Court No. - 22
Case :- WRIT - B No. - 11327 of 1993 Petitioner :- Ram Autar Respondent :- B.R.
Counsel for Petitioner :- K.G. Srivastava,Rahul Sahai,Rahul Srivastava,Smt.Sunita Srivastava,Sunil Srivastava Counsel for Respondent :- S.C.,B.P. Yadav,D.D.Chauhan,K.B. Garg,R.K.Chitragupt,Santosh Kumar Upadhyay,V.K.Singh,Vinod Kumar Upadhyay
Hon'ble Salil Kumar Rai,J.
1. Heard Shri Rahul Srivastava, learned counsel for the petitioner and Shri V.K. Upadhyay, learned counsel for respondent No. 2.
2. The dispute between the petitioner and respondent No. 2 in the present writ petition as well as in the proceedings before the Revenue Courts from which the present writ petition arises relate to execution of sale-deeds dated 25.6.1971 and 28.6.1971. One Maiku was the tenure holder of the disputed plots. It was alleged by respondent No. 2 before the courts below and before this Court that Maiku had executed a sale-deed dated 25.6.1971 in his favour regarding the disputed plots. Maiku had also executed a sale-deed in favour of the petitioner regarding the disputed plots on 28.6.1971. Because of the doubts created on the title of the petitioner due to the alleged sale-deed dated 25.6.1971 executed by Maiku in favour of respondent No. 2, the petitioner instituted Case No. 122 under Section 229- B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') seeking a declaration regarding his Bhumidhari rights over the suit property. Numerous issues were framed by the Trial Court, but the issue relevant for a decision of the present writ petition was as to whether Maiku had executed the sale-deed dated 25.6.1971 in favour of respondent No. 2. The said issue was relevant because in case Maiku had already executed a sale-deed dated 25.6.1971 in favour of respondent No. 2, the sale-deed executed in favour of the petitioner would have been void. Before the Trial Court, Maiku appeared as a witness and denied the execution of the sale-deed dated 25.6.1971 in favour of respondent No.
2. One A.K. Chatterji, Fingerprint Expert submitted his report before the Trial Court expressing his opinion that the sale-deed dated 25.6.1971 and 28.6.1971 were executed by the same person. However, the Trial Court after recording a finding that the defendant, i.e., respondent No. 2 could not prove that consideration for the sale-deed was paid to Maiku, held the sale-deed dated 25.6.1971 to be void. The Trial Court also recorded a finding that the execution of the sale-deed dated 25.6.1971 has not been formally proved by respondent No. 2. It appears that in the Trial Court there was no serious contest regarding the execution of the sale-deed in favour of the petitioner and the validity of the sale-deed dated 28.6.1971 in favour of the petitioner dependend on the findings on the execution of the sale-deed dated 25.6.1971. Consequently, the Trial Court vide its judgement and decree dated 3.8.1985 decreed Case No. 122 and declared the petitioner to be the Bhumidhar of the suit property.
3. Aggrieved by the judgement and decree of the Trial Court, respondent No. 2 filed an appeal, which was registered as Appeal No. 107/1988 and the first appellate court vide its judgement and order dated 24.12.1988 dismissed the said appeal. Aggrieved by the judgement and order dated 24.12.1988 passed by the first appellate court, respondent No. 2 filed Second Appeal No. 26/1988- 89 which was also dismissed by the Board of Revenue, U.P. at Allahabad, i.e., respondent No. 1, (hereinafter referred to as, 'Board of Revenue') vide its judgement and order dated 30.3.1992. Subsequently, respondent No. 2 filed an Application under Order 47 Rule 1 of Civil Procedure Code, 1908 praying for review of the judgement and order dated 30.3.1992 on the ground that in its aforesaid judgement the Board of Revenue had not considered the report of the Fingerprint Expert which conclusively proved that the same person had executed the sale-deeds dated 25.6.1971 and 28.6.1971 and, thus also proved that the sale-deed dated 25.6.1971 was executed by Maiku himself. The Board of Revenue vide its order dated 5.3.1993 allowed the review application and recalled its order dated 30.3.1992 fixing the appeal for fresh hearing on merits after recording its opinion that the failure of the Board of Revenue to consider the report of the Fingerprint Expert was an error apparent on the face of record, and therefore, the judgement and order dated 30.3.1992 passed by the Board of Revenue in Second Appeal No. 26/1988-89 was liable to be reviewed and fresh orders were liable to be passed in the said appeal. The order dated 5.3.1993 has been challenged in the present writ petition.
4. It has been argued by the learned counsel for the petitioner that the failure, if any, on the part of Board of Revenue to consider the report of the Fingerprint Expert could not have been a ground to review the order dated 30.3.1992. It was argued that in view of the findings of all the courts below that the alleged sale-deed dated 25.6.1971 allegedly executed by Maiku in favour of respondent No. 2 was void because no consideration was paid to Maiku, therefore, even if the report of the Fingerprint Expert is believed regarding execution of the sale-deed, the judgement dated 30.3.1992 passed by the Board of Revenue is not liable to be reviewed and the said ground was not sufficient to review the order dated 30.3.1992. It was further argued by the learned counsel for the petitioner that, in any case, the second appellate court, i.e., the Board of Revenue had considered the report of the Fingerprint Expert, and therefore, there was no error apparent on the face of record to occasion a review of the order dated 30.3.1992. It was argued that for the aforesaid reasons, the order dated 5.3.1993 passed by the Board of Revenue was contrary to law and is liable to be set aside.
5. Rebutting the argument of learned counsel for the petitioner, the learned counsel for respondent No. 2 has argued that the present writ petition is not maintainable as it has been filed against an interlocutory order granting the application for review and no final order adverse to the petitioner has yet been passed. It was argued that there was no error in the order of the Board of Revenue granting the review inasmuch as the report of the Fingerprint Expert was a relevant piece of evidence which was ignored by the Board of Revenue in its order dated 30.3.1992. It was further argued that the matter is pending in this Court since last more than twenty five years and the Board of Revenue could not pass fresh orders in the second appeal subsequent to its order dated 5.3.1993 inasmuch as by order dated 6.4.1993 passed by this Court the proceedings before the Board of Revenue were stayed. It was stated that in case the said proceedings had not been stayed the review application would have been decided by now and the petitioner would have taken recourse to any other remedy available to him against the final order passed by the Board of Revenue. It has been stated that because of the order dated 5.3.1993 passed by the Board of Revenue, the respondent No. 2 was not able to challenge the order dated 30.3.1992 passed by the Board of Revenue before this Court, and therefore, any order passed by this Court setting aside the order dated 5.3.1993 would prejudice the respondent No. 2 depriving him of his rights to challenge, on merits, the order dated 30.3.1992 before this Court under Article 226 of the Constitution of India. It was argued that for the aforesaid reasons, the present writ petition is liable to be dismissed.
6. I have considered the rival submissions of learned counsel for the parties and perused the record.
7. It was held by the Supreme Court in State of West Bengal and Others Vs. Kamal Sengupta and Another, (2008) 8 SCC 612 that unless the evidence relied upon to grant review application was of such a character that it could alter the original judgement of the Courts granting the review, the same would not be an error apparent on the fact of record or sufficient reason to allow the review application.
8. A reading of the judgements dated 3.8.1985, 24.12.1988 and 30.3.1992 of the courts below show that the report of the Fingerprint Expert had been considered by the revenue courts. A reading of the judgement dated 30.3.1992 also shows that the Board of Revenue had also considered the failure of the parties especially plaintiff/petitioner to cross- examine the Fingerprint Expert despite having been granted numerous opportunities to do so. However, the findings of the revenue courts recorded in their orders also show that the revenue courts rejected the claim of respondent No. 2 on the ground that respondent No. 2 had not been able to prove payment of consideration for the sale-deed dated 25.6.1971. Failure to pay consideration makes the sale-deed dated 25.6.1971 void and would not confer any right on respondent No. 2. The report of the Fingerprint Expert was relevant only to prove the execution of sale-deed dated 25.6.1971. Even if the execution of the sale-deed had been proved by respondent No. 2 either with the help of the report of the Fingerprint Expert or by any other evidence, the same would not have helped the respondent No. 2. Thus, the alleged failure of the Board of Revenue to consider the report of Fingerprint Expert could not have been a ground to entertain the review application and the order dated 5.3.1993 is clearly without jurisdiction and is liable to be set aside.
9. The argument of learned counsel for respondent No. 2 that the revision against the order dated 5.3.1993 was not maintainable because no final order had yet been passed against the petitioner is not acceptable inasmuch as it would serve no useful purpose to force the petitioner to participate in proceedings which are without jurisdiction.
10. For the aforesaid reason the writ petition is allowed. The order dated 30.3.1992 passed by the Board of Revenue is hereby set aside.
11. However, the grievance of respondent No. 2 that the cumulative effect of the order dated 5.3.1993 passed by the Board of Revenue as well as the interim order dated 6.4.1993 passed by this Court and the present order allowing the present writ petition is that respondent No. 2 is deprived of his rights to challenge the orders of the revenue courts including the order dated 30.3.1992 passed by the Board of Revenue, has force. Considering the circumstances of the present case, the respondent No. 2 shall be at liberty to challenge the order dated 30.3.1992 passed by the Board of Revenue, i.e., respondent No. 1 passed in Second Appeal No. 26/1988-89 and the orders of subordinate revenue courts under Article 226 of the Constitution of India, if he is so advised.
Order Date :- 25.2.2019 Anurag/-