1. Heard learned counsel for the petitioner as well as the counsel for respondent Nos. 2 and 3.
2. The dispute between the parties in the present writ petition as well as in the revenue proceedings from which the present writ petition arises relates to Plot Nos. 1473A, 1594 and 1785 (hereinafter referred to as, 'disputed plots'). The facts of the case as evident from the records are that in the revenue records the petitioner and Paras Nath were recorded as co-tenure holders of the disputed plots. Respondent No. 2 is the widow of Paras Nath and respondent No. 3 is the daughter of Paras Nath. The petitioner filed Case No. 109/192 under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') on 18.2.2003 praying to be declared as the sole tenure holder of the disputed plots claiming that in an oral family settlement Paras Nath had relinquished his claim over the disputed plots and as a result of the said family settlement, the petitioner was in possession of the disputed plots as its sole tenure holder. It is further alleged by the petitioner that a memorandum of the aforesaid family settlement was executed by the petitioner and Paras Nath on 28.10.2002. Case No. 109/192 filed by the petitioner was allowed by the Deputy District Magistrate, Hata, District-Kushi Nagar vide his judgement and decree dated 17.7.2006. Paras Nath died on 12.8.2006. Respondent Nos. 2 and 3 filed Appeal Nos. 5 and 1/k-2006 against the judgement and decree dated 17.7.2006 passed by the trial court. The claim of respondent No. 2 was as a widow of Paras Nath and the claim of respondent No. 3 was based on a sale-deed dated 10.1.2003 executed by Paras Nath in her favour regarding Plot Nos. 1785 and 1594. The said appeals were filed on 20.9.2006 and 26.10.2006. The aforesaid appeals were admitted for hearing by the appellate court vide its orders dated 5.10.2006 and 6.12.2006.
3. Subsequently, the respondent Nos. 2 and 3 field applications dated 7.6.2007 in Appeal Nos. 5 of 2006 and 1/k-2006 praying for permission to withdraw the aforesaid appeals because of certain formal defects in the appeals and for permission to file fresh appeals against the decree passed by the trial court. While the said applications were pending, the respondents filed Revision No. 52/2006-07 before the Board of Revenue, U.P. at Allahabad, i.e., respondent No. 1 (hereinafter referred to as, 'Board of Revenue') challenging the decree dated 17.7.2006 passed by the trial court. Revision Nos. 4/2006-07 and 26/2006-07 were filed by the petitioner before the Board of Revenue challenging the different orders passed by the appellate court allowing the delay condonation applications filed by respondent Nos. 2 and 3 and also the different orders admitting, for hearing, the appeals filed by respondent Nos. 2 and 3. Subsequently, vide its orders dated 18.12.2007 passed in Appeal No. 1/k-2006 and Appeal No. 5 of 2006 the appellate court allowed the application dated 7.6.2007 filed by the petitioner and dismissed as withdrawn Appeal Nos. 5 of 2006 and 1/k-2006. The Board of Revenue vide its order dated 11.12.2014 allowed Revision No. 52/2006-07 filed by respondent Nos. 2 and 3 and set aside the decree dated 17.7.2006 passed by the trial court and consequently dismissed Revision Nos. 4/2006-07 and 26/2006-07 as infructuous. Through its order dated 11.12.2014, the Board of Revenue also dismissed Case No. 109/192 instituted by the petitioner. The order dated 11.12.2014 passed by the Board of Revenue has been challenged in the present writ petition.
4. It was argued by the counsel for the petitioner that Revision No 52/2006-07 filed by respondent Nos. 2 and 3 was not maintainable as they had already filed an appeal against the decree passed by the trial court which at the time of filing the revision was pending before the appellate court, and therefore, the impugned order dated 11.12.2014 passed by the Board of Revenue was without jurisdiction. It was argued that for the aforesaid reasons, the order dated 11.12.2014 passed by the Board of Revenue is contrary to law and is liable to be set aside.
5. I have considered the submission of the counsel for the petitioner.
6. It is true that under Section 333(1) of the Act, 1950 a revision before the Board of Revenue would lie only in cases where no appeal has been provided or where an appeal lies but has not been preferred. In the present case, respondent Nos. 2 and 3 filed Revision No. 52/2006-07 on 14.6.2007, i.e., after they had filed withdrawal applications before the appellate court praying for permission to withdraw the appeals filed by them against the decree of the trial court. The withdrawal applications were filed by respondent Nos. 2 and 3 on 7.6.2007. While the revision filed before the Board of Revenue was pending, the withdrawal applications filed by respondent Nos. 2 and 3 were allowed by the appellate court vide its order dated 18.12.2007. The effect of withdrawal of the appeal was that the parties were left in the same position as if no appeal had been filed against the decree of the trial court (Parmanand Vs. Prescribed Authority and Others, 2001 3 AWC 2302). In view of the aforesaid, the proceedings before the Board of Revenue can not be held to be without jurisdiction and there is no jurisdictional error in the impugned order dated 11.12.2014 passed by the Board of Revenue.
7. Apart from the aforesaid, a reading of the judgement dated 17.7.2006 passed by the trial court decreeing Case No. 109/192 instituted by the petitioner shows that in the aforesaid case, no issues were framed and no findings were recorded by the trial court regarding the family settlement pleaded by the petitioner. A finding on the aforesaid issue was necessary even if the suit proceeded ex-parte either against respondent Nos. 2 and 3 or against Paras Nath inasmuch as the family settlement pleaded by the petitioner was the basis of his claim in Case No. 109/192. Further, a reading of the order dated 11.12.2014 passed by the Board of Revenue shows that in Case No. 109/192 notices in accordance with law were not served on Paras Nath and the publication of the notice was not in accordance with law. Findings to that effect recorded by the Board of Revenue in the order dated 11.12.2014 have not been challenged in the present writ petition.
8. In view of the aforesaid the trial court had acted with material irregularity in decreeing Case No 109/192. The judgement and decree dated 17.7.2006 passed by the trial court was evidently illegal and, therefore, even if there is some illegality in the order dated 11.12.2014 passed by the Board of Revenue, the same can not be a ground for interference under Article 226 of the Constitution of India as a Writ Court would not interfere to set aside one illegal order only to restore another illegal order. The writ petition, so far as it challenges the order dated 11.12.2014 passed by the Board of Revenue whereby it has set aside the decree dated 17.7.2006 passed by the trial court is rejected.
9. However, it is evident from a reading of the order dated 11.12.2014 passed by the Board of Revenue that through its aforesaid order, the Board of Revenue has also dismissed Case No. 109/192 instituted by the petitioner. The orders have been passed in a revision filed under Section 333 of the Act, 1950. Evidently, the order dated 11.12.2014 so far as it dismisses Case No. 109/192 passed by the Board of Revenue is without jurisdiction. The petitioner had a right that his case as pleaded in Case No. 109/192 be considered in accordance with law and findings be recorded by the trial court on the facts pleaded by him. In the circumstances, it was appropriate for the Board of Revenue to have remanded back the matter to the trial court to pass fresh orders in accordance with law after giving the parties an opportunity of hearing and an opportunity to lead their evidence after setting aside the judgement and decree dated 17.7.2006 passed by the trial court. For the aforesaid reasons, the order dated 11.12.2014 passed by the Board of Revenue only so far as it dismisses Case No. 109/192 is set aside.
10. The matter is remanded back to the Deputy District Magistrate, Hata, District-Kushi Nagar to decide Case No. 109/192 in accordance with law within a period of one year from the date a certified copy of this order is produced before him after giving the petitioner as well as respondent Nos. 2 and 3 or any other person claiming through them an opportunity to lead their evidence and after giving an opportunity of hearing to the said parties. It is clarified that in order to decide the case within the time limit fixed by this Court, the Deputy District Magistrate, Hata, District-Kushi Nagar shall be at liberty to hold day to day hearing in the case.
11. With the aforesaid directions, the writ petition is partly allowed.
Order Date :- 18.12.2019 Anurag/-