Allahabad High Court
Mohd. Iqbal And 2 Others vs Alimuddin And 7 Othrs. on 15 May, 2023
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:105065
Court No. - 4
Case :- WRIT - B No. - 2736 of 2018
Petitioner :- Mohd. Iqbal And 2 Others
Respondent :- Alimuddin And 7 Othrs.
Counsel for Petitioner :- Rishi Bhushan Jauhari
Counsel for Respondent :- C.S.C.,Diwakar Singh,Namit Srivastava
Hon'ble Jayant Banerji,J.
1. Heard Sri Bhanu Bhushan Jauhari, learned counsel for petitioners and Sri Daya Shanker Dubey, learned counsel appearing for respondent No.1. Though notice on behalf of respondent No.2 - Gaon Sabha has been accepted by Sri Diwakar Singh, however, learned counsel is not present when the matter is called out for hearing. Learned Standing Counsel appears for respondent No.3. Notice was issued under the order of the Court dated 22.2.2018.
2. This writ petition has been filed for setting aside the judgment and order dated 29.6.2017 passed by the Additional Commissioner (Judicial), Allahabad Division, Allahabad in Appeal No.162/164 year 1994-95 (Alimuddin v. Mohd. Iqbal) as well as the judgment and order dated 26.10.2017 passed by the Board of Revenue in Second Appeal No.1880 of 2017 (Mohd. Iqbal and another v. Alimuddin and others).
3. The contention of learned counsel for the petitioners is that a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reform Act, 1950 was filed by the predecessors of the petitioners which was decreed. The respondent No.1 challenged the decree in an appeal which was rejected. However, the second appeal filed by the respondents was successful and the matter was remanded to the first appellate Court for adjudication on 11.5.1992. Thereafter, by means of judgment dated 13.9.1995, the first appellate Court allowed the appeal of the defendants. Plaintiff-petitioners thereafter, against the aforesaid order dated 13.9.1995, filed a second appeal before the Board of Revenue. By a judgment and order dated 28.2.2006, the Board of Revenue dismissed the second appeal of the petitioners. Thereafter, the petitioners challenged the second appeal's judgment in Writ-B No.34481 of 2006 which was allowed, by means of a judgment and order dated 22.8.2016, whereby the orders of the Additional Commissioner dated 13.9.1995 and that of the Board of Revenue dated 28.2.2006 were set-aside. The matter was remanded to the first appellate Court, i.e. before Additional Commissioner, to decide the appeal afresh in accordance with law after hearing the parties.
4. The contention is that the first appellate Court proceeded to allow the appeal by means of an order dated 29.6.2017 without appreciating the various observations made by this Court in the aforesaid writ petition of 2006. It is contended that second appeal preferred by the petitioners against the aforesaid order dated 29.6.2017 before the Board of Revenue was dismissed on 26.10.2017.
5. Learned counsel for the petitioners has submitted that in the judgment passed by this Court in the aforesaid writ petition of 2006, this Court considered three aspects:
(I) Whether the sale consideration was paid to the plaintiff Hafizuddin;
(ii) Whether the sale deed in question was duly executed; and
(iii) Whether the sale deed in question contained the signatures and the thumb impressions of the plaintiff Hafizuddin.
6. The contention is that the first appellate Court and the Board of Revenue have considered only the aspect of veracity of the signature of Hafizuddin appearing on the sale deed and have not returned any finding with regard to other two aspects considered by this Court. Learned counsel has contended that given the definition of 'Sale' appearing in Section 54 of the Transfer of Property Act, 1882, where the price has not been paid and that price being the sole consideration for the sale deed in question, the deed would be void and no suit for cancellation of the same is required to be instituted. In support of his contention, learned counsel for the petitioners has relied upon the judgment of the Supreme Court reported in 2022 RD (156) 171 - Kewal Krishan vs. Rajesh Kumar.
7. Sri Daya Shanker Dubey, learned counsel appearing for respondent No.1 has vehemently opposed the writ petition. He contends that the petitioners had committed fraud and had concealed material facts and records from the revenue Court due to which, the suit was initially decreed. It is contended that only after the matter was remanded by this Court pursuant to the aforesaid judgment passed in the writ petition of 2006 that justice was done to the respondent No.1. It has further been stated that the petitioners have not come up with the clear facts. However, learned counsel has fairly conceded that the first appellate Court had not recorded finding with regard to the aspect of payment of sale consideration or of due execution of the sale deed as was observed by this Court in its judgment dated 22.8.2016 in writ petition of 2006.
8. Having heard learned counsel for the parties and perused the record, it is evident from perusal of the judgment dated 22.8.2016 passed by this Court in writ petition of 2006 that three questions, as submitted by learned counsel for the petitioners, were considered by this Court while passing the judgment. The order passed by the Additional Commissioner is enclosed as Annexure No.15 to the writ petition and is dated 29.6.2017. The findings of the Additional Commissioner begin from Page 103 of the writ petition. A perusal of the findings evince that the aspects of signature and due execution of the sale deed had been partially considered by the Additional Commissioner. However, there is no finding returned with regard to the aspect of payment of sale consideration. The order of the Board also fails to notice this aspect of the matter. Both the first appellate Court and second appellate Court have misdirected themselves in not considering the observations made by this Court in the previous writ petition of 2006 in totality. Consequently, the order impugned dated 29.6.2017 passed by the Additional Commissioner (Judicial) and the order dated 26.10.2017 passed by the Board of Revenue in the second appeal aforesaid, cannot stand and are hereby set-aside.
9. The matter is remanded to the first appellate authority concerned, that is, the Commissioner or the Additional Commissioner concerned, to decide the appeal expeditiously and in accordance with law, no later than 8 months from the date a certified copy of the order is presented before the Court.
11. The writ petition is, accordingly, allowed.
Order Date :- 15.5.2023
Rakesh
