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1978 DIGILAW 641 (ALL)

Munna v. Abdul Hamid

1978-05-31

B.K.TANDON

body1978
JUDGMENT B.K. Tandon, Member - This is a revision filed by Munna against the order dated 27-1-1977 of the Additional Commissioner, Faizabad Division in appeal no. 157 arising out of the order dated 30-12-1976 passed by the Sub - Divisional Officer, Gonda on an application moved by the revisionist under Section 229-B of the U.P.Z.A. and L.R. Act in a case under Section 229B/209 of U.P.Z.A. and L.R. Act. 2. The facts relevant to the present revision are as follows: Abdul Hamid and others, plaintiff-opposite parties brought the suit under sections 229B/209 and while it was pending an application for temporary injunction had been moved on 30-9-75 by Munna, revisionist. Parties were heard and on 15-10-1975 it appears an order was passed that the parties shall maintain possession according to entries. It further appears that on an appeal preferred against this order the matter was remanded. After remand, the trial court on 30-10-76 passed an order on the revisionist's application that the plaintiffs should not interfere with the possession of defendant no. 5. Against this order, Abdul Hamid and others, plaintiffs filed an appeal before the Additional Commissioner, Faizabad Division. In appeal an application was moved on behalf of plaintiff appellants (opposite parties) praying for staying the operation of the order of the trial court dated 30-12-1976. On this application the Additional Commissioner on 27-l-1977 passed the following order: "Heard the learned counsels for the parties and send the file including application for stay and objection. The operation of the order of learned lower court dated 30-12-1976 is stayed." Aggrieved by the above order, Munna defendant no. 5 filed this revision. The revisionist had also made an application along with this revision praying that the operation of the order dated 27-1-1977 passed by the Additional Commissioner be stayed meanwhile. The revision was admitted on 3-2-1977 and also stay as prayed was granted. 3. The learned counsel for the opposite party no. 1 gave an application dated 23-1-1978 stating that no revision lies against an interlocutory order of stay passed by the lower appellate court and, therefore, the stay order passed by the Board in the revision may be vacated. I have heard the learned counsel for the applicant and the opposite party (revisionist) on the point whether the stay granted by the Board should be vacated or not. 4. I have heard the learned counsel for the applicant and the opposite party (revisionist) on the point whether the stay granted by the Board should be vacated or not. 4. A preliminary objection was raised by the learned counsel for the revisionist that the opposite parties nos. 7, 8 and 9 are necessary parties and have not been served. Therefore, this application should not be heard in their absence. In reply the learned counsel for the applicant (opposite party) argued that the interests of these opposite parties nos. 7, 8 and 9 are not involved in this revision and therefore there should be no obstacle in hearing this application. 5. The only point to be seen in this application is whether the stay order granted by the Board should be vacated or not. Since the interest of opposite parties nos. 7, 8 and 9 will not be directly involved in the decision taken on this application it is not necessary in the interest of justice that they may be heard before passing orders on this application. The learned counsel for the revisionist also gave an application that it would be necessary to see the records of the lower court and first appellate court before arguments could be started on this application. This objection of the learned counsel for the revisionist was rejected because the records of the two courts below are not necessary at all in taking decision on this application moved by the learned counsel for the opposite party no. 1. 6. The learned counsel for the applicant argued that the applicant had got a stay from the court of the Additional Commissioner, and the Board by its order dated 3-2-1977 had stayed the order of the Additional Commissioner dated 27-1-1977. He argued that the Board could not have granted stay order against the stay granted by the Additional Commissioner. He argued that no revision lies against such an order and in support of his argument he cited 1973 RD 45. In this ruling the learned Member had observed as follows:- "U.P. Zamindari Abolition and Land Reforms Act I of 1951 Section 333. Case decided, meaning of - Final order deciding some controversy between parties to be regarded as case decided - Stay order does not decide controversy'-It does not call for revisional interference." 7. In this ruling the learned Member had observed as follows:- "U.P. Zamindari Abolition and Land Reforms Act I of 1951 Section 333. Case decided, meaning of - Final order deciding some controversy between parties to be regarded as case decided - Stay order does not decide controversy'-It does not call for revisional interference." 7. The learned counsel for the revisionist argued that the trial court had on an application moved under Section 229D passed an order on 30-12-76 directing that the plaintiffs should not interfere in any way with the possession of defendant no. 5. He stated that the opposite party (applicant) filed an appeal against this order before the Additional Commissioner. He argued that this appeal was not maintainable because no appeal lies against an order passed under section 229B of the U.P.Z.A. and L.R. Act and only a revision lies against that order. Since the appeal itself was not maintainable the grant of stay in such appeal by the Additional Commissioner was without jurisdiction and a nullity. In support of his argument he cited AIR 1954 SC 340 . In the alternative he argued that even if it is conceded that an appeal lay before the Additional Commissioner even then the Board had a right to admit the revision and grant an order of stay against the stay order passed by the Additional Commissioner. In support of his argument he cited 1976 AWC (Revenue) page 103. In this case the Hon'ble Court was pleased to observe that the decree passed without jurisdiction is nullity. The following decision was taken in this ruling : " A revision would lie against interlocutory orders as well as final orders the deciding criterion being whether there has been any illegality or material irregularity resulting in miscarriage of justice." He also cited 1957 RD p. 411. In this ruling also the decision has been taken that Section 33 applies both to interlocutory as well as final orders. He also cited in support of his argument decision taken in rulings reported in 1977 AWC (Revenue) pages 87 and 118. 8. I have considered the arguments of the learned counsel for the parties. A perusal of Section 331 read with Schedule II, clearly shows that no appeal is provided against an order passed under Section 229D U.P.Z.A. and L.R. Act. 8. I have considered the arguments of the learned counsel for the parties. A perusal of Section 331 read with Schedule II, clearly shows that no appeal is provided against an order passed under Section 229D U.P.Z.A. and L.R. Act. Therefore no appeal lay before the Additional Commissioner dated 27-1-1977 granting a stay against the order of the trial court dated 30-12-1976 was without jurisdiction. Therefore, in view of the decision taken by the Supreme Court in the ruling quoted above AIR 1964 SC 340 such an order passed by the Additional Commissioner being without jurisdiction is a nullity. Therefore the Board under section 333 of the U.P.Z.A. and L.R. Act was well within its jurisdiction to interfere in the order which was passed by the Additional Commissioner without jurisdiction. Therefore, there is no ground to vacate the stay order passed by the Board vide its order dated 3-2-1977. 9. The result is that the application dated 23-1-1978 moved on behalf of respondent no. 1 namely Abdul Hamid is rejected, It however, appears necessary that this revision should be decided early and it be fixed for hearing in July 1978 session.