Anil Sharma And 2 Others vs Lokmani Sharma And 8 Others
2023 Latest Caselaw 7256 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 4
 

 
Case :- WRIT - B No. - 726 of 2020
 

 
Petitioner :- Anil Sharma And 2 Others
 
Respondent :- Lokmani Sharma And 8 Others
 
Counsel for Petitioner :- Rahul Sahai,Ashish Kumar Mishra
 
Counsel for Respondent :- Krishna Kant Singh,Anil Kumar Aditya,Manu Saxena
 

 
Hon'ble Jayant Banerji,J.

1. Heard Shri Satish Kumar Pandey, learned counsel holding brief of Shri Rahul Sahai learned counsel for the petitioner and Shri Anil Kumar, learned counsel appearing for respondent No. 1. The State of U.P. has not been made party in the present Writ Petition. Respondent No. 8 and 9 are respectively, the Nagarpalika Parishad and the Gaon Sabha. Notice on behalf of respondent No. 8 has been accepted by Shri Manu Saxena, learned counsel.

2. This writ petition has been filed seeking quashing of the order dated 11.09.2019 passed by the Board of Revenue in case No. 01186 of 2017 (computerized Case No. C201711000001186 (Lokmani Sharma Vs. Anil Sharma) (Annexure -1 to the writ petition).

3. It appears that the dispute between the parties arose out of proceedings under Section 176 of the U.P. Zamindari Abolition and Land Reform Act, 1950 in respect of certain plots of land. To cut a long story short, after preparation of preliminary decree, a 'kurra' was prepared, objections were invited and thereafter a final decree was prepared. The final decree was subjected to challenge by the contesting respondent in Revision No. 40 of 2015-16 which came to be allowed on 30.05.2016. The operative part of order dated 30.05.2016 provided for modification of the order dated 15.02.2016 passed by the Sub Divisional Officer in respect of 'kurra' prepared of khasra No. 1314. Admittedly, the order dated 30.05.2016 passed in revision has become final.

4. Pursuant to the directions in the order dated 30.05.2016 a decree was prepared by the Sub Divisional officer on 17.05.2017. The decree of 17.05.2017 was subjected to challenge by the petitioners in an appeal filed before the Additional Commissioner Meerut division which was allowed and the decree dated 17.05.2017 was set aside, while, simultaneously, remanding the matter before the competent authority.

5. In the second appeal filed before the Board of Revenue by the respondent No. 1 an order was passed on 14.11.2018 remitting matter to the trial court with the direction to make a fresh 'kurra' and dispose of the case after providing opportunity of hearing to the parties. Apparently, the aforesaid order dated 14.11.2018 was challenged by the contesting respondent No. 1 before this Court in writ-B No. 5674 of 2018 which writ petition was allowed by means of a judgment dated 03.12.2018. The aforesaid judgment dated 03.12.2018 is quoted below for ready reference:

"Heard learned counsel for the petitioner and Shri Santosh Kumar Tiwari holding brief of Shri Amitesh Kumar Mishra for the respondents 3,4 and 5 as also Shri Manu Saxena for the respondent no.11.

The instant writ petition arises out of a suit for partition filed by the petitioner. The suit was decreed and by the preliminary decree passed, the plaintiff predecessor-in-interest of the respondents 3 to 5 while 1/3 share was held to belongs to the predecessor-in-interest of respondents 6 to 10.

The preliminary decree has not been challenged by the petitioner and has become final.

In pursuance of the preliminary decree lots were prepared by the Lekhpal. The lots as proposed, were accepted, except the lot prepared regarding lot no.1314.

With regard to this lot prepared regarding plot no.1314, the dispute was one, inter-se, between the two sets of defendants, the predecessors of respondents 3,4 and 5 and respondents 6 to 10.

Against the order directing preparation of fresh lots regarding plot no.1314, which dispute was between the two sets of defendants, the petitioner filed a revision.

This revision was allowed by the order dated 30.05.2016 providing that the lots prepared regarding plot no.1314 be given to the plaintiff petitioner.

In essence, thereby, the lots prepared were directed to be interchanged between the parties.

This order passed by the Additional Commissioner on 30.05.2016 has not been challenged by anybody and the same has attained finality.

Pursuant to this order of remand dated 30.05.2016 and in consonance with the directions contained therein, it is submitted, that the Sub Divisional Magistrate passed an order on 17.05.2017, directing that fresh kurras be prepared.

Aggrieved by this order, respondents 3 to 5 filed an appeal. This appeal was allowed on 06.12.2017, the order dated 17.05.2017 was set aside and the matter was remanded back

Aggrieved by this order of remand, the petitioner filed a second appeal, wherein the matter has been remanded back for preparation of fresh lots in pursuance of preliminary decree.

The contention of counsel for the petitioner is two fold. The first that the surviving dispute between the parties was confined to the lot regarding plot no.1314 and nothing beyond that. The lot prepared on this plots had been given to the petitioner as directed by order dated 30.05.2016, which has attained finality.

The subsequent orders that have been passed both by the first and the second appellate Courts, have lost sight of the fact that the order dated 30.05.2016 has attained finality and the only thing that required consideration was whether, the lots prepared and accepted by the trial Court were in consonance of the directions contained in the order dated 30.05.2016, or not? Nothing beyond this aspect could have been gone into by the first and the second appellate Courts. For the same reason, the order of remand passed by the second appellate court, which are reopened the entire issue is without jurisdiction, inasmuch as, the second appellate Court in the second round of litigation could not have reopened an issue, which had already attained finality between the parties.

Even otherwise, although it has not been argued by counsel for the petitioner, this Court finds that the matter before the Board of Revenue was a Second Appeal, filed under Section 331 of the U.P. Zamindari Abolition and Land Reforms Act. The Board of Revenue has allowed the same without framing any substantial question of law. This again is a manifest illegality. which vitiates the order and the same is therefore, liable to be set aside.

Counsel for the respondents 3 to 5 has submitted that an objection dated 30.11.2015 was filed against the lot prepared by the Lekhpal and this objection has not been considered at any stage of the proceedings.

Be that as it may, on a pointed query by the Court, counsel for the respondents has conceded that the order dated 30.05.2016 passed by the Additional Commissioner remanding the matter to the trial Court with certain directions has not been challenged by any party and the same has therefore, attained finality.

In view of this admission, the objection that has been raised by counsel for the respondents before this Court is not liable to be sustained, as all such issues concluded, once the order dated 30.05.2018 was acquiesced to by the parties and not subjected to any further challenge.

In view of the foregoing discussion, this writ petition is liable to be and is hereby, allowed. The order passed by the Board of Revenue on 14.11.2018 is hereby set aside and the matter is remanded back to the Board of Revenue to examine only as to whether, the final decree in the suit for partition prepared on 17.05.2017 is in accordance with the directions contained in the order of remand dated 30.05.2016 issued by the Additional Commissioner, which order has attained finality.

Nothing beyond what has been specified above is to be looked into by the second appellate Court.

It is also directed that this exercise must be completed expeditiously and positively within a period of four months from the date a certified copy of this order is filed before the Board of Revenue.

This order has been passed without issuing notices to the respondents 6 to 10 because it has been submitted that they are not aggrieved in any manner.

In any case, it is not in dispute that the final lot prepared and accepted by the order dated 17.05.2017 were never objected to by the said respondents and therefore, prima facie, they do not appear to be parties, who may be aggrieved by non issuance of notice to them in this writ petition.

However, it will open for the said respondents to apply for recall of this order, in case, they feel aggrieved by it."

6. By the impugned order dated 11.09.2019 the Board of Revenue has quashed the judgment and decree dated 06.12.2017 passed by the Additional Commissioner in the first appeal and the judgment and decree dated 17.05.2017 was affirmed. While passing the aforesaid order the Board has also observed that the judgment dated 17.05.2017 was passed in accordance with the law and in furtherance of the previous order dated 30.05.2016.

7. The twin contention of the learned counsel for the petitioner is that, firstly, no substantial question of law has been framed by the Board of revenue before passing the impugned order dated 11.09.2019, and, secondly, the objections filed by the petitioner after the preparation of the initial 'Kurra' were not considered.

8. Learned counsel for the contesting respondent has strongly opposed the writ petition stating that the writ Court in its order dated 03.12.2018 had itself circumscribed the dispute requiring to be adjudicated by the Board of Revenue and therefore, there was no occasion for the Board of Revenue to frame a substantial question of law separately. It is further been urged that in view of the finality of the order dated 30.05.2016 passed by the revisional Court, petitioner cannot contend that his objections to the 'Kurra' have not been decided.

9. The contention advanced by the learned counsel for the respondent appears to be correct. From a perusal of the judgment dated 03.12.2018 passed by this Court in the previous writ petition aforesaid, it has been observed that the order dated 30.05.2016 passed by the revisional Court was acquiesced to by the parties and not subjected to any further challenge. It has been further observed in the said judgment that the final lot prepared and accepted by the order dated 17.05.2017 was never objected to by the respondents (petitioners herein). The Writ Court has further observed as follows:

"In view of the foregoing discussion, this writ petition is liable to be and is hereby, allowed. The order passed by the Board of Revenue on 14.11.2018 is hereby set aside and the matter is remanded back to the Board of Revenue to examine only as to whether, the final decree in the suit for partition prepared on 17.05.2017 is in accordance with the directions contained in the order of remand dated 30.05.2016 issued by the Additional Commissioner, which order has attained finality.

Nothing beyond what has been specified above is to be looked into by the second appellate Court."

10. In view of the aforesaid observation of the writ Court, it is evident that a substantial question of law was framed by this Court while remanding the matter before the Board of Revenue.

11. It is pertinent to note, that in the concluding paragraph of the aforesaid judgment dated 03.12.2018 it was left open to the respondents (the petitioners herein) to apply for recall of the order in case they felt aggrieved by it. It is not the case of the petitioners that they applied for recall/review of the judgment dated 03.12.2018 passed in Writ-B No. 5674 of 2018.

12. In view of the facts and circumstances narrated above, no cause for interference in writ jurisdiction has been made out by the petitioners. This writ petition lacks merit and is, accordingly, dismissed.

Order Date :- 14.3.2023

k.k.tiwari

(Jayant Banerji, J.)