Heard Sri A.K. Singh learned counsel for the petitioner and Sri Triveni Shankar for the respondent Nos. 4 to 8. The respondent Nos. 9 to 13 were put to notice but they have not responded.
The background of the dispute is that the respondents who were the plaintiffs in a suit under Section 229-B of the U.P. Z.A. & L.R. Act, 1950 sought declaration in respect of the land in dispute. The suit came to be dismissed vide judgment and decree dated 26.8.2003. A first appeal was filed against the same that also met the same fate vide judgment of the learned Additional Commissioner, Varanasi dated 16.6.2005. Aggrieved the respondents preferred a second appeal before the Board of Revenue and the same has been allowed and the matter has been remitted to the trial court vide judgment and order dated 8th January, 2007.
Aggrieved the defendant-petitioner has approached this Court assailing the order of the Board of Revenue aforesaid contending that the impugned order is not in conformity with law, inasmuch as, the Board of Revenue without there being any possible or available substantial question of law has erroneously allowed the second appeal. Hence, the same deserves to be set aside.
Learned counsel for the petitioner has taken the court through the judgment of the Board of Revenue and has urged that the ground on which the second appeal has been allowed is absolutely imaginary and the recital contained therein is unsupportable in law. It is submitted that the Board has come to the conclusion that according to the plaintiffs there was some evidence available, and had that evidence been filed before the trial court, the plaintiffs could have succeeded in proving their case. It is on the said ground that the Board has found the substantial questions of law framed by the appellant to be a reason for allowing the second appeal. Learned counsel submits that such an approach of the Board of Revenue is contrary to the decisions of the apex court as also the interpretation of Section 100 of C.P.C. given from time to time and reliance has been placed on three judgements namely, K.D. Kadam Vs. Savitribai Sopan Gujar & others, AIR 1999 Supreme Court Pg. 2213, K.K. Kannan Vs. Koolivathukkal Karikkan Mandi & others, (2010) 2 SCC 239 and the decision in the case of Azrath Bivi & another Vs. Chinnathambi, 2010 (109) RD 484.
Sri Triveni Shankar in response has invited the attention of the Court to the memo of the second appeal appended as Annexure 6 to the petition and the substantial questions of law that were framed before the Board of Revenue. With the aid thereof, he submits that these substantial questions of law did arise and the Board of Revenue vide order dated 19th September, 2005 accepted the same and admitted the second appeal whereafter the judgment has been delivered, and as such it cannot be said that no such substantial question of law had arisen. He therefore defends the order and prays that in the absence of any infirmity in the same this Court should not interfere with the order dated 8.1.2007.
I have also heard the learned Standing Counsel and having heard learned counsel for the parties, in the opinion of the court, the Board of Revenue has evolved a strange method of reasoning for treating all the questions of law framed by the appellant to have arisen for decision. What is more strange is the reasoning given by the Board of Revenue that there is a doubt in the mind of the Board that if the evidence which was being indicated by the appellants, had been adduced before the trial court, the same would have come to the aid of the appellant and in view of this possibility of the availability of the evidence and its effect, the appeal deserves to be allowed in the interest of justice.
In the opinion of the Court such an approach nowhere even remotely conforms to the principles of Section 100 C.P.C. and to that extent the contention raised on behalf of the learned counsel for the petitioner with the aid of the decisions referred to hereinabove appear to be correct. The Board by a very cryptic order dated 19th September, 2005 treated the questions to be substantial questions without even examining as to whether the material that was already available did give rise to any substantial question of law or not.
Apart from this, the reasoning of the Board as noted hereinabove, on the basis of evidence that was never led by the plaintiffs, could never in the opinion of the court be a reason to form the basis of a substantial question of law. The Board's order of remand is to allow the plaintiff to lead possible evidence that had not been led. An order of remand should not be passed for filling up any possible lacunae. This approach of the Board is not supportable on known principles of law.
Accordingly, the impugned judgment cannot be sustained. The order dated 8.1.2007 is set aside. The matter stands remitted to the Board of Revenue and the Board will in the light of the observations made hereinabove first proceed to examine as to whether any substantial question of law does arise or not, and will proceed with the matter thereafter and not otherwise.
The writ petition is allowed.
Dated: 9.9.2011 Sahu