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2024 DIGILAW 683 (ALL)

Shashi Kant v. Board of Revenue

2024-03-04

CHANDRA KUMAR RAI

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JUDGMENT Chandra Kumar Rai, J. Heard Ms. Jyoti Giri, learned counsel for the petitioners, Sri. Shyam Lal Yadav/Sri. Aprajit Yadav, learned counsel for respondent nos. 5 & 6, the learned standing counsel for the state-respondents and Mr. Pradeep Singh for respondent No.3/Gram Panchayat. 2. Brief facts of the case are that suit under Section 229-B of the U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as the "U.P. Z.A. & L.R. Act") was filed by Ramdei (mother of respondent No - 5 & 6) under Section 144 of the U.P. Revenue Code, 2006 in respect to plot no.195M, area 0.384 hect., situated at village Gopalpur Taluka Kodh, Pargana Bhadohi, Tahsil Gyanpur, District Bhadohi impleading one Mridula Devi, Gram Panchayat & state as defendant. The aforementioned suit was decreed in ex parte manner vide judgment and decree dated 25.8.2020 for recording the name of respondent No.5 &6 over plot No.195 M area 0.293 hectare. Against the judgment and decree of the trial court dated 25.8.2020 recall/restoration application dated 22.7.2021 along with prayer for condonation of delay supported with affidavit was filed by the petitioners (Sons of Mridula Devi) which was allowed vide order dated 31.12.2021. Against the order dated 31.12.2021, Revision No.82/2022 was filed by respondent No.5 & 6 before respondent no.2/Board of Revenue under Section 210 of the U.P. Revenue Code, 2006 which has been allowed in part vide order dated 13.4.2022 setting aside the order dated 31.12.2021 and remitting the matter back before the trial court to decide the restoration as well as delay condonation matter afresh. Hence, this writ petition against the order dated 13.4.2022, passed by respondent no.2/Board of Revenue, U.P at Allahabad. 3. This Court entertained the matter on 13.5.2022 and granted interim protection in the matter. 4. In pursuance of the order dated 13.5.2022 the parties have exchanged their affidavit. 5. Counsel for the petitioner submitted that suit under Section 144 of the U.P. Revenue Code, 2006, has been decided in arbitrary and ex parte manner. She further submitted that declaratory suit cannot be decided without framing issues in the suit but in the instant matter the suit for declaration has been decreed by passing cryptic judgment as well as without framing issues in the suit. She further submitted that declaratory suit cannot be decided without framing issues in the suit but in the instant matter the suit for declaration has been decreed by passing cryptic judgment as well as without framing issues in the suit. She further submitted that on the recall application as well as delay condonation application filed by the petitioners,notice were issued to other side, accordingly, ex parte decree has been set aside and suit proceeding has been restored on its original number to decide the proceeding afresh but the Board of Revenue has illegally set aside the order dated 31.12.2021 restoring the suit on its original number on the ground that restoration application as well as delay condonation application has been allowed by the trial court in the arbitrary manner without notice & opportunity to other side. She further submitted that the impugned revisional order dated 13.4.2022 passed by the Board of Revenue be set aside and the order dated 31.12.2021 passed by the trial court, restoring the suit under Section 144 of the U.P. Revenue Code, 2006 on its original number for fresh trial, be maintained. 6. On the other hand, Mr. Shyam Lal Yadav, learned counsel for respondent nos. 5 & 6 submitted that recall/restoration application cannot be allowed without proper notice and opportunity of hearing to the other side. He further submitted that there was no sufficient service upon the respondent No.5&6 as such the recall application as well as delay condonation application filed by petitioners cannot be allowed, hence, the Board of Revenue has rightly exercised the jurisdiction, setting aside the order, dated 31.12..2021 allowing the recall/delay condonation application and remitting the matter to decide the restoration proceeding as well as delay condonation proceeding afresh. He submitted that no interference is required against the order of Board of Revenue and writ petition is liable to be dismissed. He also submitted that the order dated 31.12.2021 passed by respondent no.1 is non-speaking order, as such, the same has been rightly set aside by the Board of Revenue under impugned order dated 13.4.2022. 7. I have considered the arguments advanced by learned counsel for the parties and perused the records. 8. There is no dispute about the fact that the trial court has decided the suit under Section 144 of the U.P. Revenue Code, 2006, without framing issues in the suit. 7. I have considered the arguments advanced by learned counsel for the parties and perused the records. 8. There is no dispute about the fact that the trial court has decided the suit under Section 144 of the U.P. Revenue Code, 2006, without framing issues in the suit. There is also no dispute about the fact that against the judgment & decree of the trial court dated 25.8.2020. The restoration/delay condonation application dated 22.7.2021 has been allowed vide order dated 31.12.2021 and the suit has been restored on its original number for fresh decision in accordance with law. There is also no dispute about the fact that the Board of Revenue has set aside the order dated 31.12.2021 and remitted the matter back before the trial court to decide the restoration as well as delay condonation proceeding afresh. 9. So far as the scope of suit under Section 144 of the U.P. Revenue Code, 2006/229B of U.P.Z.A.&L.R.Act is concerned, this Court in the case reported in (2020) 146 (RD) 186 , Babu v. Mahavir and Others has held that suit for declaration under Section 144 of the U.P. Revenue Code, 2006 cannot be decided without framing issues in the suit. The relevant paragraph No.4 to 7 of judgment rendered in Babu (Supra) are as under :- "4. The manner in which the suit instituted by the respondent No. 1 under section 229-B of U.P. Z.A. & L.R. Act has been decided by the impugned order dated 28.1.2019 cannot be appreciated. The Trial Court has neither framed issues nor has provided any opportunity of leading evidence to the parties to prove their respective cases. The provisions contained in Code of Civil Procedure has been given a go bye. 5. As already observed above by the Court in its order dated 21.2.2019, the proceedings under section 229-B of U.P.Z.A & L.R Act are regular proceedings where declaration of rights in a holding is decided on the basis of evidence. 6. Learned Counsel for respondent No. 1 has also not been able to defend the impugned order; rather he appears to agree that the matter ought to have been remanded to the Sub-Divisional Officer concerned. 7. 6. Learned Counsel for respondent No. 1 has also not been able to defend the impugned order; rather he appears to agree that the matter ought to have been remanded to the Sub-Divisional Officer concerned. 7. For the aforesaid reasons, this petition is allowed and the judgment and order dated 28.1.2019 passed by the Sub-Divisional Officer, Malihabad, Lucknow in Computerized Case No. T201810460101621; Mahavir v. Babu and others, under section 229-B of U.P. Z.A & L.R. Act, as is contained in Annexure No. 1 to the writ petition, is hereby quashed." 10. In the instant matter, the trial court has decreed the suit under Section 144 of the U.P. Revenue Code, 2006 by two-page order, without framing issues in the matter although the issue of 164 of U.P.Z.A.& L.R. Act is involved in the matter as such, there was no illegality in the order dated 31.12.2021, passed by the trial court, setting aside the ex parte judgment of the trial court dated 25.8.2020 & restoring the suit for fresh trial. The Board of Revenue has set aside the order dated 31.12.2021 on the ground that proper notice/opportunity was not afforded in the delay condonation/restoration matter by the trial court but the crux of the matter is that judgment passed by the trial Court in the suit for declaration, cannot be sustained ultimately on merit as such there is no necessity to remand the matter for fresh consideration of restoration & delay condonation matter. 11. This Court in the case reported in 1985 RD 71 Paras Nath Singh v. Deputy Director of Consolidation and others has held that any order passed without jurisdiction is a nullity and deserves to be set-a-side, but if as a result of setting aside of that order another wrong and illegal order would be restored then court will refuse to interfere with the order under challenge. 12. In the instant matter if the order dated 31.12.2021 is set-a-side then illegal order of trial Court dated 25.8.2020 will be restored as such board of revenue should not interfere against the order dated 31.12.2021 passed by trial Court setting aside the illegal order dated 25.8.2020 & restoring the declaratory suit for fresh trial in accordance with law. 13. 12. In the instant matter if the order dated 31.12.2021 is set-a-side then illegal order of trial Court dated 25.8.2020 will be restored as such board of revenue should not interfere against the order dated 31.12.2021 passed by trial Court setting aside the illegal order dated 25.8.2020 & restoring the declaratory suit for fresh trial in accordance with law. 13. Considering the entire facts and circumstances of the case the impugned order dated 13.4.2022 passed by the respondent No.2/Board of Revenue is liable to be set aside and the same is hereby set aside. The writ - petition stands allowed and order of the trial court dated 31.12.2021 is hereby affirmed. It is further directed that the trial court shall register the suit for declaration under Section 144 of the U.P. Revenue Code, 2006 on its original number, and decide the same on merits, after framing issues and permitting the parties to lead evidence, in accordance with law, expeditiously, preferably within a period of six months from the date of production of the certified copy of the order. It is further directed that plaintiff shall take proper steps to substitute legal heirs of deceased defendant No. 1 Mridula Devi in the suit in accordance with law.