qua utility of land and availability of access road. He has shown concurrence with the report dated 15.12.2014 submitted by the Lekhpal. It is apposite to mention that against the report dated 05.12.2014 both the parties have filed their respective objections and after considering all these objections, final judgment/decree was passed on 25./29.07.2015.

In my considered opinion, in this case, Tehsildar has affirmed the earlier report dated 05.12.2014, that too, after going on spot. There is no need to submit a separate detailed report explaining each and every thing on spot unless he finds something adverse over there to be explained in his report. Showing his concurrence with the report of Lekhpal, after spot inspected, is sufficient for compliance of order dated 17.11.2016. Learned counsel for the petitioner has failed to substance his submission in assailing the order under challenge. All the three courts have carefully considered the matter and decided the same in light of the remand order dated 17.11.2016. Objection raised by petitioner against the report dated 01.04.2017 submitted by Tehsildar has been considered by the courts below. This court has not found any substance as well qua plea of not allotment of area over Plot No. 2359 and 2418. All the parties have been allotted area over there according to their respective shares.

I found no justifiable ground to interfere in the impugned orders. Nothing has been pointed out specific with respect to the violation of the order dated 17.11.2016. There is nothing on the record to demonstrate as to what prejudice caused to the petitioner, or there is likelihood of causing miscarriage of justice to the petitioner, due to the orders under challenge. There is no illegality, ambiguity and irregularity in the order under challenge, which may warrant indulgence of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.

Accordingly, the writ petition, being devoid of merit and misconceived, is dismissed with no order as to costs.

Order Date :- 8.8.2022

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