Allahabad High Court
Rajesh And Another vs State Of U.P. And 3 Others on 6 December, 2022
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 52
WRIT - B No. - 3293 of 2022
Petitioner :- Rajesh & Another
Respondent :- State of U.P. & 3 Others
Counsel for Petitioner:- Ajay Kumar Sharma
Counsel for Respondent :- C.S.C, Kaushal Kishore Mani
With
WRIT - B No. - 3294 of 2022
Petitioner :- Ram Singh
Respondent :- State of U.P. & 3 Others
Counsel for Petitioner:- Ajay Kumar Sharma
Counsel for Respondent :- C.S.C, Kaushal Kishore Mani
With
WRIT - B No. - 3295 of 2022
Petitioner :- Mahendra @ Palla
Respondent :- State of U.P. & 3 Others
Counsel for Petitioner:- Ajay Kumar Sharma
Counsel for Respondent :- C.S.C, Kaushal Kishore Mani
With
WRIT - B No. - 3296 of 2022
Petitioner :- Roshan Singh and 4 Others
Respondent :- State of U.P. & 3 Others
Counsel for Petitioner:- Ajay Kumar Sharma
Counsel for Respondent :- C.S.C, Kaushal Kishore Mani
With
WRIT - B No. - 3311 of 2022
Petitioner :- Babu Ram and 2 Others
Respondent :- State of U.P. & 3 Others
Counsel for Petitioner:- Ajay Kumar Sharma
Counsel for Respondent :- C.S.C, Kaushal Kishore Mani
WRIT - B No. - 3312 of 2022
Petitioner :- Rajendra and 2 Others
Respondent :- State of U.P. & 3 Others
Counsel for Petitioner:- Ajay Kumar Sharma
Counsel for Respondent :- C.S.C, Kaushal Kishore Mani
Hon'ble Chandra Kumar Rai,J.
1. Supplementary affidavit filed today is taken on record.
2. Heard Sri Ajay Kumar Sharma, counsel for the petitioners, Sri Kaushal Kishore Mani, learned counsel for the respondent - gaon sabha and the learned standing counsel for state respondents in all the connected matters.
3. Since common issues are involved in all the six connected matters, with the consent of the parties, the writ petition is disposed of finally, without inviting counter affidavit.
4. Brief facts of the case are that Suit No.46 of 2017, 51 of 2017, 43 of 2017, 49 of 2017, 52 of 2017, 50 of 2017 under Section 144 of the U.P. Revenue Code, 2006 were filed by the petitioners wherein no issues were framed and without giving opportunity to lead evidence, the suit has been dismissed vide judgment and decree dated 4.9.2017. Against the judgment and decree of the trial court, the petitioner filed Revisions before the Board of Revenue which were dismissed in default vide order dated 8.5.2018. Against the order dated 8.5.2018, an application for recall was filed by the petitioner on 11.4.2022 along with an application for condonation of delay. The Board of Revenue has dismissed the petitioner's recall application on the ground of limitation vide order dated 7.6.2022, hence the writ petitions.
5. Counsel for the petitioners submitted that suits under Section 144 of the U.P. Revenue Code, 2006 for declaration, were filed in respect of the plot in dispute but without framing issue and without giving opportunity to lead evidence issue-wise, suits of the petitioners have been dismissed by the trial court. He further submitted that the revisions filed by the petitioner against the order of the trial court, were dismissed for non-prosecution, accordingly, the recall application, explaining the delay in filing the recall application, giving proper explanation, were filed before the Board of Revenue but the same have been rejected on technical grounds. Counsel for the petitioner placed reliance on the judgment of this Court, reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others wherein it has been held that in place of rejecting the matter on technical grounds, the matter should be decided on merits. He also placed reliance on the judgment of this Court reported in 2020 146 (RD) 186, Babu vs. Mahavir and Others in which it is held that a suit under Section 229-B of the U.P. Z.A. & L.R. Act cannot be decided without framing issues.
6. On the other hand, counsel for the respondent - gaon sabha and the learned standing counsel submitted that the suits were rightly dismissed by the trial court, on the ground that the land in dispute comes under the public utility land, so, no right will accrue to the petitioner, as such, no interference is required against the orders passed by the trial court. He also submitted that recall application filed by the petitioners before the Board of Revenue were barred by 4 years limitation, as such, the same were rightly rejected. He also submitted that there can be no liberal view while considering the reality of cause.
7. I have considered the arguments advanced by learned counsel for the parties and perused the records.
8. There is no dispute about the fact that the petitioner's suit under Section 229-B of the U.P. Z.A. & L.R. Act have been dismissed, without framing issue and there is also no dispute that the petitioner's revision against the judgment of the trial court were dismissed for non-prosecution and the recall application, although, barred by limitation, was dismissed on the ground of limitation.
9. Since the suit under Section 229-B of the U.P. Z.A. & L.R. Act is a suit of special character, as such, same cannot be decided without framing proper issue and giving the parties opportunity to lead evidence issue-wise.
10. This Court in Babu (supra) has held in paragraph nos. 3 to 6, as follows:-
"3. As already observed above by the Court in its order dated 21.02.2019, the proceedings under Section 229-B of U.P.Z.A & L.R Act are regular proceedings where declaration of rights in a holding is decided on the basis of evidence.
4. Learned counsel for respondent no.1 has also not been able to defend the impugned order; rather he appears to agree that the matter ought to have been remanded to the Sub-Divisional Officer concerned.
5. For the aforesaid reasons, this petition is allowed and the judgment and order dated 28.01.2019 passed by the Sub-Divisional Officer, Malihabad, Lucknow in Computerized Case No.T201810460101621; Mahavir vs Babu and others, under Section 229-B of U.P. Z.A & L.R.Act, as is contained in annexure no.1 to the writ petition, is hereby quashed.
6. The Sub-Divisional Officer is directed to decide the suit afresh in accordance with law and also by following the procedure as prescribed under the provision of the Code of Civil Procedure. The Sub-Divisional Officer shall expedite the proceedings of the suit and conclude the same within a period of six months from the date of production of a certified copy of this order."
11. This Court in a case reported in AIR 1983 Allahabad 450 Smt. Kaniz Fatima and another vs. Shah Naim Ashraf has held that if no issue has been framed on a question which arise out of the pleadings of the parties, the Court cannot proceed to record a finding on that point. Paragraph nos. 19 & 20 of the judgment are quoted hereunder:-
"19. There is no dispute with the proposition of law laid down in the aforesaid decision but the true scope of the said rule would be that where the parties have led their entire evidence on all the pleas raised by them, they cannot be permitted to urge at the conclusion of the proceedings or in appeal that they were taken by surprise by non-framing of an issue on that particular point on which they have already exhausted their evidence. In such a case it cannot be said that the parties are prejudiced in any manner whatsoever by non-framing of an issue. But the said rule cannot be construed to cover those cases as well where the evidence was led on issues on which the parties actually went, to trial because it is well settled that the evidence adduced on any particular issue by the parties cannot be made foundation for decision of any other and different plea on which no issue has been framed, because in the absence of an issue on the point they cannot be said to have an opportunity of adducing evidence in support of it or in rebuttal of it. It cannot be assumed that the parties have exhaustively led evidence on all the pleas raised in the pleadings. A party is supposed to lead evidence only on the issues framed in the suit. The other party can object and the Court can always refuse to record evidence which does not relate to the issues framed in the suit. Even if evidence has been led and brought on record, the court will not be justified to look into that evidence for deciding a point not covered by the issues. Thus, it cannot be said that it the parties had led evidence in the case it should be construed to cover all the pleas raised in the pleadings although no issue has been framed on that point.
20. The object of framing the issue is to direct that attention of the parties to lead evidence on that specific issue frame and if no evidence is led (one line obliterated. Ed.) drawn against the concerned parties for holding that it has no evidence to support or to rebut the plea covered by the issue in question. But in the absence of the proper issues covering all the pleas raised in pleadings it cannot be said that the parties have exhausted all their evidence or all the pleas raised by them although the same are not covered by the issues framed. In the view of the matter, we find that in the present case since proper issues have not been framed, which arise out of the pleadings of the parties as well as in the statement of the case recorded under Order 10 Rule 2 of the Code, it cannot be said that the defendants have led all their evidence which they would have led in support of the pleas, which are not covered by the issued framed in the suit. The decision recorded by court below, therefore, cannot be sustained on the said ground urged by learned counsel of the plaintiff. The case, therefore, deserves to be remanded to the trial court for decision afresh after framing proper additional issues in the suit and giving full opportunity to the parties to lead their evidence which they may like to produce in support of their case. Learned court below will carefully scrutinize pleadings and frame necessary additional issues."
12. So far as the filing of the revision and the recall application before the Board of Revenue are concerned, the revision filed by the petitioner, has been dismissed for non-prosecution and the recall application has been rejected on the ground of limitation, as such, in view of the ratio of law laid down by the Apex Court in Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others (supra), dismissal of the recall application and the revision filed by the petitioner, cannot be maintained.
13. Considering the entire facts and circumstances, the impugned judgment dated 7.6.2002 and 8.5.2018, passed by respondent no.2 and judgment dated 4.9.2017, passed by respondent no.3 in all the six writ petitions are liable to be set aside and the same are hereby set aside.
14. The writ petition stands allowed and the matter is remitted back before respondent no.3 to decide the suits afresh, after framing proper issue and after giving opportunity to party to lead evidence issue-wise. The trial court shall decide the suits expeditiously, preferably within a period of 6 months, from the date of production of certified copy of the order.
Order Date :- 6.12.2022
C.Prakash
(Chandra Kumar Rai,J.)
