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2022 DIGILAW 83 (UTT)

Bal Sugriv Singh v. Prem Singh

2022-04-11

SHARAD KUMAR SHARMA

body2022
JUDGMENT : Sharad Kumar Sharma, J. Before dealing with the factual backdrop of the case and particularly in the light of the arguments which has been extended by the counsel for respondent no.1, this Court is of the view that in order to better answer the questions raised by the counsel for the petitioner. Precise law as governing the field is required to be dealt with. There are two parallel revenue laws, which are being taken in support of his argument by the counsel for the petitioner to argue the matter. The first being the provision of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter to be called as U.P.Z.A & L.R. Act). To deal with the aspect covered by the said Act in fact, the provisions of the U.P. Z.A. & L & R Act, are a special statute, which has been framed by the State governing the management, regulations and devolvement of rights over an agricultural land as defined under the Act and the Act, that is why the U.P.Z.A. & L.R. Act, has been placed in the Xth Schedule of the Constitution as framed under Article 31-B of the Constitution of India and it finds its entry at Serial No.11. 2. Article 31-B of the Constitution of India provides for a validation of the certain Act and Regulations, which has been framed by the State laws in exception to the provisions contained under Article 31-A of the Constitution. Hence there is a deeming Clause attached to the statute covered under Article 31-B of the Constitution of India, to be a valid law and none of the Act and Regulations which are contained in the Xth Schedule or any of the provisions thereof shall be deemed to be void or would have become void on the ground, that such Act or Regulations are inconsistent with any of the other provisions of law or abridges any right conferred by any provisions of the legislature of the Act. 3. Meaning thereby as far as the U.P. Z.A & L.R. Act is concerned, it has been given a statute of being a Special Act regulating or dealing with the rights to the land as defined under Section 3 Sub Section (14) of the Act, except for the exception of the land covered under Section 109 and 143 and 144 of Chapter VII of the said Act. The U.P. Z.A. & L.R. Act, deals with the right of declaration under Section 229-B of the Act; partitioning of the holding under Section 176 of the U.P. Z.A. & L.R. Act, a suit for possession under Section 209 of the Act and such other major principle proceedings, which determines the right of the parties and more or less it takes the shape of regular proceedings dealing with the rights of the property including the right of the devolvement by way of succession to the estates of male and female. 4. The proceedings which are provided to be carried under the U.P. Z.A. & L.R. Act are governed by the provisions contained under Section 341 of the Act, by virtue of which the provisions of the Court Fees Act, Limitation Act including Section 5; as well as the procedural provisions of Code of Civil Procedure has been made applicable in its totality, over the proceedings provided under the U.P. Z.A. & L.R. Act. 5. The second set of the statute which would be required to be considered by this Court is that the State legislature had framed an Act called as U.P. Land Revenue Act 1901, (hereinafter to be called as Land Revenue Act), which has been consistently observed by the various precedents of the Court; including the Hon’ble Apex Court, that the proceedings governed therein as contained in its Sub Clause-C of Chapter III; which principally relates to the maintenance of maps and revenue records, they are summary in nature. The said Act under Section 34, with which we would be more concerned provides for a report of succession of transfer of possession by virtue of which there is a devolvement of a right claimed by and the procedures with regards to the proceedings contemplated under Chapter III are regulated by the procedures, which are contained in Chapter X of the said Act. Since Courts thus created under the Land Revenue Act or under U.P. Z.A. & L.R. Act are exercising the powers of a Revenue Court, the Revenue Court manual has been compiled to govern the procedures for regulating the proceedings, which are contemplated under either of the Acts referred above. 6. Brief facts of the present case are that one Mr. Amar Singh, son of Mr. 6. Brief facts of the present case are that one Mr. Amar Singh, son of Mr. Ram Prasad, is said to be having an exclusive right over a piece of a land which fell to be lying in Khata No.8-3 having an area of 0.980 hectares (hereinafter to be called as the property in dispute). Mr. Amar Singh, son of Mr. Ram Prasad is said to have executed a registered will on 27.06.1997, in favour of the petitioner and it is under the strength of the said registered will of 27.06.1997, the petitioner claimed, that the right over the estates of Late Mr. Amar Singh, had devolved upon him. Consequently, the petitioners had filed an application under Section 34 in the court of Nayab Tehsildar under the provisions of the Land Revenue Act, which was registered as Case No.30/106 of 2007-2008 praying for that their name may be recorded in the revenue records by substituting their names in place of the Testator of Will dated 27.06.1997 Late Mr. Amar Singh. 7. In the proceedings thus held under Section 34 by way of Case No.30/106 of 2007-2008, the petitioners contend that the proclamation was issued, giving an information to the public at large pertaining to the filing of the application under Section 34, thereby inviting the objections and it is contended by the petitioners that respondent no.1 herein, in fact has appeared in the proceedings of Case No.30 of 106 of 2007-2008 on 29.08.2008, but had shown his slackness in contesting the proceedings with diligence and it was on two occasions that is on 20.01.2009 and 07.02.2009, the prayer for adjournment was sought for by respondent no.1 was rejected and which according to the petitioners remained unchallenged and has attained finality. 8. The petitioners contend that the learned Court of Nayab Tehsildar after examining the witnesses of the will dated 27.06.1997, who were produced before the court of Nayab Tehsildar and after ascertaining the fact of possession over the disputed land by calling a report from Lekhpal, had proceeded to decide the application under Section 34 of Land Revenue Act, vide its judgment of 17.02.2009 and as a consequence thereto the name of the petitioners on the basis of the will dated 27.06.1997, was directed to be recorded in the Revenue records. The petitioners contend that since respondent no.1, has put in appearance on 29.08.2008, and they were contesting the proceedings and particularly, when their adjournment application stood rejected, the order of allowing the application of 17.02.2009, under Section 34 of the Land Revenue Act was well within the knowledge of respondent no.1 and as such a belated appeal which was preferred by respondent no.1 against the judgment on 17.02.2009, would not be tenable and particularly it will not be tenable because the two orders of adjournment dated 20.01.2009 and 07.02.2009, remained unchallenged. 9. It has come on record that respondent no.1 had in fact had filed an application for procuring the certified copy of the judgment of 17.02.2009 and had filed an application and obtained of the same copy on 17.03.2009, but however the appeal could not be filed before the competent appellate authority under Section 210 of the Land Revenue Act, and it was filed only on 18.04.2009, supported with the delay condonation application. 10. Under the provisions of the Land Revenue Act, when an appeal is preferred under Section 210 of the Act, period of limitation of preferring an appeal under the Land Revenue Act, has been prescribed under Section 214 of the Act, that person aggrieved could file an appeal within 30 days from the date of the order, but the petitioners contend that since the appeal was preferred only on 18.04.2009 by respondent no.1, the same was barred by limitation. As already observed that the appeal which was filed by the respondents was on 18.04.2009, since it accompanied with the application for seeking condonation of delay and the reasons for condonation as expressed in the delay condonation application was that though the certified copy of the order was applied and procured on 17.03.2009, but since the petitioner was not well and he was ailing between 19.03.2009 till 24.03.2009, the appeal could not be filed and when his counsel has called for him to get the appeal prepared on 26.03.2009; he approached to the counsel but since the counsel’s wife fell ill, the appeal could not be prepared because the counsel’s wife remained under treatment for a period from 11.04.2009 till 12.04.2009 and ultimately the appeal was preferred on 18.04.2009, alongwith the delay condonation application under Section 21 of the Act. The learned appellate court by virtue of the judgment of 16.12.2015 considered the appeal of the respondent and vide its judgment of 16.12.2015, the learned appellate court, had set aside the order of Nayab Tehsildar dated 17.02.2009 and had remanded the matter back to the court of Nayab Tehsildar to decide the matter afresh exclusively on its own merits after taking the evidence of the respective parties and hearing them. The relevant part of the order of remand by the appellate court is extracted hereunder:- ^^vr% mijksDr foospuk ds vk/kkj ij vihy Lohdkj dh tkrh gSA voj U;k;ky; dk vkns'k fnukad 17-2-2009 [kkfjt fd;k tkrk gSA i=koyh voj U;k;ky; dks bl funZs'k ds lkFk izfr izsf"kr dh tkrh gS fd mDr fu.kZ; esa fn;s x;s funsZ'kkuqlkj i{kksa dks lk{; ,oa lquokbZ dk iw.kZ volj iznku dj xq.k&nks"k ds vk/kkj ij okn dk fuLrkj.k fd;k tk;sA vkns'k dh izfr voj U;k;ky; dh i=koyh esa j[kh tk;A voj U;k;ky; dh i=koyh okil gksA^^ 11. Its this appellate order which has been questioned by the petitioner by preferring the revision under Section 219 of the Land Revenue Act, and the learned Board of Revenue in view of the observations, which were made in para 8 of the judgment of the Board of Revenue, the revision was dismissed by the judgment of 19.01.2022 and the order of remand dated 16.02.2015, was upheld by the revisional court. Hence, the writ petition. 12. The counsel for the petitioner while putting a challenge to the revisional courts order as rendered in Revision No.85 of 2015 Bal Sugrive Singh and others vs. Prem Singh and others, as well as the judgment of the appellate authority dated 16.12.2015, during the course of the his address to the writ petition, in fact, had argued the matter from the question which has been formulated and referred to in para 3 of the writ petition, which are extracted hereunder:- “3. That the moot questions which are involved in the present petition are:- A. As to whether Additional Collector has have any jurisdiction in an appeal under Section 210 of U.P. Land Revenue Act to remand the matter to the Mutation Court for deciding the title dispute, without deciding the delay condonation application, against the requirements for remand as per Order 41 Rule 23, 23 A CPC? B. As to whether the Additional Collector while deciding an appeal under Section 210 of U.P. Land Revenue Act, governed by the provisions of Order 41 CPC can accept the documents without an application under Order 41 Rule 27 CPC?” 13. In fact, the first argument on which the learned counsel for the petitioner has harped upon in support of his contention, is from the context that the appellate court has erred at law in remanding the matter to the court of Nayab Tehsildar, for deciding the application under Section 34 afresh as per the provisions contained under the Land Revenue Act and that the appellate court has got no power of remand since being a summary proceedings. i. The first limb of argument about the competence of appellate court to remand the matter for its fresh decision, could be answered and against the petitioners in the light of the provisions contained under Section 216 of the U.P. Land Revenue Act itself, which is extracted hereunder:- “216. Powers of Appellate Court. – 1) The Appellate Court may either admit or summarily reject the appeal. (2) If it admits the appeal, it may reverse, vary or confirm the order appealed against; or may direct such further investigation to be made or such additional evidence to be taken as it may think necessary; or it may itself take such additional evidence; or it may remand the case for disposal with such directions as it thinks fit.” Wherein in its Sub Section (2) of Section 216 the power of remand has been exclusively vested with the appellate authority, hence it cannot be said that the appellate authority lacked its power of remand for a fresh decision before the court below. ii. The second limb of argument of learned counsel for the petitioners is that the respondents, since had not questioned the orders of 20.01.2009 and 07.02.2009 of rejecting their application for adjournment and had proceeded to decide the matter on its own merits on 07.02.2009, allowing an application under Section 34 of the petitioner it cannot be faulted of in the absence of there being a challenge given to the aforesaid orders of adjournment. iii. iii. As per the ratio laid down by the Allahabad High Court, the proceedings, which has been taken up by the Court on its merits, including the pending applications, in those proceedings, they have to be decided on its own merit. The Court is not supposed to look into the past conduct of the person under litigation, in order to assess the tenability of the proceedings, which are presented before the Court for its consideration. This ratio has been provided in the judgment reported in 1997-98 (Justice D.K. Seth). 14. This Court is of the view that the orders passed on an adjournment application, would not materially affect the main order which has been passed by the authority i.e. on 17.02.2009, herein allowing the mutation application and there cannot be a deprivation of a legal right to challenge the same by filing of an appeal under Section 210, along with the delay condonation application, merely, on the pretext that the appellants had the knowledge of the proceedings of appeal, the appellant had voluntarily after dismissal of an adjournment application has not challenged the same and that in itself will not take away the right of a person aggrieved by the order passed by principal authority, by putting a challenge to the same by filing of an appeal because interlocutory applications of rejection of adjournment could not be taken as a procedure, at the cost of deprivation of an appellate right. Hence, this contention of the petitioners, that since there was no challenge given to the two orders of adjournment no appeal would lie is also not accepted by this Court. 15. The learned counsel for the petitioners has argued the matter that the impugned order was passed by the Nayab Tehsildar on 17.02.2009 and the appeal itself was preferred on 18.04.2009 i.e. much beyond the period of 30 days, as provided under Section 214 of the Act and though despite of the fact that the appeal accompanied with it an application under Section 5 of the Limitation Act, the Appellate Court has not condoned the delay before proceeding to decide the appeal on its merit. 16. 16. This argument of the learned counsel for the petitioners that the Appellate Court has ventured to decide the appeal on merits without deciding the delay condonation application, is yet again logically not accepted by this Court for the reason being that the defence taken by the petitioners in opposition to the delay condonation application has been very elaborately dealt with by the court of Additional District Magistrate in Appeal No.52/36 of 2008-2009 in para 2 of its judgment and while considering the implications of the delay condonation application, the learned Appellate Court in its internal page 3 has considered the delay and after taking into consideration the principles laid down in RD 2011, Vol.112, 61 Prem Nath Singh vs. State, while taking liberal view for considering the delay condonation application in fact, has recorded a finding for venturing on the delay condonation application and consequently, on merits of the appeal itself and hence an observation which has been made, that the argument of the petitioners, which was raised before the appellate authority, that the procedure as provided under the Land Revenue Act to be read with the Revenue Court Manual, particularly in reference to the provisions contained under Para 197 and Rule 376 and 377, the Appellate Court had rather considered its impact and after observing therein that in view of the judgment of the Hon’ble Apex Court as rendered in 2012, in the matters of Dayanandi Vs. Rukma D. Swarn and Others; particularly the reference has been made to it, in para 13, had allowed the appeal and remanded the matter. Hence, this Court is of the view that it cannot be said that the appellate court has not considered the effect of delay before passing the judgment of 16.12.2015 on its merits because court’s intention was quite explicit, and the manner in which the implications of Section 5 has been considered, it would be deemed that there was an application of mind by the court and in considering the aspect of delay and hence this ground taken by the counsel for the petitioners, that the delay was not condoned and the matter was decided without condoning the delay is not sustainable, because the findings recorded itself rather apparently shows the inclination of the Appellate Court of having applied its mind from the prospective of application and considering the aspect of delay while deciding the appeal. 17. 17. The learned counsel for the petitioners had in his first phase of argument had argued that the provisions contained under Order 41 Rule 23 and Order 41 Rule 23-A of the C.P.C., which vests with the power of remand, would not be applicable over the courts created under the Land Revenue Act. 18. This Court during the course of argument, when had referred to the provisions contained under Section 216 and particularly, when the procedure itself is governed by Chapter X of the Land Reforms Act, the implications of Order 41 Rule 23 and Order 41 Rule 23-A of the C.P.C. will have no bearing in deciding the proceedings by the appellate authority under Section 210 to be read with Section 216, and remanding the matter for its fresh decision. 19. Lastly, the learned counsel for the petitioners had submitted that the appellate judgment of 16.12.2015 suffers from an apparent defect as the application under Order 41 Rule 27 of C.P.C., which was placed by the respondents in support of their appeal was not decided on merits and rather the document filed in support thereto were taken into consideration without allowing the application under Order 41 Rule 27 of the C.P.C.. 20. At this juncture itself once again the Court had called upon the petitioners to answer the question, as to in the absence of applicability of the provisions contained under the Code of Civil Procedure, over the proceedings, which are summary in nature and governed by the provisions of the Land Revenue Act, how would the implications of Order 41 Rule 27 of the C.P.C. be attracted? 21. In order to substantiate his argument, the learned counsel for the petitioner has argued that in view of the Rule 176 of U.P. Revenue Court Manual, the provisions as contained in its Rule 176, has provided the applicability of certain provisions of the C.P.C., which has been extracted to be attracted over the proceedings, which are held by the Revenue Courts and, particularly, he has also made reference to the provisions contained under Order 41 of C.P.C. which is inclusive of the provisions contained under Order 41 Rule 27 of the C.P.C. The relevant Rules 176 of the Revenue Court Manual is extracted hereunder :- “176. Application of certain provision of the Civil Procedure Code. Application of certain provision of the Civil Procedure Code. – The provisions of Rules 2 to 4, 6 to 10, 15 to 29, 31 to 37 of Order XLI, Order XLII and Sections 99 and 144 of the Code of Civil Procedure relating to appeals from decree shall apply to appeals from orders under the Uttar Pradesh Land Revenue Act. Provided that the decree passed by the Board of Revenue may be dated and signed by the Registrar of the Board.” 22. This contention of the learned counsel for the petitioner, that in view of the Rule 176 of the Revenue Court Manual , the provisions of Order 41 Rule 27 of the CPC would apply to the summary proceedings under Section 34 of the Land Revenue Act and, particularly, while scrutinizing the proceedings, which are summary in nature, this Court is of the view that when the summary proceedings are being conducted under the self contained Code, which regulates its own procedural provisions, as provided under its Chapter 9, in that eventuality, the General Rules of regulating the procedure of the Revenue Courts as provided under Rule 176 of the Revenue Court Manual would not be applicable, and the logic behind it is that if Part-I of the Revenue Court Manual is taken into consideration, it is a general procedure relating to “Suits, Appeal and other proceedings in Revenue Courts”, not the summary proceedings as presently involved in the case, that means to say that the general procedural rule will not override, the specific procedure as contained under the Statute, in which, the proceedings are being held. Hence, the Revenue Court Manual will not have a statutory force, because having no source of law, under which, it has been formulated for regulating the procedure of the summary proceedings contemplated under the Act. Hence, this contention of the learned counsel for the petitioner is not accepted by this Court. 23. In support of his contention at the first instance, the learned counsel for the petitioners had made references to the following judgments, which were all rendered by Board of Revenue. It is settled law, which needs no further elaboration, that the judgments of the Board of Revenue, are not the legal and binding precedents on the Constitutional Courts, exercising their powers under Article 227 of the Constitution of India. It is settled law, which needs no further elaboration, that the judgments of the Board of Revenue, are not the legal and binding precedents on the Constitutional Courts, exercising their powers under Article 227 of the Constitution of India. Hence, they may not be having any persuasive value in the High Courts, for the purposes of the petitioners’ case. To elaborate on the applicability of the provisions contained under Order 41 Rule 23 of the C.P.C. or under Order 41 Rule 27 of the C.P.C. and the rationale of not accepting the ratio relied by the petitioners, is on the ground that if almost all the judgments, if are taken into consideration, which has been dealt by the authorities relied by the petitioners all were the proceedings, which were held under the special statute on a regular side and which have no reference for the purposes of dealing with the summary proceedings which are conducted under the Land Revenue Act, for recording the name of a person in the Revenue Records, under Section 34 of the Act, which is only fiscal entry, which has got or would have no bearing or having any deliberations or effect on the title of the applicant or the opposite party. The authority as relied by the petitioners counsel are for example:- I. In the judgment reported in 1971 RD 490 Ajit Singh vs. Khambhoo Singh and others, it was a case which was dealing with the powers of remand of the appellate court under Order 41 Rule 23 of the C.P.C. and Order 41 Rule 25 of the C.P.C. but “in a proceedings which were held under Section 176 of the U.P. Z.A. & L.R. Act, which was rather on the regular side,” i.e. partitioning of a holding which is a regular proceedings over which the provisions of CPC applies, in the light of the provisions contained under Section 341 of the U.P. Z.A. & L.R. Act. Hence, this principle will not apply in the instant case, which was being conduct under the provisions of Land Revenue Act, 1901. II. Hence, this principle will not apply in the instant case, which was being conduct under the provisions of Land Revenue Act, 1901. II. The second judgment on which the reliance has been placed by the learned counsel for the petitioners, is that as reported in RD 1972 (2) Ram Lal vs. Bhaggoo, which was yet again dealing with the aspect and provisions of U.P. Tenancy (Amendment) Act of 1947 and the implications of governing the proceedings, which were held under the said provisions. This judgment too was a judgment rendered by the Board of Revenue, which would not have a binding precedent, over the constitutional courts and that too when the said case, as per the observations made in para 4 of the judgment, was dealing with the proceedings which were being held under Section 209 of the Act, to be read with Section 229-B of the U.P. Z.A. & L.R. Act, which too are the regular proceedings under the provisions of the U.P. Z.A. & L.R. Act and it will not have any binding effect over the summary proceedings, with which we are concerned in the present case and that too particularly in the light of the fact that these are proceedings were governed by the Code of Civil Procedure. III. The counsel for the petitioners had made reference to yet another judgment as reported in 1975 RD 150 Jamuna Prasad vs. Satya Narain, whereby the issue of applicability of Order 41 Rule 23 and 24 of the C.P.S. was being considered in its applicability to the proceedings, which were held under Section 229-B of the U.P. Z.A. & L.R. Act. Hence, too the said judgment yet again because, being of a Board of Revenue and dealing with the distinct subject engaging declaration of rights, altogether will not apply in the present case. That too when the proceedings under the U.P.Z.A & L.R. Act are governed by Section 341 of U.P.Z.A. & L.R. Act, which makes C.P.C. applicable. IV. Hence, too the said judgment yet again because, being of a Board of Revenue and dealing with the distinct subject engaging declaration of rights, altogether will not apply in the present case. That too when the proceedings under the U.P.Z.A & L.R. Act are governed by Section 341 of U.P.Z.A. & L.R. Act, which makes C.P.C. applicable. IV. In yet another judgment reported in 1975 RD Naresh vs. Gaon Sabha, as relied by the counsel for the petitioner, where almost on an identical principle was being considered pertaining to the application of Order 41 Rule 23 of the C.P.C., i.e. the powers of a remand by the Appellate Court, while exercising its inherent power of remand, that too was a case which was yet again decided by the Board of Revenue, which was emanating out of the regular declaratory proceedings which were held under Section 229-B, it will have no applicability in the circumstances of the present case. V. Lastly, the counsel for the petitioners had made reference to a judgment reported in 1969 RD 115 Algoo vs. Sitala Prasad, which was dealing with the effect of an Order 41 Rule 23 and 25 of the C.P.C. i.e. the grounds for remand provided under the Code of Civil Procedure, and whether ending of a suit on a preliminary ground and for a direction to take a decision afresh was at all necessary! It was yet again a case which was being decided by the Board of Revenue, in the context of the proceedings, where the plaintiff therein had filed a suit under Section 209 of the Act, and was claiming to regain a possession of land over, which they had claimed to be the bhoomidhar. This judgment since was again arising out of the regular proceedings and rendered by the Board of Revenue, would not apply in the instant case which under different Act, dealing with summary cases. Particularly when the courts rendering the judgment, are the subordinate courts, over which High Court exercising its supervisory jurisdiction under Article 227 of the Constitution of India. 24. Particularly when the courts rendering the judgment, are the subordinate courts, over which High Court exercising its supervisory jurisdiction under Article 227 of the Constitution of India. 24. The learned counsel for the petitioners had submitted, that in case if the appellate order is taken into consideration, when the appellate authority was exercising its powers under Section 210 of the Land Revenue Act, it ought not to have dealt with the matter on merits, as if it was deciding a regular proceedings by entertaining the evidences and appreciating, it on its own merits, because according to him under the Revenue Court Manual, under the provisions contained under Chapter 7 Para 176, the reference of which has been made by the learned counsel for the petitioners are in a summary proceedings which are being held under Section 34, which was the genesis of the appeal under Section 210 of the Land Revenue Act, it cannot or could not be decided as a regular suit. 25. This Court is afraid to appreciate, this argument of the learned counsel for the petitioners for the reason being, that factually, it was the petitioners who was claiming himself to be recorded in the Revenue Records, on the basis of the registered will of 27.06.1997, as it was alleged, to have been, executed by one Mr. Amar Singh, and it was rather he who got Case No.30/106 of 2007-2008; initiated before the court of Tehsildar under Section 34 of Land Revenue Act. If the petitioners draws an inference, that the matter cannot be decided, as if it is a trial of the regular case, his argument cannot be accepted; because they cannot take the liberty to simultaneously, blow hot and cold at the same time for getting their name recorded; for the reason being that if the finding recorded in principle judgment of 17.02.2009, by the court of Nayab Tehsildar is taken into consideration, in fact it was the petitioners themselves who had adduced the evidence by producing the attesting witness and placing reliance on the report of Halka Patwari, in order to establish the factum of possession and rather it was he who was stepping into the proceedings, as if he was getting his title decided, under the garb of the proceedings which were being held under Section 34 of the Land Revenue Act. If the petitioners themselves have taken advantage of leading an evidence on merits of the case to prove the will, to get an order under Section 34, in that eventuality, the Appellate Court in an appeal, which has been filed by the respondents, which is a continuation of the proceedings, was bound to consider its implications and those considerations since were having its seeds which had germinated from the order of Nayab Tehsildar, itself dated 17.02.2009, it cannot be said that the Appellate Court has exceeded the exercise of its jurisdiction because the appellate court was bound to appreciate the facts and evidence while rendering a judgment of reversal. 26. This argument could be further appreciated from an another view point that the provisions of Land Revenue Act, irrespective of the findings, which are recorded by any of the authorities which are created under the Land Revenue Act, at any stage of the proceedings upto the Revisional proceedings under Section 219, that is the revisional jurisdiction, that will still have no bearing on a declaration of regular rights by the competent Revenue Courts and that is the reason, why the legislature had provided for the provisions contained under Section 40-A of the Land Revenue Act; that irrespective of the findings, which are recorded under the proceedings under Section 34 of the Land Revenue Act, will not have any bearing or effect the declaration of right which were claimed based on the will, where the defect under Section 169 of the U.P. Z.A. & L.R. Act, is permissible and if the spirit of Section 40-A is taken into consideration, even the findings of appreciation of evidence, would not at all create any embargo or would be detrimental to the interest of any of the parties to the proceedings, in getting their regular rights decided. In continuation to this argument the learned counsel for the petitioners submitted that the respondents had already filed a Civil Suit No.02 of 2005, for grant of decree of injunction, which was dismissed for want of prosecution on 10.02.2012 and hence in fact a bar would be created against the respondents. 27. In continuation to this argument the learned counsel for the petitioners submitted that the respondents had already filed a Civil Suit No.02 of 2005, for grant of decree of injunction, which was dismissed for want of prosecution on 10.02.2012 and hence in fact a bar would be created against the respondents. 27. With all humanity at my command, the proceedings of injunction suit, whether the finding of title or ownership or possession in records its only incidental in nature and it will have no bearing and that too particularly in the light of the facts and circumstances of the present case, where even the civil suit, was not decided on merits rather, it was admittedly dismissed in default and hence too in the light of the provisions contained under the Code of Civil Procedure, on a dismissal of the suit for want of prosecution, could be an aspect, which could be dealt with by either of the parties to the proceedings, which would be or may be resorted to the proceedings, which are saved by the provisions contained under Section 40-A of the Land Revenue Act. Lastly, if the implications of the impugned orders are taken into consideration and particularly in the light of the findings which has been recorded in para 8, by the revisional court for assigning its logic for affirming the Appellate Court’s order of remand; in fact the order of remand takes the shape of an interlocutory order, where no rights are decided on its own merit, rather all the issues are still left opened to be reconsidered by the principle court, where the proceedings have been remanded and hence the interlocutory order of remand, since it is not an adjudication of any right, may be a fiscal right also, the writ petition would be barred, in view of the ratio laid down by the Hon’ble Apex Court in the judgments reported in AIR 1981 Supreme Court 707 Kshitish Chandra Bose vs. Commissioner of Ranchi. Para 8 of the judgment is extracted hereunder:- 8. It was then observed by the High Court that mere sporadic acts of possession exercised from time to time would not be sufficient for the acquisition of title by adverse possession. Para 8 of the judgment is extracted hereunder:- 8. It was then observed by the High Court that mere sporadic acts of possession exercised from time to time would not be sufficient for the acquisition of title by adverse possession. As discussed above, the High Court has not at all cared even to go through the evidence regarding the nature of the acts said to have been committed by the Appellant nor to find out whether they were merely sporadic or incidental. Another reason given by the High Court was that the adverse possession should have been effective and adequate in continuity and in publicity. Here, the High Court has gone wrong on a point of law. All that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. Such a requirement may be insisted on where an ouster of title is pleaded but that is not the case here. The findings, however, clearly show that the possession of the Plaintiff was hostile to the full knowledge of the municipality. In this connection we might extract below the well considered findings recorded by the trial court and Additional Judicial Commissioner both on the question of title and that of adverse possession. Trial Court (Re-Title): “I have, therefore no doubt that these receipts relate to the suit land and, therefore, they show payment of rent by the Plaintiff or his father. Thus, it has got to be held that the land belonged to the landlords within whose zamindari it lay. The Plaintiff's father, therefore, obtained a valid title by the settlement from them. (Re-Adverse Possession) “I, therefore, find that the Plaintiff has also obtained title by adverse possession inasmuch as he and his father before him had been in continuous possession of this land from 1912 till 1957 when they were dispossessed by the order of the Magistrate in the case Under Section 145 Code of Criminal Procedure. Considering all these, I hold that the plaintiff has subsisting title to the suit land and he is entitled to khas possession of the same.” Additional Judicial Commissioner (Re-Title) “There can be no doubt that Exts. 5 to 5(g) relate to the same lands for which the Hukumanama (Ext. Considering all these, I hold that the plaintiff has subsisting title to the suit land and he is entitled to khas possession of the same.” Additional Judicial Commissioner (Re-Title) “There can be no doubt that Exts. 5 to 5(g) relate to the same lands for which the Hukumanama (Ext. 18) was granted as they are for the same area as given in the Hukumanama and the first of these namely, Ext. 5 is for the very first year after the settlement and is dated 20.5.1913. Certainly by the Hukumanama (Ext. 18), which is unregistered document the land in suit could be settled and it could create good title in favour of the settle as the settlement was for agricultural purpose and was accompanied by the delivery of possession and grant of rent receipts............... P. Ws. 1, 2, 6, 9 and 8 (Plaintiff) have stated about the constant possession of the Plaintiff and his father.” (Re-Adverse Possession) “Thus from the facts stated above it is quite clear that the Plaintiff and his father were coming in possession of the land in suit since 1912 till the year 1954-55. The Municipality made several attempts to prevent the Plaintiff and his father from storing building materials on the suit land from 1924 till 1954-55. Thus the Plaintiff's father is proved to have been in possession of the suit land both before and after the Municipal Survey of 1928-29. The oral evidence P. Ws. 1, 6, 5, 8 and 9 also prove the Plaintiff and his father were in actual possession of the suit land at all time after the settlement by the landlord in 1912. Hence, the presumption of correctness of the Municipal Survey entry has been successfully rebutted in this case by the plaintiff.” The High Court was clearly in error in interfering with the aforesaid findings of fact.” [2001 (92) R.D. 330] Ram Bhajan and others vs. Deputy Director of Consolidation, Allahabad and another. Para 4 & 6 of the judgment are extracted hereunder:- “4. Having considered the order of S.O.C. it appears that he has recorded a finding that Smt. Azharunnisha was remarried with Zamir Uddin although it was not clear that on what date she had remarried. He has remanded the matter directing the trial court to frame issue and decide the same. 6. Having considered the order of S.O.C. it appears that he has recorded a finding that Smt. Azharunnisha was remarried with Zamir Uddin although it was not clear that on what date she had remarried. He has remanded the matter directing the trial court to frame issue and decide the same. 6. Having considered the submissions made by the parties I am of the opinion that the issue which is required to be framed by C.O. after remand is an issue regarding remarriage of Smt. Azharunnisha and not merely the issue regarding date of remarriage, therefore, I find that observation of S.O.C. is merely for deciding the appeal and is not intended to be binding upon the C.O. In this view of the matter the remand order is interlocutory in nature and revision against the same was not maintainable under Section 48. The Consolidation Officer is, therefore, directed to frame independent issue as to whether Smt. Azharunnisha had remarried with Jamir Uddin, and date of remarriage also, and after taking evidence of the parties the Consolidation Officer will decide the matter, uninfluenced by observations in the judgment of S.O.C.” 28. Hence, in view of the reasons given above, since the revisional court’s order has only affirmed the order of remand of a summary proceeding, which were decided by the appellate court, which were initiated at the behest of the petitioner under Section 34 of the Land Revenue Act, those are the interlocutory proceedings, which are yet to be decided on merits and hence, the contentions which had been dealt with above as raised by the petitioners are not acceptable by this Court. The writ petition lacks merits and the same is accordingly dismissed.