This writ petition questions the order of the Board of Revenue dated 30.8.2002 rejecting the petitioner's plea for impleadment in a Second Appeal which has already been disposed of under a compromise decree on 21.4.1993.
The back ground in which this application came to be rejected is that one Smt. Shivrani came to be recorded as the tenure holder of the land in dispute under a will executed by one Komil. Her name was mutated on 1.6.1984. Against the mutation of her name an appeal came to be filed which was allowed setting aside the mutation order and a revision filed by Shivrani also came to be dismissed on 28.5.85.
Having failed before the mutation authorities Smt. Shivrani filed an original suit under Section 229-B of the U.P.Z.A. & L.R. Act for a declaration in her favour in respect to the title of the land. The suit came to be dismissed on 10.12.1987. She filed a First Appeal against the same before the learned Commissioner which was dismissed on 29.4.1988 whereupon she invoked the second appellate jurisdiction of the Board by filing an appeal on 1.7.1988.
The defendant in the suit Balla who was a respondent in the Second Appeal executed a sale deed on 3.11.1989 in favour of the present petitioner and his brother the respondent no.8 herein.
The petitioner and his brother filed an application for impleadment on 6.9.91 in the Second Appeal contending that rights have accrued in their favour and therefore in view of the provisions of Section 19(b) of the Specific Relief Act read with Section 52 of the Transfer of Property Act, they were proper and necessary parties.
A compromise was entered into between the original plaintiff and the defendant on 19.3.93. The said compromise was duly presented to the counsel of the respective parties and on the basis whereof the Second Appeal came to be disposed of on 21.4.93. A copy of the compromise decree before the Board of Revenue is Annexure 7 to the petition.
The petitioner and the respondent no.8 who were the vendees assailed the judgment and order of the Board of Revenue on the basis of a compromise by filing Writ Petition No. 17361 of 1993. They took a plea that they had filed an impleadment application during the pendency of the appeal and without disposing of the same, the Board of Revenue committed an error in proceeding to pass an order on the basis of the compromise without disposing of the impleadment application.
The writ petition was disposed of vide judgment dated 20.8.2001 without interfering with the judgment and decree dated 21.4.1993 by the following order;
"I have considered the submissions made by learned counsel for the parties.
It is not disputed that the appeal before the respondent no.1 was decided on the basis of the compromise arrived between the parties. It is also not disputed that the application filed by the petitioners for their impleadment in the second appeal remained pending and was not disposed of finally before the appeal was decided in terms of the compromise.
In view of the above, facts, if petitioners felt aggrieved by the order passed by the respondent no.1, the remedy for them was before the Board of Revenue and not before this court under Article 226 of the Constitution of India. The petitioner can still approach the Board of Revenue and can apply for disposal of the application for impleadment filed by them if the same has not been dispose of. If such an application is filed by the petitioners within three weeks from today, the same shall be disposed of after following the procedure prescribed under the law and after hearing the parties within one month from the date of application is filed along with a certified copy of this order.
With these observations and directions, this petition stands finally disposed off."
The Board of Revenue thereafter precoded to reject the impleadment application on the ground that the petitioner and the respondent no.8 did not file any application themselves to be impleaded during the pendency of the Second Appeal. The second ground was that the plaintiff in the suit Smt. Shivrani undertook to refund the amount to the vendees of the defendants the present petitioner and the respondent no.8. In this view of the matter the petitioner and his brother were not found to be proper and necessary parties and their impleadment application was rejected vide order dated 23.3.2001. Aggrieved by the said rejection of the impleadment the petitioner thereafter filed Writ Petition No. 16179 of 2001. The same was partly allowed on 13.5.2002 setting aside of the order of the Board of Revenue dated 23.2.2002 with a direction that the Board shall proceed to decide the matter afresh in the light of the fact that the order dated 23.3.2002 proceeded on an erroneous assumption that the petitioner had not filed any impleadment application during the pendency of the Second Appeal.
The operative part of the order is quoted below:
"i{kksa dks ;g ekU; gS rFkk bl U;k;ky; ds iqjkus fu.kZ; tks fd ;kfpdk la[;k 17361 o"kZ 1993 esa miyC/k gS mlesa Hkh fy[kk gS fd ;kph us ,d vkosnu i= fnukad 6&9&91 dks i{k cukus ds fy;s fn;k FkkA ;g vkosnu i= f}rh; vihy ds nkSjku fn;k x;k FkkA blfy;s ;kph ds }kjk fn;k x;k vkosnu i= fnukad 2&8&2001 bl ckr ij [kkfjt ugha fd;k tk ldrk fd mUgksusa f}rh; vihy ds nkSjku dksbZ Hkh vkosnu i= ughsa fn;kA vr% jktLo ifj"kn dk fu.kZ; fnukad 23&3&2002 xyr gS vkSj bls vikLr fd;k tkrk gS rFkk og ;kph }kjk fn;s x;s vkosnu i= ij iqu% viuk fu.kZ; nsaSA i{k jktLo ifj"kn ds le{k fnukad 17&6&2002 dks mifLFkr gksaA jktLo ifj"kn viuk fu.kZ; vfr 'kh?kz ;fn gks lds rks 3 ekg ds vUnj nsaA^^ Sri Ramendra Asthana learned counsel for the petitioner submits that in view of these two orders of the High Court the Board of Revenue ought to have proceeded to accept the impleadment of the petitioner and then to decide the case once again.
The impugned order passed by the Board of Revenue categorically records that the compromise application clearly mentions the sale transaction in favour of the petitioner and the respondent no.8 and that Smt. Shivrani had undertaken the refund of the amount of the sale consideration to them. This compromise was accepted and the appeal was decided in terms of the said compromise. The Board of Revenue further observed that the transaction was made during the pendency of the second appeal without permission of the Court and therefore it would be subject to the provisions of Section 52 of the Transfer of Property Act. The Board of Revenue therefore was had knowledge of the said transaction and it is in this view of the matter that the consideration money had to be refunded to the vendees. The petitioner and the respondent no.8 kept quiet for almost two years and therefore, the Board of Revenue came to the conclusion that the vendors had failed to make out any case for impleadment.
In the opinion the Court there is no error in the order of the Board of Revenue inasmuch as the doctrine of acquiescence will squarely cover this case. The petitioner and the respondent no.8 stepped into the shoes of Balla, and Balla having compromised the matter, no better title could pass on either to the petitioner or the respondent no.8. If the petitioner is aggrieved by the conduct of Balla, the petitioner can sue him if permissible in law. The judgment and decree of the Board of Revenue on the basis of a compromise having not been set aside by this Court on the earlier occasion, the only inference that can be drawn is that the said judgment and decree remains intact. The petitioner cannot contend that Balla had extinguished all rights to contest the second appeal. He had every authority to contest the same or to enter into a compromise. If the compromise was detrimental to the petitioner then the petitioner could have pressed for setting aside the order of the Board in the first writ petition that came to be disposed of on 20.8.2011. If the petitioner was suffering due to the said judgment he could have approached the higher court. The petitioner cannot now be permitted to raise any challenge to the judgment and decree dated 21.4.93.
Accordingly none of the grounds raised in the writ petition come to the aid of the petitioner. The writ petition lacks merit and is accordingly dismissed.
Dt. 26.9.2011 mna