Manish Shukla vs Board Of Revenue U.P. At Allahabad ...
2023 Latest Caselaw 5648 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 7
 

 
Case :- WRIT - C No. - 31271 of 2022
 
Petitioner :- Manish Shukla
 
Respondent :- Board Of Revenue U.P. At Allahabad And 3 Others
 
Counsel for Petitioner :- Ajay Kumar,Chandrama Singh
 
Counsel for Respondent :- C.S.C.,Dheeraj Kumar Dwivedi
 

 
Hon'ble Chandra Kumar Rai,J.

1. Counsel for the petitioner is permitted to implead Upziladhikari, Kanpur Nagar as respondent No.5 in the array of parties during the course of day.

2. Heard Mr. Ajay Kumar, Counsel for the petitioner, learned Standing Counsel for the State-respondents and Mr. Dheeraj Kumar Dwivedi for respondent No.4.

3. The instant petition has been filed against the order of Board of Revenue dated 26.4.2022, by which, the second appeal filed by respondent No.4 has been allowed setting aside the judgment of the Courts below and proceeding of the suit has been remitted back before the Trial Court to decide the suit afresh after impleadment of the Gaon Sabha.

4. Counsel for the petitioner submitted that the suit under Section 144 of the U.P. Revenue Code, 2006 filed by respondent No.4 has been dismissed by the Trial Court and the decree has been maintained in first appeal but Appellate Court has arbitrarily allowed the second appeal and remitted the matter back before the Trial Court for fresh trial. He further submitted that suit for declaration filed by respondent No.4 was rightly dismissed by Trial Court and First Appellate Court as no claim was raised during consolidation operation. He further submitted that Second Appellate Court has exceeded his jurisdiction in allowing the second appeal, as such, the impugned judgment be set aside against the order of Trial Court.

5. In reply, Counsel for respondent No.4 submitted that suit under Section 144 of the U.P. Revenue Code, 2006, filed by respondent No.4 has been dismissed without framing issues and giving parties to lead the evidence according to the issues framed in the suit as such the same was wholly illegal. He further submitted that there is no limitation for filing the suit under Section 144 of the U.P. Revenue Code, 2006 but the plaintiff suit has been dismissed arbitrarily holding that it is barred by limitation. He further submitted that Second Appellate Court has allowed the second appeal and remitted the matter back for filing fresh suit under Section 144 of the U.P. Revenue Code, 2006.

6. Counsel for the respondent No. 4 placed reliance upon the judgment of this Court reported in 2020 RD (140) 186 Babu vs. Mahaveer in which it has been held that unless the issues are framed in the suit for declaration under Section 144 of the U.P. Revenue Code, 2006, the judgment cannot be passed on merit. He further submitted that there is no limitation for filing suit under Section 144 of U.P. Revenue Code, 2006. He finally submitted that no interference is required against the order of Board of Revenue by which the matter has been remanded back to the Trial Court to decide the suit afresh on merits.

7. I have considered the arguments advanced by learned counsel for the parties and perused the record.

8. There is no dispute about the fact that the suit under Section 144 of U.P. Revenue Code, 2006 filed by respondent No.4 has been dismissed without framing issue in the suit.

9. There is also no dispute about the fact that the suit has been dismissed on the ground of limitation also and the judgment and decree of the Trial Court has been maintained in First Appeal but in Second Appeal, the judgments of Trial Court and First Appellate Court have been set aside and the matter has been remanded back to the Trial Court to decide the suit afresh on merit.

10. Since, the suit under Section 144 of U.P. Revenue Code, 2006 has been decided without framing issue, as such, in view of ratio of law laid down by this Court in Babu (Supra), judgment passed by the Trial Court cannot be maintained on merit. The paragraph Nos. 2, 3, 4, 5 & 6 of the judgment rendered in Babu (Supra) is relevant for perusal which are as under:-

"2. The manner in which the suit instituted by the respondent no.1 under Section 229-B of U.P. Z.A. & L.R.Act has been decided by the impugned order dated 28.01.2019 cannot be appreciated. The trial court has neither framed issues nor has provided any opportunity of leading evidence to the parties to prove their respective cases. The provisions contained in Code of Civil Procedure has been given a go bye.

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 the 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 arises out of the pleading of the parties, the Court cannot proceed to record a finding on that point. The paragraph nos. 19 & 20 of the judgement are relevant, which are as under:-

"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 limitation question is concerned, the law is well settled that there is no limitation for filing suit for declaration under Section 229 B of U.P.Z.A. & L.R. Act. This Court in the case reported in 2005 (99) R.D. 529, Pan Kumari Vs. Board of Revenue, U.P. at Allahabad & Others has held that there is no limitation for filing suit under Section 229 B of U.P.Z.A. & L.R. Act, the paragraph no.6 of the judgment is relevant, which is as follows:

"6. Sri. R.C. Singh submits that the suit under Section 229-B was barred by limitation. In support of this contention he relies upon Section 341 of the U.P. Zamindari Abolition and Land Reforms Act, which provides that the Limitation Act would be applicable to proceedings under the U.P. Zamindari Abolition and Land Reforms Act and limitation in a suit for declaration would be governed by Article 137 of Schedule 1 of the Limitation Act as there is no period prescribed for such a suit under the U.P.Z.A. & L.R. Act. Section 341 itself provides that the provisions of certain Acts including the Limitation Act shall apply to the proceedings under the U.P.Z.A. & L.R. Act unless otherwise provided in the U.P.Z.A. & L.R. Act. Rule 338 of the U.P.Z.A. and L.R. Rules provides that the suits, applications and other proceedings specified in Appendix III shall be instituted within the time specified therein for them respectively. Recourse to the provisions of the Limitation Act would be available only If there is no provision under Rules in respect of the period of limitation for the different classes of suits or proceedings mentioned therein. In Appendix III the period of limitation provided for different classes of suits has been given. As regards suits under Section 229-B column 4, which prescribes the period of limitation for different classes of suit says "none". It would therefore be treated that there is no limitation for filing a suit under Section 229-B. Section 9 of the Civil Procedure Code provides that all suits of civil nature shall be instituted in the civil Court except those, which have been excepted. A suit under Section 229-B falls within the excepted category and such suits even though they involve declaration are suits of a special character. Article 137 of the Limitation Act relied upon by Sri Singh in any case is applicable only to applications and not to suits and therefore has no play. When the rule making authority has provided different periods of limitation for different classes of suits it would be treated that provisions prescribing period of limitation in the Limitation Act would not be applicable to suits under the U.P.Z.A. & L.R. Act. Section 189 U.P.Z.A. & L.R. Act sets out the circumstances in which the interest of a bhumidar is extinguished. Clauses (a), (aa) and (b) relate to cases where the bhumidar dies leaving no heir, or where he has let out his holding in contravention of the provisions of the Act or where the land is acquired. Sub-section (c) of Section 189 provides that where a bhumidar has lost-possession the bhumidari right would extinguish when the right to recover possession is lost. In Ram Naresh v. Board of Revenue 1985 Rev Dec. 444 relied upon by Sri R.C. Singh it was held that the provisions of Section 27 of the Limitation Act would be attracted to suits instituted under Section 229-B. Section 27 provides that on the determination of the period limited for instituting a suit for possession the right to such property shall be extinguished. The rule is an exception to the general rule that limitation bars the remedy but does not extinguish the right. If, however, a person is in possession his right can not be extinguished unless the case is covered by Clauses (a), (aa) and (b) of Section 189. He can therefore seek a declaration of his right at any point of time. If a person has been dispossessed he would have to institute a suit under Section 129 U.P.Z.A. & L.R. Act. Appendix III provides the period for limitation for filing a suit under Section 209. It would follow therefore that a suit under Section 229-B would be barred by limitation the bhumidar is out of possession and his right to file a suit under Section 209 is barred by limitation. The finding of fact recorded on the question of possession is that the plaintiffs have established their continuous possession over the disputed land. The finding is not shown to be vitiated by any error. As the rights of the plaintiff were never extinguished no question of limitation arises. For the reasons given above the writ petition lacks merit and is dismissed."

13. So far as exercise of jurisdiction of this Court under Article 226 of the Constitution of India against the impugned order of Board of Revenue is concerned, this Court in the case reported in 1985 R.D. 71, Paras Nath Singh Vs. Deputy Director of Consolidation and Others has held that if as a result of quashing the impugned order another illegal order would be restored then Court would refuse to interfere with the impugned order. Paragraph No.21 of the judgment is as follows:

"21. It is, no doubt, correct to say that any order passed without jurisdiction is a nullity and deserves to be quashed. But if as a result of quashing that order another wrong and illegal order would be restored, this Court would refuse to interfere with the impugned order which appears to be quite proper equitable and just order. As mentioned above, the power under Article 226 of the Constitution is devised to advance justice and not to thwart it. To me it appears to be well settled that an order which is illegal cannot be quashed or set aside in writ jurisdiction if quasing of it results in bringing on record another illegal order."

14. Considering the entire facts and circumstances, of the case as well as ratio of law laid down by this Court there is no illegality or infirmity in the judgment of Board of Revenue by which the judgment and decree of the Trial Court and First Appellate Court have been set aside and the matter has been remitted back to the Trial Court to decide the suit afresh on merit.

15. No interference is required against the impugned judgment.

16. Writ petition is devoid of merit and, is accordingly, dismissed.

17. However, Trial Court - Upziladhikari, Kanpur Nagar is directed to decide the suit under Section 144 of U.P. Revenue Code, 2006 after framing issue and permitting authorities to lead evidence, in accordance with law. The suit will be decided, expeditiously, preferably within a period of one year from the date of production of certified copy of this order.

Order Date :- 21.2.2023

Vandana Y.