Court No. - 18
Case :- WRIT - B No. - 1839 of 2019 Petitioner :- Jawahar Lal And 4 Others Respondent :- Board Of Revenue And 8 Others Counsel for Petitioner :- Ashok Kumar Patel,Rajnarayn Singh Yadav Counsel for Respondent :- C.S.C.,Arun Kumar,Diwakar Singh
Hon'ble J.J. Munir,J.
It is stated by the learned counsel for the petitioner and respondent no. 4, as also by the learned counsel for the Gaon Sabha, Sri Diwakar Singh that the issue in this petition is confined between the petitioners and respondent no. 4.
Learned counsel for the petitioner is permitted to delete respondent Nos. 5, 6, 7 and 8 from the array, who are said to be vendors of the suit property and their names already stand mutated out of the revenue records.
Heard Sri Rajnarayan Singh Yadav, learned counsel for the petitioners, Sri Arun Kumar, learned counsel for the respondent and Sri Diwakar Singh, learned counsel appearing for respondent no. 9, Gaon Sabha.
At the outset, Sri Arun Kumar, learned counsel for respondent no.4 as well as Sri Diwakar Singh, learned counsel appearing for the Gaon Sabha, have stated that they do not want to file counter affidavits on behalf of the respondent nos. 4 and 9. All learned counsel consent that this petition may be heard at once and decided.
Admit.
Notice returnable forthwith.
This petition arises from a suit filed for partition of Khata No.202, comprising Gata Nos. 636 and 637, admeasuing a total of 0.9200 hectares, situate in Village Gopalpur, @ Laludih, Pargana Nababganj, Tehsil Soraon, District Allahabad (Prayagraj). The suit was brought by respondent No.4 against the petitioner no.5 and the predecessors-in-title of petitioners nos. 1 to 4, arrayed as the two defendants. The plaintiff claimed a half share in the Khata on the basis of a sale deed and acknowledged 1/4th share of the two defendants. The suit aforesaid that was numbered as Suit No.274 of 2011 on the file of the Sub-Divisional Officer, Soraon, Allahabad. The suit aforesaid had a date fixed for hearing on 28.07.2012. A perusal of the certified copy of the order-sheet shows that on 28.07.2012, there was strike by the members of the Bar on account of which the case was adjourned to 06.10.2012. Surprisingly, much before that date, on 09.08.2012 the suit was taken up for hearing, without there being any order advancing the date from 06.10.2012, and on that date without hearing the defendants, a preliminary decree was passed. An averment to this effect has been made specifically in paragraph-19 of the writ petition. This preliminary decree was passed by Sri Shatrughan Vaishya, the then Sub-Divisional Officer, Soraon, District Allahabad. On 06.10.2012, when the defendants went to attend the date fixed, they came to know, much to their surprise, that the suit had already been disposed of on 09.08.2012 with a preliminary decree passed. Accordingly, they made an application dated 11.10.2012 to the effect that the preliminary decree was one made ex parte and prayed that the same be set aside, affording the defendant-petitioners an opportunity of hearing. The application was supported by an affidavit. The said application came to be rejected on 31.12.2013 by the Sub- Divisional Officer, Soraon, District Allahabad, recording that they are prima facie on a feeble foot as the earlier date fixed in the case, that is, 06.10.2012 was advanced on an expedite application to 09.08.2012, when the preliminary decree was passed. It is, however, recorded that the Restoration Application was heard in the absence of the defendant-applicant, and again on hearing the plaintiff alone. This fact has been denied by the petitioner. However, the application for restoration has been rejected on ground that in the Restoration Application seeking to set aside the preliminary decree passed on 09.08.2012, there is nothing said about how the preliminary decree is bad on merits. All that is said is that the date of the suit already fixed was advanced without notice to the defendants. With these remarks, the restoration application has been turned down by the Sub-Divisional Officer.
It is brought to the notice of this Court that while rejecting the Restoration Application, the Sub-Divisional Officer also passed an order to draw up a final decree, accepting the proposal of the Lekhpal of 12.10.2012 for draw of lots. In terms of the order dated 31.10.2013, which is a composite order, rejecting the petitioner's Restoration Application and ordering a final decree to be drawn up, a final decree was drawn up on 07.04.2014. The defendant-petitioners aggrieved by the preliminary decree, the final decree and the order dated 31.12.2013 rejecting the application to set aside the preliminary decree, filed a composite appeal under Section 331 of U.P. Zamindari Abolition and Land Reforms Act. The appeal came up before the Additional Commissioner (I), Allahabad Division Allahabad in Appeal No.C-20140200001313 of 2014. The Additional Commissioner, appears to have gone through the record and written an order that can hardly even be called making a short shrift of it, dismissing the said appeal. The order of the Additional Commissioner does not conform to any of the requirements of a judgment in an appeal from an original decree. There is absolutely no adherence ex facie to the provisions of Order XLI Rule 31 CPC. Not only the points of determination have not been framed by the Additional Commissioner, but no findings have been recorded with reference to the evidence on record. The order reads like an administrative order, disposing of some application in an administrative matter. It lacks the essential trappings of a judgment of a Court, seized of an appeal from a decree, passed in an original suit. The petitioner went up in appeal from the appellate decree of the Commissioner vide Second Appeal No.466 of 2018 to the Board of Revenue, U.P. at Allahabad. The Board has done the most by writing its judgment, doing a recount of all the proceedings before the two Courts below. It has framed a substantial question of law that is to the following effect (in Hindi vernacular) :
"क्यया अवर न्ययाययालययों नने अपनने ननररय पतयावलली पर उपलब्ध सयाक्ष्य कक नववनेचनया कने उपरयारांत नवधध दयारया प्रनतपयानदित धसदयारांततो कने अननुकक ल पयाररत नकयने हह ?"
The said question hardly qualifies for a question of law, let alone a substantial question of law. Be that as it may, the Board has proceeded to approve the decrees, both preliminary and final, passed by the two Courts below, primarily on the premise that the petitioner has not disputed the fact that the determination of shares done is in any way contrary to rights of parties. From a perusal of the memorandum of appeal, it is evident from ground G and J that there is a substantial dispute raised by the defendants, at least with regard to the Arazi numbers which too had to be included in the partition. The manner in which the Trial Court and the Lower Appellate Court have dealt with the suit is something unknown to law. Moreover, so far as the Trial Court is concerned, the proceedings before it seem to be beset with some kind of a fraud where the date already fixed was advanced, without information or intimation to the defendants. The efforts to seek restoration were also smothered behind an overshadowing consideration that shares have been rightly determined.
This Court does not know whether the shares have been rightly determined or not. This Court is sure that the Trial Court , at the inception of proceedings, has proceeded in a manner that has rendered the entire proceedings ex facie vitiated.
Looking to the entire facts and circumstances, this Court is of clear opinion that the impugned judgments, and decrees deserve to be set aside with a remand to the Trial Court to redetermine the suit on merits after hearing all parties.
Accordingly, this petition succeeds and is allowed. The impugned judgment and decree dated 09.08.2012 passed in Suit No. 274 of 2011, as well as the impugned order dated 07.04.2014 rejecting the petitioner's restoration application, all passed by the Sub Divisional Magistrate, Soraon, District Prayagraj, the judgment and decree dated 24.01.2018, passed by the Additional Commissioner, Ist, Allahabad in Appeal No. C- 20140200001313, and the judgment and decree dated 09.04.2019, passed by the Board of Revenue, U.P. at Allahabad in Second Appeal No. 466 of 2018 are hereby quashed.
The Trial Court is ordered to try the suit de novo in accordance with law after hearing all parties to the suit and decide the same within a period of eight months next. The petitioners, who are defendants to the suit and respondent no. 4 here, who is the plaintiff shall appear before the Trial Court on 5th August, 2019. There shall be no order as to costs.
Order Date :- 25.7.2019 BKM/-