Allowed

Bechu and 4 Others v. Board of Revenue and 12 Others

Allahabad HC15 Sept 2022WRIB/768/2022

Case brief

AI extract

What is this about?

Petitioner challenged an interim order passed by the Board of Revenue in a second appeal. The Court held that under CPC and Revenue Code provisions, the Board must first admit the appeal and frame substantial questions of law before passing any interlocutory order, and set aside the impugned order. Writ allowed.

What did the court decide?

Impugned order dated 15.3.2022 set aside; matter remanded to Board of Revenue to pass fresh orders on admission of second appeal within 3 months.

Bechu and 4 Others Vs Board of Revenue and… — Civil Procedure and Limitation | Allahabad HC (2022)

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Court No. - 52

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Case :- WRIT - B No. - 768 of 2022

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Petitioner :- Bechu And 4 Others Respondent :- Board Of Revenue And 12 Others Counsel for Petitioner :- Sudhanshu Pandey Counsel for Respondent :- C.S.C.,Anup Kumar Srivastava,Balendra Deo Misra,Kaushlendra Pratap Singh,Pradeep Kumar Singh,Sanjay Kumar Singh

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Hon'ble Chandra Kumar Rai,J.

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Heard Sri Sudhanshu Pandey, learned counsel for the petitioners, Sri B.D. Misra, counsel for respondent nos. 4 & 5, Sri Pradeep Kumar Singh, counsel for respondent - Gaon Sabha and Sri Kaushlendra Pratap Singh, counsel for respondent nos. 10 & 11.

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The brief facts of the case are that a suit under Section 229-B of the U.P. Z.A. & L.R. Act was filed by contesting respondents on 16.8.2011 for declaration in which petitioners were defendants. Trial Court vide judgment and decree dated 4.10.2021 dismissed the plaintiff's suit as barred by Section 49 of the U.P. C.H. Act as well as not maintainable. Against the judgment and decree dated 4.10.2021, plaintiff-respondent nos. 4 & 5 filed appeal under Section 331(3) of the U.P. Z.A. & L.R. Act before the Commissioner which was dismissed vide judgment and decree dated 10.2.2022. Against the judgment and decree of the courts below dated 10.2.2022, plaintiff-respondent nos. 4 & 5 filed Second Appeal No.432 of 2022 before this Court under Section 208/2006 and Board of Revenue vide order dated 15.3.2022, without admitting the appeal and without formulating the substantial questions of law, has granted interim order dated 15.3.2022, hence this writ petition.

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This Court while entertaining the writ petition has passed the following interim order dated 5.5.2022:

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"The petitioners have preferred the present writ petition with the prayer to quash the order dated 15.03.2022 passed by the Board of Revenue at Allahabad/respondent No.1 in Second Appeal No.432 of 2022 (Computer Case No.AL2022053100432) (Deenanath & others Vs. Additional Commissioner & others).

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It is argued by learned counsel for the petitioner that while granting interim protection, substantial question of law were not framed. He also relied upon a judgement of the Hon'ble Apex Court passed in the case of Raghavendra Swami Mutt Vs. Uttaradi Mutt reported in AIR 2016 SC 1589 The relevant paragraph of the aforesaid judgement is reproduced below:-

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"However, the High Court granted interim order by staying the execution of the decree It is against the said order granting interim relief the respondent in the second appeal has preferred this appeal. This Court, on a number of occasions, has repeatedly held that the High Court acquires jurisdiction to decide the second - appeal or deal

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with the second appeal on merits only when it frames a substantial question of law as required to be framed under Section 100 of the Civil Procedure Code. In the present case, what we find is that the High Court granted interim order and thereafter fixed the matter for framing of question of law on a subsequent date. This was not the way to deal with the matter-as contemplated under Section 100 CPC. The High Court is required to frame the question of law first and thereafter deal with the matter. Since the High Court dealt with the matter contrary to the mandate enshrined under Section 100 CPC, the impugned order deserves to be set aside."

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Matter requires consideration.

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Learned Standing Counsel accepted notice on behalf of respondent Nos.1, 2, 3, 13 & 14 and Sri Vibhu Rai, learned counsel for respondent No.12.

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Issue notice to respondent Nos.4 to 11, returnable at an early date.

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Steps be taken within ten days.

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List on the date fixed in the notice.

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Till the next date of listing, effect and operation of the order dated 15.03.2022 passed by Board of Revenue shall remain stayed."

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Counsel for the petitioners submitted that the Board of Revenue, without admitting the Second Appeal and without formulating the substantial questions of law, has illegally passed the interim order which is against the provisions contained under Sections 100 & 101 of the Code of Civil Procedure as according to Section 214 of the U.P. Revenue Code, 2006, the provisions of the C.P.C. are applicable in respect to the proceedings under the U.P. Revenue Code, 2006 also. He further submitted that the second appeal is barred by Section 231 of the U.P. Revenue Code, 2006. He further placed reliance upon Section 208 of the U.P. Revenue Code, 2006 and Section 331(4) of the U.P. Z.A. & L.R. Act, which are as follows:

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Section 208 of the U.P. Revenue Code, 2006 is as follows:-

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"(1) Wherein any suit, application or proceeding specified in Column 2 of the Third Schedule, any final order or decree is passed in any first appeal filed under Section 207, and any party to such appeal is aggrieved by it, such party may prefer a second appeal to the Court specified against it in Column 5.

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(2) The appellate Court shall not entertain a second appeal unless it is satisfied that the case involves a substantial question of law.

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(3) The period of limitation for filing a second appeal under this section shall be ninety days from the date of the order or decree appeal against."

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Section 331(4) of the U.P. Z.A. & L.R. Act is as follows:-

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"A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in coloumn 6 of the Schedule aforesaid."

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He further placed reliance upon Section 214 of the U.P. Revenue Code, 2006, which is as follows:-

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"214. Applicability of Code of Civil Procedure, 1908 and Limitation Act, 1963- Unless otherwise expressly provided by or under this Code, the provisions of the Code of Civil Procedure, 1908 and the Limitation Act, 1963 shall apply to every suit, application or proceedings under this Code."

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Counsel for the petitioner further placed reliance upon the judgment of the Apex Court, reported in AIR 2016 SC 1589, Raghavendra Swamy Mutt vs. Uttaradi Mutt , in which it is held that the High Court has no jurisdiction to pass ex parte order without admitting the second appeal and formulating the substantial questions of law.

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Paragraph nos. 18 & 23 of the aforesaid judgment are quoted hereunder:-

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"18. In the instant case, the High Court has not yet admitted the matter. It is not in dispute that no substantial question of law has been formulated as it could not have been when the appeal has not been admitted. We say so, as appeal under Section 100 C.P.C is required to be admitted only on substantial question/questions of law. It cannot be formal admission like an appeal under Section 96 C.P.C. That is the fundamental imperative. It is peremptory in character, and that makes the principle absolutely cardinal. The issue that arises for consideration is; whether the High Court without admitting the second appeal could have entertained I.A. No. 1/2015 which was filed seeking interim relief. In Ram Phal (supra), from which Mr. Nariman, learned senior counsel has drawn immense inspiration, the two-Judge Bench was dealing with a case where the High Court had granted an interim order by staying the execution of the decree but had not framed the substantial question of law. In that context, the Court held:-

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“… However, the High Court granted interim order by staying the execution of the decree. It is against the said order granting interim relief the respondent in the second appeal has preferred this appeal. This Court, on a number of occasions, has repeatedly held that the High Court acquires jurisdiction to decide the second appeal or deal with the second appeal on merits only when it frames a substantial question of law as required to be framed under Section 100 of the Civil Procedure Code. In the present case, what we find is that the High Court granted interim order and thereafter fixed the matter for framing of question of law on a subsequent date. This was not the way to deal with the matter as contemplated under Section 100 CPC. The High Court is required to frame the question of law first and thereafter deal with the matter. Since the High Court dealt with the matter contrary to the mandate enshrined under Section 100 CPC, the impugned order deserves to be set aside.”

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23. Submission of the learned senior counsel for the appellant is that Order XLI Rule 5 confers jurisdiction on the High Court while dealing with an appeal under Section 100 C.P.C. to pass an ex parte order and such an order can be passed deferring formulation of question of law in grave situations. Be it stated, for passing an ex parte order the Court has to keep in mind the postulates provided under sub-rule (3) of Rule 5 of Order XLI. It has to be made clear that the Court for the purpose of passing an ex parte order is obligated to keep in view the language employed under Section 100 C.P.C. It is because formulation of substantial question of law enables the High Court to entertain an appeal and thereafter proceed to pass an order and at that juncture, needless to say, the Court has the jurisdiction to pass an interim order subject to the language employed in Order XLI Rule 5(3). It is clear as day that the High Court cannot admit a second appeal without examining whether it raises any substantial question of law for admission and thereafter, it is obliged to formulate the substantial question of law. Solely because the Court has the jurisdiction to pass an ex parte order, it does not empower it not to formulate the substantial question of law for the purpose of admission, defer the date of admission and pass an order of stay or grant an interim relief. That is not the scheme of C.P.C after its amendment in 1976 and that is not the tenor of precedents of this Court and it has been clearly so stated in Ram Phal (supra). Therefore, the High Court has rectified its mistake by vacating the order passed in I.A. No. 1/2015 and it is the correct approach adopted by the High Court. Thus, the impugned order is absolutely impregnable."

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Counsel for the petitioners further placed reliance upon 2016 (131) 460, Gandhi Nagar, Sahkari Awas Samiti through Secretary Rajendra Pras vs. Board of Revenue, U.P., Allahabad and Others, the paragraph nos. 8, 9 and 10 of the judgment are as follows:-

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"8. In the case of (Miss) Louiza D'souza v. John Claudis Andrews, Hon'ble the Supreme Court held that deciding the second appeal without framing substantial question of law by a court is contrary to the provisions as provided under Section 100 C.P.C and on the said ground set aside the order under challenge passed in second appeal and remanded the matter to decide afresh.

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9. Moreover, learned counsel for respondent has also not disputed the position of law that while deciding the second appeal, the appellate court should frame substantial question of law.

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10. Thus, keeping in view the abovesaid facts, the order dated 1.9.2015 passed by Board of Revenue is set aside and the matter is remanded to the said authority to decide afresh in view of the observations made hereinabove. The said exercise may be done expeditiously. With the above observations, writ petition is allowed."

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Counsel for the petitioner further placed reliance upon judgment passed in the case of Ravindra Kumar and Others vs. Board of Revenue, Lucknow and Others passed in Misc. Single No.350/2021 dated 3.2.2021.

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On the other hand, counsel for the contesting respondents submitted that the writ petition is not maintainable as the second appeal is pending before the courts below and petitioners can take whatever objections they want in the court below. He further submitted that petitioners have obtained the interim order from this Court and petitioners are themselves alienating the property in dispute, as such, petitioners are not entitled to any relief from this Court. He further submitted that the writ petition filed by the petitioners be dismissed. Counsel for the contesting respondents further submitted that in view of law laid down in 2012 (118) RD 9 (SC), State of Uttarakhand vs. Mohan Singh and Others, appeal before Board of Revenue would lie on a question of law. He further placed reliance upon paragraph nos. 26 & 27 of the aforementioned judgment which are as follows:-

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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.

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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.

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Counsel for the respondent further submitted that judgment of Raghavendra Swamy Mutt (supra) will not apply for second appeal before Board of Revenue rather the judgment of State of Uttarakhand (supra) will apply for deciding second appeal by Board of Revenue.

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Considered the submissions advanced by learned counsel for the parties and perused the records.

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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 contesting respondents was dismissed by the trial court as well as by the 1st appellate court and the second appeal filed by the contesting respondents has not been admitted and no substantial questions of law has been formulated by the Board of Revenue in his order dated 15.3.2022.

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Since Section 208(2) of the U.P. Revenue Code, 2006 itself provides that appellate court shall not entertain a second appeal unless it is satisfied that the case involves a substantial question of law, as such, Board of Revenue should entertain second appeal as provided under Section 208 of the U.P. Revenue Code, 2006, there should be proper admission of second appeal, framing substantial question of law, then interim order be passed in accordance with law, if ground exists for the same.

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Considering the ratio of law laid down by the Apex Court as well as by this Court as well as the provisions contained under Sections- 208 & 214 of the U.P. Revenue Code, 2006, Sections 100 & 101 of the Code of Civil Procedure, 1908, the impugned order dated 15.3.2022, passed by the Board of Revenue cannot be sustained and is hereby set aside. The matter is remanded back before the Board of Revenue to pass fresh orders on the admission of the second appeal, according to the ratio of law laid down by the Apex Court as well as by this Court, expeditiously, preferably within a period of 3 months from the date of production of the certified copy of the order.

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The writ petition stands allowed. No order as to costs.

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Order Date :- 15.9.2022 C.Prakash

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Digitally signed by CHANDRA PRAKASH Date: 2022.09.21 18:39:04 IST Reason: Location: High Court of Judicature at Allahabad

Bechu and 4 Others v. Board of Revenue and 12 Others

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Bechu and 4 Others v. Board of Revenue and 12 Others

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