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2016 DIGILAW 4015 (ALL)

Nihal Singh v. Kamal Singh

2016-12-14

MANOJ KUMAR GUPTA

body2016
JUDGMENT Manoj Kumar Gupta,J. Heard learned counsel for the petitioners, learned standing counsel for respondent nos. 5, 7 and 8, Shri Ashish Kumar Srivastava for respondent no. 4 and Shri Anupam Kulshrestha alongwith Shri M.P. Singh on behalf of respondent no. 6, the main contesting respondent. With their consent, the writ petition is being disposed of finally without calling for a formal counter affidavit and also without issuing notice to the other private respondents being only formal parties. The petitioners were held to be co-sharers to the extent of half in the suit land in a preliminary decree dated 29.11.2010 passed under Section 176 of U.P.Z.A. and L.R. Act, 1950. During the proceedings for preparation of final decree, the petitioners filed objections against the kurras. The objections filed by the petitioners were rejected by order dated 17.4.2013. According to the petitioners, the said order was passed exparte, so they applied for recall of the same. By another order dated 28.7.2016, the recall application was rejected, the order dated 17.4.2013 was confirmed, and a further direction was given for preparation of final decree. Aggrieved, the petitioners preferred an appeal before the eighth respondent. After hearing the counsel for the caveator, the appeal was entertained by order dated 23.8.2016 and the operation of the order dated 17.4.2013 confirming the kurras was stayed. Notices were issued to the remaining opposite parties. Aggrieved by the order dated 23.8.2016 granting stay in favour of the petitioners, the sixth respondent carried the matter in revision before the Board of Revenue. The Board of Revenue by impugned order dated 5.10.2016 has set aside the order dated 23.8.2016 passed by eighth respondent solely on the ground that the said order was exparte against the sixth respondent. The eighth respondent has been directed to pass a fresh order on the stay application after hearing the parties. Aggrieved by the said order, the instant writ petition has been filed. Learned counsel for the petitioners submitted that the impugned order has been passed by the Board of Revenue without any notice or opportunity of hearing to the petitioners. It is further submitted that the sixth respondent, who had filed the caveat, was duly represented before the appellate authority when the interim order was granted. Learned counsel for the petitioners submitted that the impugned order has been passed by the Board of Revenue without any notice or opportunity of hearing to the petitioners. It is further submitted that the sixth respondent, who had filed the caveat, was duly represented before the appellate authority when the interim order was granted. It is urged that should the petitioners be put to notice, they would have demonstrated before the revisional authority that the sixth respondent was duly heard and the order granting stay was not exparte against it. On the other hand, Shri Anupam Kulshrestha, learned counsel appearing on behalf of respondent no. 6 submitted that some other party was heard while stay order passed on 23.8.20016 was granted. The sixth respondent was neither heard nor the notice of the filing of the appeal was served upon it. However, he does not dispute that the revision filed by the sixth respondent before the Board of Revenue has been allowed by the impugned order at the admission stage itself without issuing notice to the petitioners. In view of the aforesaid admission by Shri Anupam Kulshrestha, learned counsel appearing on behalf of respondent no. 6, the impugned order passed by the Board of Revenue dated 5.10.2016 becomes velnerable. At this stage, Shri Anupam Kulshrestha, submitted that instead of directing the Board of Revenue to decide the stay application and the revision afresh, it would be appropriate in case the appeal filed by the petitioners and which is pending before the eighth respondent is directed to be decided within a fixed time frame. He further states that the sixth respondent will have no objection in case the parties are directed to maintain status quo until the appeal is decided. Shri Manish Goyal, learned counsel appearing on behalf of petitioners has no objection to the same. Accordingly and with consent of learned counsel for the parties, the impugned order dated 5.10.2016 is quashed. The eighth respondent shall proceed to decide the appeal filed before it by the petitioners expeditiously, without granting unnecessary adjournment to the parties, and preferably within a period of two months from the date of production of a certified copy of this order. During the pendency of the appeal, the parties shall maintain status quo in regard to the land in dispute.