Court No. - 36
Case :- WRIT - B No. - 3170 of 2018 Petitioner :- Shri Mohammad Noman Respondent :- Board Of Revenue, Allahabad And 17 Others Counsel for Petitioner :- Sheo Ram Singh,Ramesh Chandra Singh Counsel for Respondent :- C.S.C.,Diwakar Singh,Himanshu Pandey,Yogesh Krishna Mishra
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioner, Sri Himanshu Pandey, learned Advocate has put in appearance on behalf of the contesting respondent no. 3. and Sri Diwakar Singh, learned counsel for respondent no. 17.
The order passed by the First Appellate court dated 19.4.2017 and the order dated 15.11.2017 passed by the Second Appellate court are challenged on the ground that the First Appellate court had dismissed the suit filed by the petitioner under Section 229-B of U.P.Z.A.&L.R. Act on the ground that no documentary evidence has been filed by the petitioner/plaintiff in the said suit and that the Court had erred in passing the judgment and decree dated 4.7.2013 solely on the basis of statement of the plaintiff therein.
The trial court has decreed the suit holding that the adverse possession of the petitioner/plaintiff therein was admitted by the respondents inasmuch as they themselves had filed a suit for eviction under Section 209 of U.P.Z.A.&L.R. Act.
Learned counsel for the contesting respondent no. 3, on the other hand, defends the orders impugned with the plea that the petitioner herein has not been able to establish his adverse possession in the declaratory suit filed with regard to the disputed property. The trial court has committed illegality in decreeing the suit merely on the ground that filing of the eviction suit by the contesting respondent under Section 209 of U.P.Z.A.&L.R. Act would mean that the physical possession of the petitioner/plaintiff over the disputed property was admitted.
Dealing with this submission of learned counsel for the parties, it is suffice to note that the First Appellate court in the operative portion of the judgment and order dated 19.4.2017 while allowing the appeal filed by respondent no. 3 and others has set aside the judgment and decree dated 4.7.2013 passed by the trial court and has remitted the records of the trial courts alongwith certified copy of the Appellate order.
Lastly, it has observed that the records of the first appeal shall be consigned to the record room after the required procedure is completed. The second Appellate Court has dismissed the second Appeal summarily.
In the opinion of the Court, from a careful reading of the operative portion of the judgment and order dated 19.4.2017 passed by the First Appellate court, it is clear that the decree passed by the trial court in the declaratory suit under Section 229-B has been set aside and the suit stands revived. The first appellate court has not decided the suit. The trial court is now required to decide the declaratory suit on merits afresh after considering the evidence on record.
It is further noteworthy that an eviction suit filed by the contesting respondent no. 3 under Section 209 of U.P.Z.A.&L.R. Act is also pending before the trial court.
It would, therefore, be proper that both the suits be tagged together and the trial court shall decide the same after framing issues and appreciation of evidence adduced by the contesting parties.
In view of the above observations, this Court does not find any justification to interfere in the orders passed by the First Appellate court and the Second Appellate court.
The writ petition is, accordingly, disposed of with the direction to the trial court to club both the suits filed by the contesting parties as noted above and proceed to decide the same in an expeditious manner.
An endeavour shall be made to take a final decision, expeditiously, preferably within a period of eight months from the date of submission of certified copy of this order after giving due opportunity to all concerned. Noticing the fact that the eviction suit was filed as early as in the order 1974, the trial court is directed not to grant unnecessary adjournment to either of the parties.
It goes without saying that the trial court shall decide the matter independently without being influenced by any of the observations made by the appellate courts.
Order Date :- 27.3.2018 Brijesh