Smt. Phoola Devi And Another vs Bali (Dead) Thru. L.Rs. Pyari Devi ...
2023 Latest Caselaw 21378 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:52678
 
Court No. - 19
 

 
Case :- CIVIL MISC REVIEW APPLICATION No. - 93 of 2023
 

 
Applicant :- Smt. Phoola Devi And Another
 
Opposite Party :- Bali (Dead) Thru. L.Rs. Pyari Devi And 6 Others
 
Counsel for Applicant :- Vidya Prasad Nagaur,Pawan Kumar Singh
 

 
Hon'ble Jaspreet Singh,J.

Heard Shri V.P. Nagaur, learned counsel for the review-appellants.

The instant review application has been moved seeking review of the judgment dated 07.07.2023 whereby the Second Appeal No.141 of 1994 was dismissed at the stage of Order XLI Rule 11 CPC.

The two fold submission has been made by the learned counsel for the review-appellants for seeking review of the judgment and that is since the suit for cancellation has been dismissed and the second appeal has also been dismissed, certain rights of the parties who may have inherited any share under Section 171 of the U.P. Z.A. & L.R. Act, their such rights may not be affected and therefore, it should be left open for the issue of succession to be considered in any appropriate proceeding.

The second ground as urged by the learned counsel for the review-appellants is that since the second appeal was dismissed in limine and no points for determination were made as required by under Order XLI Rule 31 CPC, the Court ought to have first formulated the aforesaid point of determination upon which the appellant should have been heard and only then such a procedure for dismissing the appeal could have been adopted.

The Court has heard learned counsel for the appellant and perused the material on record.

Apparently the suit from which the second appeal arises was a suit for cancellation of the sale-deed. The issue of succession which has now been raised was never in issue either before the Courts and any finding which has been given by this Court is not on the issue of succession but on the merits of the controversy involved and for the purposes of ascertaining whether the second appeal is worthy for admission or not.

Since, by means of the judgment dated 07.07.2023, the Court found that the second appeal did not involve any substantial question of law, consequently, the judgment of the two Courts were affirmed while dismissing the second appeal.

It is in light of the aforesaid, the first submission that the issue of succession may be left open pales into insignificance and the submission is turned down.

The other ground which has been raised is also without substance for the reason that it is only once the Court finds that there is any substantial question of law, it is obliged to formulate the same then hearing of the matter come up and then points for determination may be framed. In the instant case, the Court has found that no substantial question is involved and dismissed the appeal.

Accordingly, both the submissions of the learned counsel for the review-appellants do not find favour with this Court rather this Court finds that an attempt is being made to get a rehearing of the appeal on merits which is not permissible in exercise of review jurisdiction. Consequently, the review application is dismissed. Consigned to record.

Order Date :- 9.8.2023

Rakesh/-