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2025 DIGILAW 383 (ALL)

Balakram v. Board of Revenue

2025-02-24

CHANDRA KUMAR RAI

body2025
JUDGMENT : CHANDRA KUMAR RAI, J. 1. Heard Sri Surendra Pal, learned counsel for the petitioner, Sri Tarun Gaur, learned standing counsel for the state- respondents and Sri Sher Bahadur Singh, learned counsel for the respondent-gaon sabha. 2. Brief facts of the case are that petitioner’s father, namely, Sri Jamuna Prasad filed a suit under Section 229 -B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the “U.P. Z.A. & L.R. Act”) in respect to plot no.196, area 1.03, situated at village Barkhera Yasin, Tehsil Bisalpur, District Pilibhit, impleading Om Prakash, Gaon Sabha and state as defendants. Eight issues were framed including the issue relating to Section 49 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the “U.P. C.H. Act”) and parties led oral and documentary evidences in support of their cases. The trial court vide judgment and decree dated 19.11.1984, decreed the plaintiff’s suit, declaring the plaintiff as bhumidhar with transferable right in respect to disputed plot. Against the judgment and decree of the trial court dated 19.11.1984, State of U.P. filed a revision before the Commissioner which was heard and dismissed by the Additional Commissioner vide judgment and decree dated 28.9.1985. State of U.P. Challenged the judgment and decree dated 19.11.1984 as well as 28.9.1985 before the Board of Revenue by way of revision under Section 333 of the U.P. Z.A. & L.R. Act which was heard and dismissed by the Board of Revenue vide judgment dated 26.4.1994. State of U.P. filed a review application against the judgment of Board of Revenue dated 26.4.1994 which was registered as Review No.75 of 1996-97. The Board of Revenue vide judgment/order dated 3.2.2005 allowed the review application, set aside the judgment and decree passed by all the three courts as well as dismissed the plaintiff’s suit as barred by Section 49 of the U.P. C.H. Act. Hence, this writ petition on behalf of petitioner for the following reliefs:- “1. Issue a writ, order or direction in the nature of certiorari, quashing the judgment and order dated 3.2.2005 passed by the Board of Revenue, Allahabad (Annexure No.4 to the Writ Petition) 2. Issue a writ, order or direction in the nature of mandamus, commanding the Pradhan of the Gaon Sabha not to cut trees standing in the disputed land in question during the pendency of the instant writ petition.” 3. Issue a writ, order or direction in the nature of mandamus, commanding the Pradhan of the Gaon Sabha not to cut trees standing in the disputed land in question during the pendency of the instant writ petition.” 3. This Court entertained the matter on 26.5.2005 and stayed the operation of the order dated 3.2.2005 passed by respondent no.1/Board of Revenue. 4. In pursuance of the order dated 26.5.2005, counter affidavit has been filed on behalf of gaon sabha and petitioner has filed his rejoinder affidavit in the writ petition. 5. Counsel for the petitioner submitted that suit under Section 229 -B of the U.P. Z.A. & L.R. Act filed on behalf of the petitioner’s father was decreed by the trial court after framing issues and giving parties to lead evidence in accordance with law. He further submitted that one of the issues framed in the suit, was regarding bar of Section 49 of the U.P. C.H. Act. He submitted that the finding of fact has been recorded by the trial court that plaintiff is entitled to be recorded as bhumidhar with transferable right/grove holder of the plot in question. He submitted that the State of U.P. has filed revision before the Commissioner which was dismissed vide judgment dated 28.9.1985 and further revision filed before the Board of Revenue by the State of U.P. was also dismissed on merit vide judgment dated 26.4.1994. He submitted that in place of filing the appeal as well as second appeal, State of U.P. has filed revision which was dismissed on merit. He also submitted that the State of U.P. filed a review application before the Board of Revenue which has been allowed under the impugned order, setting aside all the three judgments passed by the trial court/revisional court as well as dismissed the plaintiff’s suit as barred by Section 49 of the U.P. C.H. Act. He submitted that the Board of Revenue in exercise of review jurisdiction, has illegally set aside the concurrent judgment and decree passed by the Trial Court/Commissioner Court/Board of Revenue as well as dismissed the suit as barred by Section 49 of the U.P. C.H. Act. He submitted that Hon’ble Apex Court has held from time to time that in exercise of review jurisdiction, the judgment passed on merit cannot be set aside unless there is error apparent on the face of record. He submitted that Hon’ble Apex Court has held from time to time that in exercise of review jurisdiction, the judgment passed on merit cannot be set aside unless there is error apparent on the face of record. He submitted that the procedure has been prescribed earlier under U.P.Z.A & L.R. Act now U.P. Revenue Code, 2006 with respect to the suit for declaration earlier under Section 229 -B of the U.P. Z.A. & L.R. Act now under Section 144 of the U.P. Revenue Code, 2006 for filing the appeal and second appeal against the judgment and decree of the trial court. He further submitted that the State of U.P. has not followed the procedure which has been prescribed under the Act/Code and in exercise of review jurisdiction the judgment and decree passed by the trial court, commissioner court and the board of revenue have been set aside. He submitted that the impugned judgment and order dated 3.2.2005 passed by the board of revenue should be set aside and the judgment and decree passed by the trial court dated 19.11.2004 should be affirmed. 6. On the other hand, Sri Tarun Gaur, learned standing counsel for the State and Sri Sher Bahadur Singh, learned counsel for the respondent-gaon sabha submitted that board of revenue has rightly exercised the review jurisdiction under the impugned order. He submitted that board of revenue has recorded the finding that suit is barred under Section 49 of the U.P. C.H. Act, accordingly, after allowing the review application, the suit of the plaintiff under Section 229 -B of the U.P. Z.A. & L.R. Act has been dismissed as barred by Section 49 of the U.P. C.H. Act, as such, no interference is required against the order impugned and the writ petition is liable to be dismissed. 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 suit under Section 229 -B of the U.P. Z.A. & L.R. Act filed by the petitioner’s father was decreed vide judgment and decree dated 19.11.1984. There is also no dispute about the fact that revision filed by the State of U.P. before the Commissioner was dismissed vide judgment dated 28.9.1985 and further revision filed by the State of U.P. before the Board of Revenue was dismissed vide judgment dated 26.4.1994. There is also no dispute about the fact that revision filed by the State of U.P. before the Commissioner was dismissed vide judgment dated 28.9.1985 and further revision filed by the State of U.P. before the Board of Revenue was dismissed vide judgment dated 26.4.1994. There is also no dispute about the fact that on the review application filed by the State of U.P. before the Board of Revenue, all the three judgments passed by the court, have been set aside and the plaintiff’s suit has been dismissed as barred by Section 49 of the U.P. C.H. Act. 9. In order to appreciate the controversy involved in the matter, the perusal of the issues framed before the trial court will be relevant which is as under:- The perusal of the finding of fact recorded by the trial court while deciding the issue nos. 7 & 8 will be relevant for perusal which is as under:- 10. The perusal of the finding of fact recorded by the trial court fully demonstrates that the trial court has considered the evidence adduced by the parties regarding Section 49 of the U.P. C.H. Act as well as regarding right and title of the plaintiff with respect to the disputed plot. The perusal of the finding of fact recorded by the trial court as quoted above demonstrates that the jurisdiction has been exercised by the trial court in proper manner. 11. The judgment of the trial court was assailed by the State of U.P. by means of a revision in place of appeal, although the revision was dismissed by the commissioner vide judgment dated 28.9.1985 but in place of challenging the judgment of the court of commissioner dated 28.9.1985 in second appeal, further revision was filed by the State of U.P., which too was dismissed on merit vide judgment dated 26.4.1994. The State of U.P. in place of challenging the judgment of the trial court, commissioner court as well as that of the board of revenue, before this Court, filed a review application before the Board of Revenue and the Board of Revenue while exercising the review jurisdiction, has passed the cryptic order by which the review application has been allowed, after setting aside the judgment of the trial court, court of commissioner as well as board of revenue and dismissed the plaintiff’s suit as barred by Section 49 of the U.P. C.H. Act which is not proper exercise of jurisdiction while deciding the review application by the Board of Revenue. The judgment and decree passed by the trial court after framing issues and giving the finding on each issue, can be reversed by appellate court/second appellate court/writ court in proper manner rather by passing a cryptic order, without setting aside the finding of fact recorded by the trial court while deciding the suit. 12. So far as the exercise of review jurisdiction is concerned, the Hon’ble Court in the case reported in (2023) 160 RD 107 S. Madhusudhan Reddy Vs. V. Narayana Reddy and Others has held that review is not rehearing. Paragraph no.35 of the judgment rendered in S. Madhusudhan Reddy (supra) will be relevant for perusal, which is as under: “35. In our opinion, even otherwise, recourse to successive review petitions against the same order is impermissible more so, when the Respondents have miserably failed to draw the attention of this Court to any circumstances that would entitle them to invoke review jurisdiction within the ambit of the Rules. Under the rules, the Respondents were not required to produce "genuine" documents but new documents/evidence that was not within their knowledge and could not have been so even after exercise of due diligence, which could have turned the tables in their favour. Nor has any error apparent on the face of the record been brought out by them.” 13. This Court in the case reported in 1985 RD 93 , Sharda Devi vs. Board of Revenue has held that finding of fact cannot be interferred with in exercise of second appellate jurisdiction by the Board of Revenue in arbitrary manner. Paragraph No.24 of the judgment rendered in Sharda Devi (supra) will be relevant for perusal which is as under:- "24. Paragraph No.24 of the judgment rendered in Sharda Devi (supra) will be relevant for perusal which is as under:- "24. In the aforesaid provision the emphasis by the Legislature is on all the interest which the transferor is then capable of passing in the property. In other words it is only the interest of the transferor which he is capable of conveying in the property that would pass to* the vendee and in case he is not capable of passing any interest in the property, nothing would pass to the vendee. In the instant case the vendors were left with no rights as they lost all rights, title and interest in the plots in dispute in the aforesaid compromise and these plots were given in favour of the petitioner and in lieu thereof some corresponding plots were given to the vendors. Hence the vendors had no interest left so as to convey the same to the transferors. It is thus crystal clear that the vendees had not derived any right, title or interest in the sale deed executed by the vendors in their favour. In view of the discussion hereinbefore, I am of the view that the Board of Revenue has clearly exceeded jurisdiction under Section 100 C.P.C. read with Section 331(4) of the Act. There was no scope of the second appellate Court to set aside the findings of fact recorded by the Additional Commissioner about the fraudulent or collusive nature of the decree. The findings of fact were also based on evidence and howsoever grossly erroneous they may appear to be, when in fact they were not erroneous, much less grossly erroneous, the second appellate Court had no jurisdiction to interfere with the same. The vendors, respondent Nos. 7 and 8 had no right, title or interest left in the plots in dispute after admitting the claim of the petitioner in the compromise decree, so as to be able to transfer any interest by the sale deed dated 11.7.1966 in favour of vendees. Hence the vendees did not derive any title out of the sale deed.” 14. 7 and 8 had no right, title or interest left in the plots in dispute after admitting the claim of the petitioner in the compromise decree, so as to be able to transfer any interest by the sale deed dated 11.7.1966 in favour of vendees. Hence the vendees did not derive any title out of the sale deed.” 14. It has also been held by the Hon’ble Apex Court as well as by this Court from time to time that the procedure which has been prescribed, is to be followed by the authorities /court otherwise the judgment / order/ decree passed by the court cannot be sustained in the eye of law. 15. In the instant matter, the judgment and decree passed in the suit under Section 229 -B of the U.P. Z.A. & L.R. Act was assailed by State of U.P. by way of revision before the Commissioner and after dismissal of revision by Commissioner, further revision was filed before the Board of Revenue which too was dismissed in place of filing of appeal as well as second appeal and in exercise of review jurisdiction, under the impugned order, the Board of Revenue by passing a cryptic order, has allowed the review application, set aside the judgment and decree passed by all the three courts as well as dismissed the suit of plaintiff as barred by Section 49 of the U.P. C.H. Act, without framing any point of determination in proper manner. 16. Considering the entire facts and circumstances of the case, the impugned judgment and order dated 3.2.2005, passed by respondent no.1/Board of Revenue, U.P., Allahabad is liable to be set aside and the same is hereby set aside. 17. The writ petition stand allowed and the judgment and decree dated 19.11.2004 passed by the Sub Divisional Officer, Bisalpur, District Pilibhit is hereby affirmed. 18. No order as to costs.