Banni Singh v. Board of Revenue, U. P. Allahabad — 1983 DIGILAW 49 (ALL)

ORDER K.P. Singh, J. - This writ petition arises out of a suit filed by the petitioner Banni Singh. One of the pleas raised by the defendant opposite party was that plot 1025 was not land within the meaning of the provisions of S. 3 (14), U.P. Z. A. and L. R. Act. The trial court framed an issue and referred to the Sub-Divisional Officer for a finding which was recorded by the latter on 23rd April, 1973 (see annexure `1' attached with the writ petition). Against the finding of the Sub-Divisional Officer D/- 23rd April, 1973 the defendant opposite party preferred a revision petition which was recommended to be dismissed as is evident from the judgment of the Additional Commissioner D/- 28-11-1973 (Annexure `2' attached with the writ petition). The revisional court through its judgment D/- 26-7-1976 allowed the revision petition (see Annexure `4' attached with the writ petition). It appears that the petitioner filed a review petition which has been dismissed by the learned Member through his judgment D/- 3-10-1977 (see Annexure 1' attached with the amendment application and affidavit filed by the petitioner). Aggrieved by the orders of the revisional court (see Annexure 4' attached with writ petition and Annexure 1' attached with the amendment application) the petitioner has approached this Court under Article 226 of the Constitution. 2. The learned counsel for the petitioner has contended before me that the revisional court has patently erred in allowing the revision petition filed by the contesting opposite party Shiv Singh when no revision lay against the finding recorded by the trial court. The second contention raised on behalf of the petitioner is that the revisional court has acted illegally and improperly in not referring the case to a larger Bench. According to the learned counsel for the petitioner cases were cited before the learned member to the effect that the other Members of the Board of Revenue had held in similar circumstances that no revision lay, yet the revisional court has allowed the revision petition without following the rules of precedents. According to the learned counsel for the petitioner cases were cited before the learned member to the effect that the other Members of the Board of Revenue had held in similar circumstances that no revision lay, yet the revisional court has allowed the revision petition without following the rules of precedents. The third contention raised on behalf of the petitioner is that on the date when the revision against the finding came up for hearing the suit itself had already been decided and the judgment in the suit had become final between the parties, hence the revisional court had no jurisdiction to allow the revision petition against the finding. The fourth contention raised on behalf of the petitioner is that the learned Member was biased against the counsel of the petitioner hence he has acted mala fide in allowing the revision petition. The learned counsel for the petitioner has stressed before me that he has impleaded learned Member in his name and he has not filed any counter-affidavit in the case, hence the allegations of mala fide against him should be accepted and the impugned order should be quashed. The fifth contention raised on behalf of the petitioner is that the finding recorded by the Sub-Divisional Officer shall form fart of the judgment of the trial court and an appeal would lie against that finding after final decision in the suit, hence the revision petition was not maintainable. 3. In this connection the learned counsel for the petitioner has drawn my attention to paras 4 and 5 of the order D/d. 3-10-1977 whereby the review petition has been dismissed. The learned counsel for the petitioner has emphasised that the learned Member in the circumstances of the present case has patently erred in not following the rulings of the other Members of the Board and also in not following the rulings of the High Court and the Supreme Court. He has also stressed that a learned Single Judge of this Court in 1982 All WC 690 : 1982 All LJ 1285 Shiv Charan Lal v. Board of Revenue has criticised the conduct of the learned Member who has decided the revision petition in the present case also, hence he should be censured in this case with more pungent remarks. 4. 4. The learned counsel for the contesting opposite party has submitted in reply that the vacation court has rightly set aside the finding given by the Sub-Divisional Officer on the issue referred to him by the trial court. 5. According to him if the finding is recorded against the plaintiff the judgment in the suit shall automatically fall through. It is wrong to contend that the revision petition had become in fructuous against that finding because the suit had been decided before the decision of the revision petition. He has also suggested that the present writ petition is against the order of remand, hence the writ petition should be dismissed on that ground alone in view of the ruling reported in 1969 All WR (HC) 182 Uma Shankar v. District Dy. Director of Consolidation, Etawah. He has also submitted that the defendant-opposite party had both remedies available. The defendant could file revision petition against the finding on the issue referred to the Sub-Divisional Officer in the present case and he could also attack the finding if the suit had been decided against him finally by the trial court. He refuted the contention raised on behalf of the petitioner that due to the decision in the suit the revision against the finding would not be maintainable. 6. I have considered the contention raised on behalf of the parties. In the present case I think that the revisional court has rightly interfered with the finding given by the Sub-Divisional Officer on the issue referred to him. No doubt in 1966 Rev. Dec. 190 Markandey Singh v. Shiv Lok Prasad a learned Member of the Board has held that no revision lay against the finding on an issue. Similarly in Reference No. 79 of 1974-75 District Aligarh, Shiv Singh v. Kanchan Singh, another Member has also held that no revision lay against the finding on an issue. These decisions of the learned Members of the Board of Revenue have failed to take into account the observation of their Lordships of the Supreme Court in a case reported in AIR 1964 SC 497 , S.S. Khanna v. F.J. Dillon. These decisions of the learned Members of the Board of Revenue have failed to take into account the observation of their Lordships of the Supreme Court in a case reported in AIR 1964 SC 497 , S.S. Khanna v. F.J. Dillon. In the aforesaid ruling vide para 11 the following observations have been made : "The expression "Case" is a word of comprehensive import: it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court. To interpret the expression "case" as an entire proceeding only and not a part of the proceeding would be to impose restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject and may result in certain cases in denying relief to an aggrieved litigant where it is most needed and may result in the perpetration of gross injustice." 7. Before the above mentioned ruling of the Supreme Court according to the view of this Court, no revision lay against the decision on an issue in a suit, but now when the jurisdiction of a court depends on the decision of an issue, a revision lies against the erroneous finding (see AIR 1966 SC 153 (para 10) Pandurang Dhondi Chougule v. Maruti Hari Jadhav.) 8. The learned counsel for the petitioner also invited my attention to the ruling reported in AIR 1970 SC 406 , Baldevdas Shiv Lal v. Filmistan Distributors (India) Pvt. Ltd., and has contended that the revision was not maintainable. I think the aforesaid case has no application to the facts and circumstances of the present case. 9. If the finding on the issue under consideration is to the effect that the disputed plot 1025 is not an agricultural land, the trial court would have no jurisdiction to decide the claims of the parties with regard to the aforesaid plot. Since the question of jurisdiction on the finding on issue referred to the Sub-Divisional Officer is involved in the present case, I think the revision petition was maintainable and the contention of the learned counsel for the petitioner in this regard that the revision was not maintainable is not acceptable to me. Thus the first contention raised on behalf of the petitioner fails. 10. Thus the first contention raised on behalf of the petitioner fails. 10. Regarding the second contention of the petitioner I think that the learned Member should have referred the case to a larger Bench or he should have taken pains to support his action by placing reliance upon the rulings of this Court wherein the revision has been entertained by the revisional court even against an order of the Civil Judge not referring an issue to the revenue court (see 1947 All LJ 155 : AIR 1947 All 413 Shyam Narain v. Suchit Prasad Rai and 1943 ALW 300 Shiv Pratap Tiwari v. Shambhu Narain Tiwari.) 11. Regarding third contention of the petitioner, I think that if the finding recorded by the Sub-Divisional Officer on an issue referred to him is wrong the revisional court has ample powers to interfere with the same. Merely because the suit was decided by the trial court on accepting the finding of the Sub-Divisional Officer it would not stand in the way of the revisional court to set right the erroneous finding amenable to revisional interference. 12. In this connection it is sufficient to mention the Head Note `D' and the ruling reported in AIR 1926 All. 58 Bisheshwar Prasad Pandey v. Raghubir wherein a Division Bench of this Court has observed as below : "Section 115 confers revisional jurisdiction on the High Court in cases in which no appeal lies to that court. Its jurisdiction is not excluded by the fact that an appeal might lie to a subordinate court. If the order of the trial court is set aside the confirming order of the lower appellate court must necessarily fall to the ground with it." 13. The powers of the revisional court under S. 333, U. P.Z. A. & L. R. Act, are similar to those mentioned in S. 115, Civil P. C. with regard to the High Court. Therefore, I am unable to accept the contention of the learned counsel for the petitioner that as the suit had been decided by the trial court before the decision of the revision petition by the Board, hence the revision had become in fructuous and could not be entertained and allowed by the revisional court. Therefore, I am unable to accept the contention of the learned counsel for the petitioner that as the suit had been decided by the trial court before the decision of the revision petition by the Board, hence the revision had become in fructuous and could not be entertained and allowed by the revisional court. In my opinion the revisional court had ample powers to set aside the erroneous finding on an issue referred to the Sub-Divisional Officer and amenable to revisional interference according to the provisions of the Act. 14. Regarding the fourth contention of the learned counsel for the petitioner or for ground of mala fide against the officer, I do not think necessary to probe into that matter when I find that the learned Member rightly interfered with the finding of the Sub-Divisional Officer in the circumstance of the present case. The question of mala fide raised against the officer by the petitioner through his counsel is not necessary to be decided in this case. 15. To answer the fifth contention of the learned counsel for the petitioner it is proper to quote the provisions of S. 331-A U.P. Z. A. and L. R. Act, which reads as below : "(1) If in any suit, relating to land held by a bhumidhar, instituted in any court, the question arises or is raised whether the land in question is or is not used for purposes connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, and a declaration has not been made in respect of such land under S. 143 or 144, the court shall frame an issue on the question and send the record to the Assistant Collector in-charge of the sub-division for the decision of that issue only : Provided that where the suit has been instituted in the court of Assistant Collector in-charge of the sub-division, it shall proceed to decide the question in accordance with the provisions of S. 143 or 144, as the case may be. (2) The Assistant Collector in-charge of the sub-division after re-framing the issue, if necessary, shall proceed to decide such issue, in the manner laid down for the making of a declaration under S. 143 or 144, as the case may be and return the record together with his finding thereon to the court which referred the issue. (2) The Assistant Collector in-charge of the sub-division after re-framing the issue, if necessary, shall proceed to decide such issue, in the manner laid down for the making of a declaration under S. 143 or 144, as the case may be and return the record together with his finding thereon to the court which referred the issue. (3) The court shall then proceed to decide the suit accepting the finding of the Assistant Collector in-charge of the sub-division on the issue referred to it. (4) The finding of the Assistant Collector in-charge of the sub-division on the issue referred to it shall, for the purposes of appeal be deemed to be part of the finding of the court which referred the issue." 16. True, that the finding recorded by the Sub-Divisional Officer can be challenged in the appeal against the decision of the trial court referring the issue, but there is no absolute bar that the revisional court cannot entertain a revision petition against the finding on issue referred to the Sub-Divisional Officer. I agree with the submission of the learned counsel for the contesting opposite parties that the opposite party had both remedies available to him and when he sought one remedy by way of revision, he should not be denied the requisite relief solely on the ground that the finding on the issue could be challenged in an appeal. It is the sole discretion of the revisional court to entertain the revision or refuse to entertain the revision on the ground that the finding could be challenged in appeal. Rather in deserving cases it would be the duty of the revisional court to entertain the revision petition against the finding of the Sub-Divisional Officer if it shortens the litigation and relieves the parties of unnecessary harassment in litigation. To my mind there is no absolute bar for the revisional court to entertain the revision petition against the finding of the Sub-Divisional Officer on the issue referred to him by the trial court in accordance with the provisions of S. 331-A, U.P. Z. A. and L R. Act. 17. On the last contention also the petitioner cannot successfully challenge the order of the revisional court whereby the revision against the petitioner has been allowed. 18. 17. On the last contention also the petitioner cannot successfully challenge the order of the revisional court whereby the revision against the petitioner has been allowed. 18. The submission of the learned counsel for the contesting opposite party to the effect that no writ lies against the order of remand is not acceptable to me. It has been indicated in various unreported cases that the order of remand passed by the subordinate authority is amenable to interference by this Court under Article 226 of the Constitution. Recently a Division Bench has held that a writ petition lies in suitable cases against the interlocutory orders also. In this view of the matter I doubt that the ruling relied upon by the learned counsel for the contesting opposite party reported in 1969 All WR (HC) 182 holds field at present. 19. As regards the suggestion of the learned counsel for the petitioner that the learned Member deciding the revision deserves more pungent remarks than the remarks given by the learned Single Judge in the ruling reported in 1982 All WC 690 : (1982 All LJ 11285). I think that when the learned Member has decided the cases correctly he should not be criticised for doing a correct thing and in this view of the matter I am not all agreeable to the suggestion made by the learned counsel for the petitioner. 20. The order of the Sub-Divisional Officer D/- 23rd April, 1973 (Annexure 1' attached with the writ petition) is not in relation to the materials gathered by him or evidence led in the case. To me the aforesaid order does not appear to be based on the evident led in the case nor is it a reasoned and speaking order and the ground mentioned by the revisional court in para 6 of its judgment D/- 26-7-1976 appears to me correct. When the order of the trial court is not a reasoned order and in relation to the evidence led by the parties or in relation to the materials gathered in an enquiry held by him, I think that the revisional court was fully justified in interfering with the order of the trial court. 21. When the order of the trial court is not a reasoned order and in relation to the evidence led by the parties or in relation to the materials gathered in an enquiry held by him, I think that the revisional court was fully justified in interfering with the order of the trial court. 21. In the last it is proper to mention that while dismissing the review petition the learned Member should have given more cogent reasons and should not have made the observation as he has done in paras 4 and 5 of his judgment D/- 3-10-1977. The observation made in paras 4 and 5 of the impugned judgment D/- 3-10-1977 may be due to incorrect approach but it would not be proper to impute any motive to the officer for dismissing the review petition. 22. In the result, the writ petition fails and is accordingly dismissed. Parties are directed to bear their own costs.