Kalloo vs Board Of Revenue And Others
2023 Latest Caselaw 1998 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on  08.12.2022
 
Judgment delivered on 19.01.2023
 
Court No. - 7
 

 
Case :- WRIT - B No. - 17294 of 2001
 

 
Petitioner :- Kalloo
 
Respondent :- Board Of Revenue And Others
 
Counsel for Petitioner :- S.K. Chaturvedi,Arvind Srivastava,Onkar Singh
 
Counsel for Respondent :- C.S.C.,H.O.K. Srivastava,Harish Chandra Singh,Namit Srivastava,Nritinjai Pandey,P. P. Chaudhary,Prabhakar Chandel,Prem Prakash Chaudhary,V.K. Singh
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Arvind Srivastava, learned counsel for the petitioner, Sri Prem Prakash Chaudhary, Advocate assisted by Sri Harish Chandra Singh, learned counsel for the contesting respondents and learned Standing counsel for the State-Respondent.

2. The brief facts of the case are that petitioner filed a suit No. 414 under Section 229 B/ 209 of U.P. Z.A. & L. R. Act in respect to Plot Nos. 173, 28, 29, 30, 163, 164, 167, 169, 171, 179, 145 & 33 of Village Machhariya, Tehsil Karwi, District-Chitrakut on the ground that property in dispute has been acquired by petitioner's father Ram Dass who was the sole Bhumidhar of the plot in dispute. The further ground taken in the suit was that after death of Ram Dass Smt. Dulariya, widow of Ram Dass, re-married with Ram Kishun, the brother of Ram Dass and petitioner being son of deceased Ram Dass is the heir as provided under U.P.Z.A. & L.R. Act. The further allegation in the plaint was that Smt. Dulariya was re-married thus, she lost all the interest, if any, over the property in dispute. Smt. Dulariya contested the proceeding of aforementioned suit denying the plaint allegations.

3. The trial Court by Judgment and Decree dated 27.09.1990 decreed the plaintiff's suit No. 414 in respect to all the plots except plot No.33 under Section 229B/209 of U. P. Z. A. & L. R. Act. Trial Court while decreeing the plaintiff's suit has taken into consideration the oral and documentary evidence filed by the parties and recorded finding of fact while deciding the Issue No.2 that plaintiff (Kalloo) is son of deceased Ram Dass. Trial Court while deciding the Issue Nos. 1 & 3 has recorded finding of fact that plaintiff (Kalloo) is Bhumidhar with transferable right of the plot in dispute and Smt. Dulariya had no right to sell the property because she was not recorded as Bhumidhar of the plot in dispute.

4. Against the judgment and decree of the trial Court dated 27.09.1990, two appeals under Section 331(3) of U.P. Z.A. & L.R. Act was filed. One appeal was filed by the defendant Shiv Prashad and another appeal was filed by plaintiff-Kalloo before the Court of Commissioner and the Additional Commissioner Administration, Jhansi Division, Jhansi dismissed both the appeals vide Judgment dated 31.07.1992 recorded finding of fact that plaintiff Kalloo is son of deceased Ram Dass.

5. Against the judgment and decree dated 31.07.1992 passed by Additional Commissioner, second appeal was filed by the defendants before the Board of Revenue U.P. at Allahabad which was registered as Second Appeal No. 6 of 1992-93. The Board of Revenue vide Judgment dated 12.04.2001 allowed the second appeal setting side the orders passed by Courts below and dismissed the plaintiff's suit. Hence, this writ petition.

6. This Court while entertaining the writ petition passed the following interim order dated 10.05.2001

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7. In pursuance of the order dated 10.05.2001, contesting respondents have put in an appearance and filed their counter-affidavit. Petitioner has filed his rejoinder-affidavit also.

8. Counsel for the petitioner submitted that suit under Section 229B/209 of U.P.Z.A. & L.R. Act filed by the plaintiff/petitioner has been decreed in favour of the plaintiff/petitioner execept plot No.33 after framing issues and considering the oral and documentary evidence adduced by the parties. He further submitted that finding of fact has been recorded by the trial Court that plaintiff Kalloo is son of deceased Ram Dass. He further submitted that finding of fact recorded by the trial Court has been maintained in the appeal by the Additional Commissioner while dismissing the appeal filed by the defendants as well as plaintiff. He further submitted that Second Appellate Court by passing two-pages cryptic judgment outrightly allowed the second appeal and dismissed the plaintiff's suit. He further submitted that Second Appellate Court has not reversed the finding of fact recorded by the trial Court and First Appellate Court and allowed the second appeal setting aside the judgment of the Courts below and even dismissed the plaintiff's suit. Counsel for the petitioner submitted that Second Appellate Court has exceeded his jurisdiction while deciding the second appeal without framing and deciding the substantial question of law, as such, the judgment and decree passed by Board of Revenue (Second Appellate Court) be set-aside and judgment and decree passed by the trial Court be affirmed. In support of his argument, counsel for the petitioner placed reliance upon the judgment of this Court reported in 2007 (103) R.D. 327 Ravindra Pal and Others Versus Board of Revenue and others.

9. On the other hand, learned counsel appearing for the contesting respondents submitted that Board of Revenue has rightly allowed the second appeal filed by the defendants. It is further submitted that the issue relating to parentage cannot be decided by the Revenue Court. In support of his argument regarding jurisdiction of Revenue Court to decide the parentage issue, placed reliance upon the judgment reported in 2019 (11) ADJ 490 Kedar Versus Radha Krishna Mahavidyalaya & 2 Others. He further submitted that the case was cited by counsel for the petitioner that Board of Revenue should frame the substantial question of law while deciding the second appeal will not apply in view of the decision of the Hon'ble Apex Court in the case of State of Uttarakhand Versus Mohan Singh & Others reported in 2012(10) JT 543 : 2013(118) R.D. 9. He further submitted that Board of Revenue has rightly exercised his Second Appellate Jurisdiction and no useful purpose will be served by remanding the matter to the Board of Revenue to decide second appeal afresh. He further submitted that this writ petition is liable to be dismissed.

10. I have considered the argument as advanced by learned counsel for the parties and perused the record.

11. There is no dispute about the fact that suit under Section 229 B/ 209 of U.P.Z.A. & L.R. Act by plaintiff/ petitioner was decreed by trial Court by detailed judgment recording finding of fact issues-wise that plaintiff is son of deceased Ram Dass and is entitled to the decree of declaration in his favour in respect to the plot in dispute except plot No.33. The decree of trial Court has been maintained in appeal by Additional Commissioner. Second Appellate Court has allowed the second appeal setting-aside the judgment of the trial Court and dismissing the plaintiff's suit.

12. Since, the trial Court has decreed the plaintiff's suit after considering the oral and documentary evidence on record, recording finding of fact that plaintiff/petitioner (Kalloo) is son of deceased Ram Dass, the decree of the trial Court has been maintained by First Appellate Court recording the finding of fact in favour of the plaintiff/petitioner, but Board of Revenue by passing cryptic judgment in two pages has allowed the second appeal without reversing the finding of fact recorded by the two Courts below in accordance with law.

13. There is no proper exercise by the Board of Revenue while deciding the second appeal. This Court in the case reported in 1985 RD 93 Sharda Devi Vs. Board of Revenue Allahabad and Others has held that judgment of reversal cannot be passed by the Board of Revenue without reversing the finding of fact recorded by the trial Court as well as First Appellate Court in accordance with law. The paragraph Nos.17 & 24 of the judgment are as follows:-

"17. There is a string of decision i.e. Afsar Sheikh vs. Suleman Bibi (4) Ladli Prasad vs. Karnal Distillery Co. Ltd. (5), Mst. Rajrani vs. Rajaram (6) and Khrbuja Kuer vs. Jang Bahadur (7) and on the basis of ratio of these cases, it is clear that finding that no fraud or collusion was proved by respondent Nos.2 to 6 are findings of fact and the Board of Revenue has exceeded its jurisdiction under Section 100 C.P.C. to set aside these findings of fact. In view of the provisions of Section 331 (4) of the Act second appeal would lie only on the question of law and no on the question of fact, hence Board of Revenue has clearly committed an error apparent to the fat of record in setting aside the findings of fact recorded by first appellate court and the trial court about fraudulent nature of transaction. Further just on suspicion it cannot be assumed nor findings of fact can be set aside but the Board of Revenue has held that there appears to be some suspicion that after the decree in suit under Section 176 of the Act why should successful party enter into compromise, surrender the rights in suit under Section 229-B of the Act. But the trial court could not judge the evidence of the parties. But if the convenience of parties lay in entering into compromise subsequently, Board of Revenue should not stand in the way. It is well known that bad compromise is better than a good law suit. In case the vendeees have entered into compromise admitting claim of petitoner hence theyhad no rights in the plots to execute the sale deed in favour of respondents Nos. 2 to 6.

24. In the aforesaid provision the emphasis by the Legislature is on all the interest which the transferor is then capable of passing in the property. In other words it is only the interest of the transferor which he is capable of conveying in the property that would pass to* the vendee and in case he is not capable of passing any interest in the property, nothing would pass to the vendee. In the instant case the vendors were left with no rights as they lost all rights, title and interest in the plots in dispute in the aforesaid compromise and these plots were given in favour of the petitioner and in lieu thereof some corresponding plots were given to the vendors. Hence the vendors had no interest left so as to convey the same to the transferors. It is thus crystal clear that the vendees had not derived any right, title or interest in the sale deed executed by the vendors in their favour. In view of the discussion hereinbefore, I am of the view that the Board of Revenue has clearly exceeded jurisdiction under Section 100 C.P.C. read with Section 331(4) of the Act. There was no scope of the second appellate Court to set aside the findings of fact recorded by the Additional Commissioner about the fraudulent or collusive nature of the decree. The findings of fact were also based on evidence and howsoever grossly erroneous they may appear to be, when in fact they were not erroneous, much less grossly erroneous, the second appellate Court had no jurisdiction to interfere with the same. The vendors, respondent Nos. 7 and 8 had no right, title or interest left in the plots in dispute after admitting the claim of the petitioner in the compromise decree, so as to be able to transfer any interest by the sale deed dated 11.7.1966 in favour of vendees. Hence the vendees did not derive any title out of the sale deed.

25. In the result the writ petition succeeds and is allowed and the judgment and order of the Board of Revenue dated 30.7.1976 is hereby quashed. The petitioner would also be entitled to her cost."

14. The order passed by the Board of Revenue decreeing the plaintiff suit for declaration by passing cryptic judgment cannot be sustained in the eye of law. The manner in which impugned judgment has been passed by the Board of Revenue, can be a judgment of dismissal of second appeal, affirming judgment of courts below but this cannot be a judgment of reversal by allowing the second appeal and dismissing the plaintiff's suit under Section 229 B/ 209 of U.P.Z.A. & L.R. Act in the exercise of second appellate jurisdiction.

15. Considering the judgment rendered in Sharda Devi (supra) the judgment of reversal passed by Board of Revenue cannot be sustained in the eye of law. The Board of Revenue while passing the impugned judgment has dismissed the plaintiff's suit setting-aside the judgment of the two Courts below without reversing the finding of fact recorded by trial Court and First Appellate Court.

16. So far as the argument advanced by learned counsel for contesting respondents that no substantial question of law are required to be framed while deciding the second appeal is concerned, it will be relevant to mentioned that in view of the judgment of this Court rendered in Sharda Devi (supra), the judgment of reversal cannot be passed in the manner the impugned judgment has been passed by the Board of Revenue setting-aside the judgment of two Courts below, there should be proper consideration of the finding of fact recorded by Courts below and the evidences relied upon by the Courts below but Second Appellate Court has exceeded its jurisdiction while passing the impugned judgment, as such, the argument advanced by learned counsel for contesting respondents cannot be accepted.

17. So far as the argument advanced by counsel for the contesting respondents that parentage issue cannot be adjudicated by the Revenue Court is concerned, It will be relevant to mention that suit under Section 229B of the U.P.Z.A. & L.R. Act are suit of special character, as such, this cannot be argued that parentage issue cannot be decided by the Revenue Court. This Court in the case of Pan Kumari Versus Board of Revenue and others reported in 2005 (99) RD page 529 has held that suit under Section 229B of the U.P.Z.A. & L.R. Act fall within the excepted category and such suit even though they involve declaration are suits of a special character.

18. Scope of suit under Section-229-B of U.P.Z.A.& L.R. Act as well as exercise of Second appellate jurisdiction has been discussed in another judgment of this Court reported in 2019 (142) RD 170 Amrit Lal and others Vs. State of U.P. and other Vs. State of U.P. and others. Paragraph No.10 of the judgment is relevant which is as follows:-

"10 However, so far as the validity of the order passed by the second appellate court on the other grounds is concerned, it is noticed that the second appellate court has upheld the judgment passed by the learned trial court whereby the suit filed by the petitioners was dismissed. The judgment and order passed by the learned trial court is on record as annexure no.11 to the writ petition, a perusal of which reveals that though three issues were framed; (i) whether late Ram Gopal was a co-tenant in the land in dispute? (ii) whether the land in dispute is ancestral property of the plaintiffs-petitioners? (iii) as to whether initially Sirdari and thereafter Bhumidhari rights were confirmed of Hari Ram, father of respondent no.5 and thus it is the respondent no.5, who is Bhumidhar of the land in question. The order passed by the Sub Divisional Officer dismissing the suit does not discuss any evidence at all, it only makes a mention of certain evidences, however, no discussion is available on the said judgment passed by the Sub Divisional Officer. The record of the case reveals that there is enough evidence which ought to have been weighed by the learned trial court before arriving at any conclusion or decision. The suit under section 229-B of U.P.Z.A. & L.R. Act is a regular suit and proceedings of such a suit grant or refuse declaratory decree, however, the manner in which the Sub Divisional Officer has passed the order in this case makes the entire proceedings drawn by him as if the proceedings are summary in nature. In a suit under section 229-B of U.P.Z.A. & L.R. Act valuable rights of the parties to hold the land are decided and hence the evidence available on record need to be considered and its effect is also required to be not only discussed but weighed by the learned trial court. In any such suit seeking declaration of rights, the proceedings should be drawn in a cursory manner. The order passed by the Sub Divisional Officer in this case is absolutely non-speaking and cryptic which does not discuss evidence in detail, neither the effect of the evidence has been discussed or analyzed appropriately."

19. In Another case reported in 1984 R.D. 42 (Ram Chander Dubey Vs. Deputy Director of Consolidation and others) this court has held that Consolidation authorities have full jurisdiction to decide the question of parentage when they are called upon the decide the claim of the parties in the disputed land.

20. In view of ratio of law laid down by this Court the argument advanced by learned Counsel for the respondent that revenue court cannot decide the parentage issue while deciding suit under Section 229-B of U.P.Z.A.& L. R. Act is misconceived. The judgment relied upon by counsel for the respondent in Kedar (supra) will not apply in the present set of facts as in that case issue was different to the issue involved in the present case. In the case of Kedar (supra) the issue was with respect to jurisdiction of Civil Court and family court as such the judgment of Kedar (supra) will not apply in preset cast.

21. Considering the entire facts and circumstances, the impugned judgment and order dated 12.04.2001 passed by Board of Revenue is liable to be set aside and is hereby set-aside. The Writ Petition stands allowed. The judgment and decree passed by the trial Court dated 31.07.1992 is hereby affirmed.

22. No order as to costs.

Order Date :- 19.01.2023

Vijay Kumar Sahu/PS*