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2019 DIGILAW 348 (UTT)

State of Uttarakhand v. Chandi Prasad Bhatt

2019-05-22

LOK PAL SINGH

body2019
JUDGMENT : Present writ petition, under Article 227 of the Constitution of India, arises out of the judgment and order dated 25.03.2015 passed by the Board of Revenue, Uttarakhand in S.A. No. 19 of 2012-13 titled as Chandi Prasad Bhatt and others vs. State of Uttarakhand and others whereby the Board of Revenue has allowed the second appeal filed by the respondents herein. 2. Facts, in brief, are that respondent Chandi Prasad Bhatt (since deceased) has filed O.S. No. 10 of 2004 in the court of Assistant Collector, 1st Class Mussoorie, Camp Dehradun under section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act (hereinafter referred as U.P. Act) against the State and others, claiming the adverse possession over the land in dispute. Written statement has been filed by the petitioner-State stating therein that the land in dispute belongs to the State Government and is recorded as ‘Jungle Sal’ in the revenue records. The Assistant Collector, 1st Class vide judgment and order dated 02.12.2008 dismissed the suit. Feeling aggrieved by judgment and order dated 02.12.2008, respondents preferred an appeal no. 22 of 2008-09 before the Commissioner, Garhwal Division who vide its judgment and order dated 25.08.2010 allowed the appeal and remanded the matter to the trial court to decide it afresh. The trial court after remand, has again adjudicated the matter and dismissed the suit by judgment and order dated 17.12.2012 against which respondents again preferred an appeal before the appellate court which was transferred to the Additional Commissioner, Garhwal Division, Pauri and registered as Appeal No. 6 of 2012-13 which was also got dismissed by the appellate Court by judgment and order dated 13.09.2013. 3. Feeling aggrieved by judgment and order dated 13.09.2013, respondents preferred Second Appeal under section 331(4) of the U.P. Act before the Board of Revenue, Uttarakhand. The Board of Revenue by impugned order dated 25.03.2015 set aside the judgment passed by the appellate court as well as order dated 17.12.2012 passed by the trial court, allowed the second appeal and passed decree in the favour of the respondents declaring them as Bhoomidhar of the land in dispute. Hence, this petition before this Court. 4. Mr. Sunil Khera, Dy. Hence, this petition before this Court. 4. Mr. Sunil Khera, Dy. Advocate General appearing for the State would submit that the second appellate court has acted like a trial court and allowed the second appeal by setting aside the concurrent findings recorded by the trial court without formulating any question of law. He would further contend that unless the question of law was framed by the second appellate court, the second appellate court should not have to decide the second appeal on merits. In support of his contention learned Dy. Advocate General has placed reliance upon the judgment of the Hon’ble Apex Court in the case of State of Uttarakhand vs. Mohan Singh & others reported in (2012) 13 SCC 281 wherein the Hon’ble Apex Court has relied upon the catena of the judgment as well as the provision of Section 100 C.P.C. (unamended) and provision of section 100 C.P.C. (amended) and has held that amended provisions of section 100 C.P.C. which postulates formulation of substantial question of law are not applicable in the second appeal filed under section 331 (4) of the U.P. Act rather unamended provisions of section 100 CPC are applicable which postulates formulation of question of law. 5. Mr. Sunil Khera, learned Dy. Advocate General would further contend that since second appeal has been decided without formulating any question of law therefore, judgment passed by the Board of Revenue is vitiated by the provisions contained in Section 100 CPC (unamended) and Section 331 (4) of U.P. Act and the judgment is liable to be set aside. 6. On the other hand, Mr. Aditya Singh, Advocate appearing for the respondents would fairly submit that the second appellate court without formulating question of law as per the mandate of Section 100 CPC and Section 331 (4) of U.P. Act as well as principle of law laid down in the judgment supra has passed the order and would contend that since second appeal has been allowed without taking note of the provisions of law. 7. Having considered the submissions of the learned counsel for the parties, this Court is of the view that the second appellate court/Board of Revenue committed illegality in allowing the appeal without formulating the question of law. Thus, impugned judgment and decree passed by the Board of Revenue is unsustainable in law and same is liable to be set aside. 8. Having considered the submissions of the learned counsel for the parties, this Court is of the view that the second appellate court/Board of Revenue committed illegality in allowing the appeal without formulating the question of law. Thus, impugned judgment and decree passed by the Board of Revenue is unsustainable in law and same is liable to be set aside. 8. Thus, in view of the above the impugned order dated 25.03.2015 is set aside. The writ petition is allowed. Matter is remanded back to the Board of Revenue to decide the S.A. No. 19 of 2012-13 (Chandi Prasad Bhatt and ors. vs. State of Uttarakhand and ors) in accordance with law, after formulating question of law, if arises in the case, after giving full opportunity of hearing to the parties. Since, the matter is pending since long time, the Board of Revenue shall make an endeavour to decide the appeal within three months from the date of production of certified copy of this judgment. Board of Revenue will not be influenced by any of the observation made by this Court. 9. No order as to costs.