Ajay Rai And Another vs State Of Up And 11 Others
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Allahabad High Court

Ajay Rai And Another vs State Of Up And 11 Others on 19 February, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:24191
 
Court No. - 50
 

 
Case :- WRIT - B No. - 2381 of 2024
 

 
Petitioner :- Ajay Rai And Another
 
Respondent :- State Of Up And 11 Others
 
Counsel for Petitioner :- Gauri Shankar Yadav
 
Counsel for Respondent :- Awadh Narain Rai,Bhupendra Kumar Tripathi,C.S.C.,Rajesh Kumar,Santosh Kumar Rai,Surendra Kumar Chaubey
 

 
Hon'ble Chandra Kumar Rai,J. 
 

1.Heard Mr. Gauri Shankar Yadav, learned counsel for the petitioners, Mr. S.K. Chaubey, learned counsel for respondent No.5, Mr. Tarun Gaur, learned Standing Counsel for the State-respondent, Mr. Bhupendra Kumar Tripathi, learned counsel for Gram Sabha and Mr. Awadh Narain Rai, learned counsel for respondent Nos.7, 8 and 12.

2. Brief facts of the case are that respondent No.5 filed a suit under Section 116 of U.P. Revenue Code, 2006 for partition impleading petitioners as well as respondent Nos. 6 to 12 as defendants in respect to plots of Khata Nos. 171, 172, 173, 174, 175 situated at Village-Chaurabhoj, Pargana-Pachotar, Teshil-Sadar, District-Ghazipur. Trial Court/ Sub Divisional Officer passed the Preliminary decree dated 30.09.2019. In pursuance of the preliminary decree dated 30.09.2019 Lekhpal submitted Kurra on 01.11.2019 which was confirmed vide order dated 29.07.2020. Petitioner No.2 challenged the judgment and decree dated 29.07.2020/30.07.2020 through revision before Commissioner on 01.01.2022 along with prayer for codonation of delay which was registered as case No.1 of 2022 computerized Case No. C20221400000001. Commissioner vide order dated 20.04.2022 admitted the revision, issued notices to the opposite parties, summoned the record of the proceeding and transferred the proceedings of revision before the Additional Commissioner (Judicial-Second). Plaintiff/respondent executed two sale-deed on 10.05.2022 and 12.05.2022 in respect to disputed plots accordingly petitioner No.2 filed an application dated 27.05.2022 in the aforementioned revison to restrain the plaintiff/respondent No.5 from creating third party interest in respect to plot in dispute accordingly Additional Commissioner vide order dated 27.05.2022 directed that nature of the property shall not be changed and no sale shall be made by the parties. Petitioner No.2 filed an application dated 29.06.2022 in the aforementioned revision to treat the revision as appeal under Section 207 of U.P. Revenue Code, 2006. Additional Commissioner vide order dated 31.10.2022 allowed the application dated 29.06.2022 to convert the revision in appeal. Plaintiff-respondent No.5 challenged the orders dated 20.04.2022, 27.05.2022 and 29.06.2022 in revision under Section 210 of U.P. Revenue Code, 2006 which was registered as revision No.3330 of 2022, before Board of Revenue. The aforementioned revision has been allowed by learned member, Board of Revenue vide order dated 20.03.2024 setting aside the order dated 20.04.2022, 27.05.2022, 31.10.2022. Hence this writ petiton on behalf of petitioners for following relief:-

(1) issue a writ, order or direction in the nature of certiorari, calling for the records of the case and quashing the impgue3nd order dated 20.03.2024 passed by respondent No.2/ Board of Revenue U.P. at Allahabad in Revision No.3330 of 20022 (Ramji Rai versus Commissioner, Varanasi Division, Varanasi and others) U/s 210 of U.P. Revenue Code, 2006 (Annexure No.1 to this writ petition).

(2). Issue a writ, order or direction in the nature of mandamus, commanding and directing the respondent No.5, not to transfer or change the nature of the properties shown in khatauni Fasli year 1424-1429 i.e. khata No.00171, 00172, 00173, 000174 and 00175 situated in village Chaurabhoj, Pergana-Pachotar, Tehsil and District-Ghazipur during the pendency of the instant writ petiton before this Hon'ble Court."

3. This Court entertained the matter on 08.07.2024 and granted interim protection in the matter.

4. In pursuance of the order dated 08.07.2024 counter affidavit has been filed on behalf of respondent No.5 along with application for vacation of interim order dated 08.07.2024.

5. As per office report dated 20.09.2024 service is sufficient upon respondent Nos.9. 10 and 11.

6. Learned counsel for the petitioners submitted that Board of Revenue has illegally entertained the revision against the interim orders passed during pendency of revision/ appeal before Commissioner. He submitted that Board of Revenue has exceeded his revisional jurisdiction while passing the impugned order dated dated 28.03.2024. He submitted that partition suit has been decided in illegal, arbitrary and ex parte manner accordingly, the petitioner filed a revision/ appeal which has been entertained and interim order has been granted. He submitted that order passed by Board of Revenue should be set aside and the first appellate Court/Additional Commissioner should be directed to decide the appeal on merit in proper manner.

7. On the other hand, Mr. S. K. Chaubey, learned counsel appearing for the contesting respondents submitted that no interference is required against the order impugned passed by Board of Revenue. He further submitted that Board of Revenue has passed the impugned order considering the case of both the parties. He further submitted that petitioner is only interested to linger on the proceeding of partition suit, as such no interference is required against the impugned order passed by Board of Revenue.

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

9. There is no dispute about the fact that suit for partition was filed by respondent No.5 and petitioners were impleaded as defendant in the aforementioned suit for partition. There is also no dispute about the fact preliminary decree was passed in the aforementioned suit. The is also no dispute about the fact that kurra was prepared by the Lekhpal. There is also no dispute about the fact that Sub Divisional Officer vide order dated 29.07.2020 confirmed the kurra and ordered for preparation of final decree. Against the order dated 29.07.2020 petitioner No.2 filed a revision on 01.01.2022 along with the application under Section 5 of Limitation Act. There is also no dispute about the fact that Commissioner vide order dated 20.04.2022 admitted the revision, issued notice to other side, summoned the record of the proceeding and transferred the revision before Additional Commissioner who vide subsequent order dated 27.05.2022 restrained the parties from selling the plot in dispute. There is also no dispute about the fact that the Additional Commissioner vide order dated 31.10.2022 allowed the application dated 29.06.2022 filed by petitioner No.2 to treat the revision as appeal and directed that the revision should be treated as appeal. There is also no dispute ab out the fact that against the order dated 20.04.2022, 27.05.20222 & 31.10.2022, respondent No.5 filed a revision under Section 210 of U.P.. Revenue Code, 2006 which has been registered as revision No.3330 of 2022 before Board of Revenue U.P. Allahabad and the Board of Revenue has allowed the revision setting aside the impugned orders dated 20.04.2022, 27.05.2022 and 31.10.2022.

10. It is material to mention that initially petitioners filed revision in place of appeal which was admitted on 20.04.2022 and in revision interim injunction was granted on 29.06.2022. It is further material to mention that application to convert the revision in appeal has been allowed vide order dated 31.10.2022 which have been assailed in revision and Board of Revenue has set aside all the three orders passed during pendency of revisions which is not correct exercise of revisional jurisdiction as the revision/appeal arises out of suit for partition as such the appeal should be decided on merit and interim injunction granted during pendency of revision / appeal should remain in operation.

11. Considering the facts and circumstances of the case, the order dated 20.04.2024 passed by respondent No.2/Board of Revenue is liable to be set aside and same is hereby set aside. The instant writ petition stands allowed and Additional Commissioner (Judicial-second) Varanasi Division Varanasi is directed to decide the appeal No.01 of 2022 under Section 207 of U.P. Revenue Code, 2006 on merit after affording proper opportunity of hearing to the parties expeditiously preferably within a period of three months from the date of production of certified copy of this order before him.

Order Date :- 19.2.2025

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