Suchcha Singh Vs the Board of Revenue and 4 Others

Neutral Citation No. - 2024:AHC:164464

Court No. - 49

Case :- WRIT - B No. - 2691 of 2024

Petitioner :- Suchcha Singh Respondent :- The Board Of Revenue And 4 Others Counsel for Petitioner :- Ramendra Asthana

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Counsel for Respondent :- Arvind Kumar Srivastava,Bhaju Ram Pprasad Sharma,C.S.C.,Sher Bahadur Singh

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Hon'ble Saurabh Shyam Shamshery,J.

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Heard Sri Ramendra Asthana, learned counsel for petitioner and S/Sri O.P. Pandey and Arvind Kumar Srivastava, learned counsel for respondents.

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In the present case, contesting respondent-4 has filed a suit under Section 176 of U.P. Zamindari Abolition and Land Reforms Act, 1950, correspondingly under Section 116 of U.P. Revenue Code, 2006 for partition against petitioner. Petitioner has also filed a suit under same provisions.

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During proceedings, service upon petitioner (defendant therein) was deemed sufficient on basis of publication also and since no objection was filed on behalf of petitioner, therefore, on basis of report of Lekhpal, kurra was finalised and a preliminary decree was passed exparte on 09.01.2015.

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The petitioner filed an application for restoration on 28.05.2015 to recall the preliminary decree, however, it was dismissed for non prosecution on 07.03.2017. Admittedly, said order was not challenged further and has attained finality. Subsequent on basis of preliminary decree, final decree was also passed which was challenged at the instance of petitioner by way of first appeal before Court of Commissioner on following

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grounds -:

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“ आधधरअपपल

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1- यहककआददशवकडककजजककपरगनधधधकधरपप प वधयधदधरधपधररतकक गयपहहकवधधकवरदहहजजकककनरसतहजनदयजगयहह। 2- यहककअवरनयधयधलयकधआददशएकपकपयहहजजकककनरसतहजनद यजगयहह। 3- यहककअवरनयधयधलयदधरधआददशपधररतकरनदसदपपवरअपपलकतधर कजकजईसपचनध/सममननहपभदजधगयधहह। 4- यहककलदखपधलदधरधकदनधपक 23.03.2017 कजजजकपरददधधखल ककयदगयदहहवहकपरदकबजदकद अनपसधरनहहबनधयदगयदहह। 5- यहककअपपलकतधरकजकपरजपरकजईआपधतकधअवसरपदधननहह ककयधगयधहह। 6- यहककवधदअनतगरतआरधजपमदअपपलकतधरएवमकवपकपकध ½, ½ भधगहहअपपलकतधरदधरधवधदअनतगरतकववधकदतआरधजपकजसममधलतरप सदकयकरकद पतयदकगधटदपरआधदआधदभधगपरकधकबजवदधधखलहह धजसकजवधदपनदवधदपतममसवपकधरककयधगयधहह। 7- यहककलदखपधलदधरधजजकपरददधधखलककयदगयदहहउनककमधधलयत नहहकनकधलपगयपहह। 8- यह कक अवर नयधयधलय दधरध पशगत आरधजप कध कवभधजन धजस पकधरसदककयधगयधहहवहकवधधकवरदहह। 9- यहककअवरनयधयधलयकधआददशकनरसतहजकरअपपलसवपकधरहजनद यजगयहह।”

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The first appeal was dismissed vide order dated 05.03.2021 by Additional Commissioner (Administration), Bareilly Mandal, Bareilly and relevant part thereof is quoted below -:

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“ उभयपककद कवदधनअधधवकधगणकद दधरधपसतपततकरपकद पररपदकयमममदरद दधरध अपपल पतधवलप एवप आकदकपत आददश तथध अवर नयधयधलय कक पतधवलप कध समयक अवलजकन ककयध गयध। अवलजकन सद सपष हहकक अवरनयधयधलयकद समककवपकपकद दधरधवधदगसतआरधजपकद कवभधजन हदतपएकवधदयजधजतककयधगयध।अवरनयधयधलयकद दधरधवधददजरकरनद कद उपरधनतकवपकपपरतधमपलपपणर करधयदजधनदहदतपसममनपदकषतककयद गयद।अवरनयधयधलयककपतधवलपकद पपषसपखयधअ 5/1 पररककतसममन कद अवलजकनसदसपषहहककउकसममनअपपलकतधरकद पपतकजपधप करधकदयधगयध।उककद उपरधनतभपतधमपलपपणरनहजनदकद कधरणकवपकप परतधमपलपपणरकरधयदजधनदहदतपगजटपकधशनकरधयधगयधजजककअवर नयधयधलयककपतधवलपकद पपषसपखयधअ 18/2 पररककतहह।उककद उपरधनतभपकवपकपकद दधरधकजईआपधतपधपनहजनदकद कधरणअवर नयधयधलयकद दधरधकदनधपक 09-01-2015 कज-वधद-मम-पधरममभककडकक कद आददश पधररत कर कदयद गयद। आददश कदनधपक 09-01-2015 कद कवरद अपपलकतधर कद दधरध कदनधपक 28/29-05-2015 कज एक पपनसथधरपन पधथरनध पत पसतपत ककयध गयध जजकक अवर नयधयधलय कद दधरध उनकक अन प मसथकतममकदनधपक 07-03-2017 कजकनरसतकरकदयधगयध।उक सदसपषहहककअपपलकतधरकजअवरनयधयधलयकद समकअमनतमकडकक बनधयदजधनदकककधयरवधहपपचधलतहजनदककपपणरजधनकधरपथप।यहधपयह भपतथयउलदखनपयहहककअवरनयधयधलयकद समकवधदगसतआरधजपकद समबनध मम एक अनय वधद सपखयध 191/2012-13 सपचचध धसपह बनधम

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भजन धसपह आकद अनतगरत धधरध 176, उ०प० ज०कव० एवप भप०वय० अधधकनयम जजकक अपपलकतधर कद दधरध अवर नयधयधलय मम यजधजत ककयध गयधथध, भपकवचधरधधपनथधधजसदकककवपकपभजनधसपहकद पधथरनधपत कदनधपक 06-05-2016 परअवरनयधयधलयकद दधरधआददशकदनधपक 0605-2016 कद मधधयम सद समदककत कर वधद सपखयध 150/2012-13 भजनधसपहबनधमसपचचधधसपहआकदकजअकगमवधदबनधयधगयध।उककद उपरधनतकदतपयलदखपधलकद दधरधपधरममभककडकक कद आददशकदनधपक 0901-2015 कद मम कदनधपक 23-03-2017 कज दधधखल अन प धलन कपरद ककयदगयद।उककपररकद कवरदकजईआपधतपधपनहजनदपरहपउक कपररकजअवरनयधयधलयकद दधरधआकदकपतआददशकद मधधयमसदसवपकधर करतदहहएएवपअपपलकतधरकद दधरधकजईपहरवपनहहककयदजधनदकद कधरणहप अवरनयधयधलयकद दधरधवधदममआकदकपतआददशपधररतककयधगयधहह। अनयथध भप अपपलकतधर कद दधरध अपपल पतधवलप पर ऐसध कजई सधकय पसतपतनहहककयधगयधहहधजससदककअवरनयधयधलयकद आकदकपतआददश ममकजईकवधधकअकनयकमततधपतपतहजतपहज।अततयहअपपलबलहपनहह औरकनरसतककयदजधनदयजगयहह।”

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6. The petitioner being further aggrieved filed a second appeal before Board of Revenue wherein following two questions of law were framed -:

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“1- Whether any notice or summon or publication or opportunity of hearing and led the evidence has been provided to the appellant after passing preliminary degree against the submission of Kurra submitted by the area lekhpal?

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2- Whether the lots, which has been prepared and submitted by the area lekhpal is in accordance with the valuation possession of the parties concerned?”

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The Second appeal was thereafter dismissed vide order dated 04.06.2024 and relevant part thereof is quoted below -:

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“ महनमउभयपककद कवदधनअधधवकधओपकजसपनधएवपपतधवलपकधअवलजकन ककयध। पतधवलपकद अवलजकनसदकवकदतहजतधहहककपरपकणनयधयधलयकजमम यजधजतवधदकद ददरधनअपपलकतधरनजकटसपदकषतककगईजजककउनकद पपत कद दधरध पधप कक गई। अपपलकतधर नजकटस पधप हजनद कद उपरधनत भप नयधयधलयममउपमसथतनहहआयद।तदजपरधनतपधरममभककडकककधआददश कदनधपक 09.01.2015 पधररतककयधगयधधजसकद कवरदअपपलकतधरदधरध पपनसथधरपनधपधथरनधपतकदनधपक 28.05.2015 पसतपतककयधगयधधजसद करनद कद उपरधनत अपपलकतधर कद कवदधन अधधवकध नयधयधलय मम पसतपत उपमसथतनहहआयदतद प रधनतअपपलकतधरदधरधपसतपतपपनरसथधपनधपधथरनध पतअदमपहरवपममआददशकदनधपक 07.03.2017 कजकनरसतहजगयध। धजसकद कवरद अपपलकतधर दधरध कजई पधथरनध पत पसतपत नहह ककयध। तदजपरधनतपरपकणनयधयधलयदधरधअपकतमकडकककधआददशपधररतककयध। धजसकद कवरद अपपलकतधर नद आयपक नयधयधलय मम अपपल यजधजक कक

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धजसद अपर आयपक नद अपनद आददश कदनधपक 05.03.2021 कद दधरध कनरसतकरकजईतपकटनहहककहह।अपपलकतधरकजपरपकणनयधयधलयमम सपनवधईकधपयधरपअवसरउपलबधथध।अपपलकतधरदधरधयहकथनककयध जधनधकककपरधरकबजदकद आधधरपरऔरमधधलयतकद अनपसधरनहहबनधयध गयधहह।सवपकधरनहहहह।लदखपधलदधरधबनधयधगयधकपरधरमधधलयतऔर कबजद कद आधधरपरबनधयधगयधहह।अततउपरजकसधभपतकवधधकपश नकधरधतमकरपसदकनसतधररतककयदजधतदहह।कदतपयअपपलबलहपनएवप सधरहपनहजनदकद कधरणकनसतरककयदजधनदयजगयहह। उपरजककववदचनधकद आधधरपरपसतपतकदतपयअपपलबलहपनएवपसधरहपन हजनदकद कधरणकनरसतककजधतपहह।अपपलकद लमबनकधलममयधजकजई सथगनआददशपधररतककयधगयधहहतजउसदइसआददशसदकनरसतमधनध जधयदगध।परपकणनयधयधलयकद अकभलदखवधपसककयदजधयद।वधदआवशयक पहरवपकधयरवधहपपतधवलपदधधखलदफतरहज।”

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Aforesaid orders are impugned in this petition.

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Learned counsel for petitioner has vehemently submitted that service upon petitioner was not complete. Procedure prior to order of publication was not concluded and neither in first appeal nor in second appeal, such issue was considered effectively, however, when confronted by learned counsel for respondents with a factual aspect that an application to recall preliminary decree was also dismissed for want of prosecution which was not challenged further and thereafter, preliminary decree was passed which was only challenged subsequently, therefore, contention in regard to ex-parte order would not be available, the learned counsel for petitioner has not much pressed the said issue.

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Learned counsel further submits that admittedly in first appeal, various grounds were raised including on merit also, however, the First Appellate Court has rejected the appeal mainly on ground that service was sufficient upon petitioner and since no objections were filed, therefore, no interference could be caused. No discussion was made on merit of case i.e. objections raised in the form of grounds in memo of first appeal.

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Learned counsel also submits that though questions of law were framed in second appeal but consideration of second question of law which is referred above was

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vaguely considered that kurra was prepared by Lekhpal on basis of possession without any further deliberations.

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Above submissions are opposed by learned counsel for respondents that first appeal and second appeal are to be decided in terms of relevant provisions of U.P. Revenue Code Manual. Service upon petitioner was sufficient since in his absence, notice was served upon an elder member of his family. No material has been brought on record that kurra was wrongly prepared. Division between parties who are brothers were based on their respective actual possession.

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Heard learned counsel for parties and perused the record.

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As referred above, there is no much substance in argument of learned counsel for petitioner so far as dispute of service is concerned since he has not challenged the order on application to recall the preliminary decree which was dismissed in default. However, so far as submission in regard to consideration by First Appellate Court has substance since First Appellate Court has mainly considered the case in regard to service upon petitioner which was considered sufficient and in later part of impugned order, only on a ground that no objections were filed by petitioner and matter was proceeded ex-parte and appeal was rejected, therefore, First Appellate Court has not considered specific grounds raised in memo of appeal.

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In this regard, Court takes note of a judgment of Supreme Court in Malluru Mallappa (Dead) through LRs vs. Kuruvathappa and others, (2020) 4 SCC 313 wherein procedure for considering appeal by First Appellate Court was considered and relevant para of it is quoted below -:

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“ 18. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points

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for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order 41 Rule 31 and nonobservance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by the trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice.”

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Grounds mentioned in memo of appeal as well as relevant part of impugned order passed by First Appellate Court as already referred in preceding paragraph and the Court is of considered opinion that neither point of determination was framed nor the grounds raised in memo of appeal, so far as challenge to decree on merit was considered.

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Court also takes note of order passed in second appeal by Board of Revenue though questions of law were framed on merit also but in a very vague manner has decided said questions of law without even taking note that First Appellate Court has not even decided the said issue on merit, which is also an error.

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Argument of learned counsel for respondents are liable to be rejected since as referred above, procedure prescribed for purpose of first appeal and second appeal have not been substantially followed as well as argument on basis of U.P. Revenue Code Manual will also not be helpful.

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In aforesaid circumstances, Court is of considered opinion that order dated 04.06.2024 passed by Board of Revenue, U.P. Prayagraj in Case No. SA/761/2021 (Succha Singh vs. State of U.P. and others) as well as order dated 05.03.2021 passed by Additional

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Commissioner (J), Bareilly Division, Bareilly in Appeal No. 1599 of 2017 (Succha Singh vs. Bhajan Singh) are hereby set aside and matter is remitted back to Additional Commissioner (J), Bareilly Division, Bareilly to decide first appeal afresh after taking note of judgment of Malluru Mallappa (supra), considering submissions and grounds raised in memo of appeal, expeditiously, preferably within six months after hearing both parties after hearing rival parties.

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Petition stands disposed of with above observations. Order Date :- 16.10.2024 N. Sinha

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Digitally signed by :- NIRMAL SINHA High Court of Judicature at Allahabad

Suchcha Singh v. the Board of Revenue and 4 Others

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