Research › Search › Judgment

Allahabad High Court · body

2025 DIGILAW 529 (ALL)

Mangey Ram v. Board of Revenue

2025-03-24

CHANDRA KUMAR RAI

body2025
JUDGMENT : CHANDRA KUMAR RAI, J. 1. Heard Mr. Pramod Jain, learned Senior Counsel assisted by Sri Pramod Kumar Singh Paliwal, learned counsel for the petitioner, Sri Sunil Kumar Singh, learned counsel for the respondent-gaon sabha, Sri Manu Saxena, learned counsel for respondent no.4/Nagar Palika and Sri Dinesh Kumar Verma, learned standing counsel for the state-respondents. 2. Brief facts of the case are that the petitioner’s ancestors were alleged to be granted lease by the Zamindar on 18.2.1946 in respect to plot no. 1261/2, area 5.40 hect. On the basis of the aforementioned lease, the petitioner’s ancestors were came in possession of the plot in dispute. After the death of the petitioner’s ancestors, petitioner came in possession of the plot in dispute. The area in question came under the provisions of The U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the “U.P. Z.A. & L.R. Act”) and the petitioner remained in possession over the plot in question even after enforcement of U.P. Z.A. & L.R. Act. Since the name of the petitioner was not recorded over the plot in question, accordingly, a suit under Section 229 -B of the U.P. Z.A. L.R. Act was filed on behalf of the petitioner to declare him as bhumidhar of the plot in question in view of the provisions contained under Section 122 -B (4F) of the U.P. Z.A. & L.R. Act. In the aforementioned suit, gaon sabha and state were impleaded as defendants. The aforementioned suit was decreed ex parte, accordingly, gaon sabha filed a recall application and on the basis of the recall application, the ex parte decree has been set aside vide order dated 17.7.1998. Against the order dated 17.7.1998, petitioner filed a recall application which was rejected vide order dated 14.9.1998. The petitioner challenged the orders dated 14.9.1998 and 17.7.1998 by way of appeal before the Commissioner. The aforementioned appeal was heard by the Additional Commissioner, Meerut Division, Meerut and the same was dismissed vide order dated 18.2.2000. Against the order dated 18.2.2000, petitioner filed a second appeal before the Board of Revenue which was registered as Second Appeal No.71-72 of 1999-2000. The Board of Revenue heard the aforementioned second appeal and vide order dated 14.10.2000, allowed the second appeal, declaring the petitioner as bhumidhar of the plot in question. Against the order dated 18.2.2000, petitioner filed a second appeal before the Board of Revenue which was registered as Second Appeal No.71-72 of 1999-2000. The Board of Revenue heard the aforementioned second appeal and vide order dated 14.10.2000, allowed the second appeal, declaring the petitioner as bhumidhar of the plot in question. In pursuance of the order dated 4.10.2000, petitioner’s name was recorded in the khatauni of 1415-1420 fasli. Against the final judgment/order dated 4.10.2000 passed by the Board of Revenue, a time-barred review application has been filed by the Nagar Palika on 1.2.2001. In the aforementioned review application, the petitioner has filed his objection, stating that the Nagar Palika has no locus to file review application as the village was not included under the notification dated 1.12.1945./16.2.1949. The Board of Revenue vide order dated 27.10.2009 allowed the review application, set aside the order dated 4.10.2000 and vested the plot in Nagar Palika. Hence, this writ petition for the following reliefs:- “(i) Issue a writ, order or direction in the nature of certiorari for calling of record of the case and quash the impugned judgment and order dated 27.10.2009 (Annexure No.8 to the writ petition) passed by respondent no.1/Board of Revenue, U.P. at Allahabad. (ii) Issue a writ, order or direction in the nature of mandamus, directing the respondents not to interfere in the peaceful possession of the land of gata no. 1162/2 situated in village Sikari Khurd, Modinagar, District Ghaziabad.” 3. This Court entertained the matter on 18.12.2009 and granted interim protection to the effect that no adverse action shall be taken against the petitioner as well as petitioner was also restrained from transferring the property in dispute or creating any third-party-interest. 4. In pursuance of the order dated 18.12.2009, counter affidavit dated 28.2.2025 has been filed by respondent no.4/nagar palika parishad. 5. Learned Senior Counsel for the petitioner submitted that the suit under Section 229 -B of the U.P. Z.A. & L.R. Act, filed by the petitioner, was dismissed by the trial court and decree was maintained in appeal but second appeal filed by petitioner was allowed and petitioner was directed to be recorded over the plot in question. He submitted that the nagar palika/respondent no.4 was not party in the suit, first appeal as well as in second appeal, as such, review application at the instance of the nagar palika/respondent no.4, cannot be entertained. He submitted that the nagar palika/respondent no.4 was not party in the suit, first appeal as well as in second appeal, as such, review application at the instance of the nagar palika/respondent no.4, cannot be entertained. He submitted that the Board of Revenue has exceeded his jurisdiction while deciding the review application filed by respondent no.4. He further submitted that in the review jurisdiction, rehearing of the matter cannot be made by the court has held by the Hon’ble Apex Court as well as by this Court from time to time. He further submitted that in view of the notification issued by the Government, the plot in question was not under the nagar palika at the relevant point of time, as such, there was no illegality in the judgment passed by the Board of Revenue. He submitted that the 2 nd appellate jurisdiction was exercised by the Board of Revenue in accordance with law, as such, the review jurisdiction exercised by the Board of Revenue is wholly illegal and the order passed in the review application is liable to be set aside. 6. On the other hand, Sri Manu Saxena, learned counsel for respondent no.4/nagar palika submitted that the village in question was under the nagar palika and the nagar palika was not impleaded in the proceeding, as such, there is no illegality in the impugned order passed by the Board of Revenue, allowing the review application and directing to vest the property in the nagar palika. He submitted that the second appellate court has not properly considered the matter and allowed the second appeal by passing a cryptic order, declaring the petitioner as bhumidhar of the plot in question. He submitted that in view of the order passed by this Court on 17.11.2009 in Writ Petition No.68965/2006 as well as subsequent orders passed by the state authorities, it is very much demonstrated that the plot in question was under the nagar palika at the relevant point of time. He submitted that the averment made in the counter affidavit filed by the nagar palika/respondent no.4, has not been denied by the petitioner, as such, 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. He submitted that the averment made in the counter affidavit filed by the nagar palika/respondent no.4, has not been denied by the petitioner, as such, 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 the suit under Section 229 -B of the U.P. Z.A. & L.R. Act filed by the petitioner was dismissed by the trial court and the recall application as well as 1 st appeal filed by the petitioner was also dismissed. There is also no dispute about the fact that the second appeal filed by the petitioner was allowed and the petitioner was directed to be recorded over the plot in question. There is also no dispute about the fact that in the review application filed by the nagar palika, the order of second appellate court was set aside and the plot in question was ordered to be vested in the Nagar Palika. 9. The perusal of the judgment of the Board of Revenue, deciding the second appeal, impleading the gaon sabha and the State, demonstrate that the second appeal has been allowed on the ground that petitioner has proved possession since before the date of vesting. The perusal of the subsequent orders passed by the Board of Revenue in exercise of the review jurisdiction, demonstrate that the nagar palika has not been given opportunity as well as nagar palika was not impleaded in the suit, 1 st appeal and the second appeal, as such, proper course open to the Board of Revenue was to implead the nagar palika, thereafter, second appeal can be decided in proper manner but the Board of Revenue while deciding the review application, has allowed the review application, set aside the order of the Board of Revenue and directed for vesting of the land in Nagar Palika. 10. So far as the suit under Section 229 -B of the U.P. Z.A. & L.R. Act, now Section 144 of the U.P. Revenue Code, 2006 is concerned, the suit of aforementioned category, is treated to be a suit of special character and the same should be decided after framing issues and giving parties to lead evidence in accordance with law. 11. 11. This Court in the case reported in 2020 (146) RD 186 , Babu vs. Mahavir and Others has held that the suit under Section 229 -B of the U.P. Z.A. & L.R. Act cannot be decided without framing issues and without affording opportunity to lead evidence to the parties. Paragraph nos. 2, 3 & 4 will be relevant for perusal which are as under:- “2. 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 28.01.2019 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. 3. As already observed above by the Court in its order dated 21.02.2019, 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. 4. 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.” 12. In the instant matter, suit under Section 229 -B of the U.P. Z.A. & L.R. Act filed by the petitioner was dismissed by the trial court and the decree of the trial court has been maintained in appeal by the 1 st appellate court/Additional Commissioner but in second appellate jurisdiction, the Board of Revenue has allowed the second appeal and decreed the plaintiff’s suit, holding that the petitioner is entitled to the benefit of Section 122 -B (4F) of the U.P. Z.A. & L.R. Act. 13. So far as the second appellate jurisdiction under Section 331 (4) of the U.P. Z.A. & L.R. Act exercised by the Board of Revenue is concerned, the Hon’ble Apex Court in the case reported in 2012 AIR SCW 6147, State of Uttarakhand vs. Mohan Singh and Others has held that the second-appeal under Section-331 (4) of U.P.Z.A & L.R. Act, before the Board of Revenue would lie on a question of law rather on substantial question of law. Paragraph Nos. Paragraph Nos. 26, 27 & 28 of the judgment of Hon’ble Apex Court rendered in State of Uttarakhand (supra) will be relevant for perusal which are as under:- “26. We are of the view that the principle laid down in Mahindra and Mahindra and the judgments referred to earlier clearly apply when we interpret sub-section (4) of Section 331 of the U.P. Act. Sub-section (4), as we have already indicated, has used the expression “on any of the grounds” specified in Section 100 of the C.P.C. Consequently, the then existing Section 100 (i.e. section 100, as it existed in 1908 unamended) was incorporated in sub-section (4) of Section 331 and substitution of the new Section 100 does not affect or restrict the grounds as incorporated. The right of appeal to the Board of Revenue under sub-section (4) of Section 331 clearly intended to be limited to the grounds set out in the then existing Section 100, since those were the grounds which were before the Legislature and to which the Legislature could have applied its mind and it is reasonable to assume that it was with reference to those specific and known grounds that the Legislature intended to limit the right of appeal. 27. The appeal before the Board of Revenue would, therefore, lie on a question of law. This legal aspect was not considered properly either by the Board of Revenue or by the High Court. Further, we also notice that the Board of Revenue has not examined the provisions of the land record and Lekhpal Diary No., date and P.A. 10. The Additional Commissioner had specifically noticed that P.A.10 which had been filed pertaining to year 1976 did not bear any signature and the same was found to be doubtful, as to whether the original ‘Kashtkar’ (tillers) of the land in dispute belonged to Tharu tribe, was also not properly examined. Further, the Board of Revenue also should have examined whether the land belonged to Tharu tribe and the plaintiff could claim the benefit of Section 210 of the U.P. Act. All these aspects are very vital for a proper and just adjudication of the dispute, which has not been done. 28. Further, the Board of Revenue also should have examined whether the land belonged to Tharu tribe and the plaintiff could claim the benefit of Section 210 of the U.P. Act. All these aspects are very vital for a proper and just adjudication of the dispute, which has not been done. 28. In such circumstances, we are inclined to allow the appeals and set aside the order passed by the High Court as well as that of the Board of Revenue and the matter is remanded to the Board of Revenue for fresh consideration, in accordance with law. However, we are not expressing any opinion on the merits of the case, since we are remitting the matter to the Board of Revenue. The Board of Revenue will pass the final orders within a period of three months from the date of receipt of this order.” 14. The Board of Revenue, in the instant matter, has allowed the second appeal filed by the petitioner and decreed the suit in the second appellate jurisdiction and Nagar Palika is raising objection that the benefit of Section 122 -B(4F) of the U.P. Z.A. & L.R. Act cannot be granted to the petitioner as the village in question where the plot in dispute is situated, was under the Nagar Palika but the Nagar Palika has not been impleaded in the proceeding since very beginning, as such, the Board of Revenue should examine the matter afresh, impleading the Nagar Palika in the second appeal and examine the issue as to whether the plot in question was under Nagar Palika at the relevant point of time as well as the other issues regarding possession, etc. as raised by the parties to the dispute. 15. So far as the review jurisdiction is concerned, it has been held from time to time that review is not rehearing of the dispute but if there is any error apparent on the face of the record, then the order passed on merit can be set aside by the court who has passed the judgment on merit. 16. 15. So far as the review jurisdiction is concerned, it has been held from time to time that review is not rehearing of the dispute but if there is any error apparent on the face of the record, then the order passed on merit can be set aside by the court who has passed the judgment on merit. 16. In the instant matter, the Nagar Palika has not been impleaded nor heard by the court and suit of the plaintiff has been decreed by the Board of Revenue while exercising the second appellate jurisdiction, as such, the judgment passed by the Board of Revenue, decreeing the plaintiff suit, without affording opportunity to Nagar Palika, cannot be sustained in the eye of law. 17. Considering the entire facts and circumstances of the case, the part of the impugned order dated 27.10.2009 passed by the Board of Revenue by which plot in dispute has been vested in Nagar Palika is liable to be set aside and the same is hereby set aside and other part of the impugned order dated 27.10.2009 by which order dated 4.10.2000 passed by Board of Revenue has been set aside is maintained but in place of dismissing the second- appeal filed by petitioner, the second appeal should be decided afresh, after impleading the nagar palika in the second appeal in proper manner. 18. The writ petition stands allowed in part and the matter is remitted back before the Board of Revenue to register the Second Appeal No.71-72 of 1999-2000 on its original number and decide the same afresh after impleading the nagar palika in second appeal. The Board of Revenue shall decide the second appeal expeditiously preferably within a period of 3 months from the date of production of the certified copy of the order, in accordance with law.