(Oral)
1. Heard learned counsel for the petitioners, Sri Mohan Singh, learned counsel appearing on behalf of the Gaon Sabha and Sri Raj Baksh Singh, learned standing Counsel.
2. No notice is being issued to the private respondents at this stage, as the order proposed to be passed shall not affect the interest of the private respondent as they shall be heard by the Board of Revenue on substantial question of law, if any framed by it.
3. This petition has been filed challenging the order dated 17.07.2019 passed by the Board of Revenue in Second Appeal No.1320 of 2019, computerized case No.R20191714001320 (Shailendra Kumar & anotherVs. Commissioner Basti Mandal, Basti and others) filed under Section 331 of U.P.Z.A. & L.R. Act.
4. It has been submitted by learned counsel for the petitioners that by means of the impugned order, the Board of Revenue has entertained the Appeal and stayed the operation and implementation of the orders dated 13.06.2019, 22.01.2019 and 21.07.2016 passed by the Commissioner, Basti Mandal and by the SDM Sadar Basti.
5. It is the case of the petitioners that certain land situated in village Padri Tappa Gaur, Pargana Basti Paschim, Tehsil Harraiya, District Basti, was recorded in the name of one Surya Narayan Lal, who executed a sale deed in favour of the petitioners as well as private opposite party nos. 2 and 3. On receipt of consideration, the possession was handed over by the said recorded tenure holder. An R.C.C. road was constructed in the village as a result whereof the land came on the road side and the opposite party nos.2 and 3 started creating hindrance in the peaceful possession of the petitioners. They also filed a suit for partition under Section 176 which was registered as Case No.314/732/15. After giving full opportunity of hearing, the case was decided on 22.01.2019. The opposite party nos.2 and 3 preferred an Appeal before the Commissioner which was also decided in favour of the petitioners on 13.06.2019. Before both the learned Courts below, the parties were given their shares so that all of them had some land touching the road side. The opposite party nos.2 and 3 challenged the order by filing Second Appeal before the Board of Revenue without framing substantial questions of law. A certified copy of the memo of the Second Appeal has been filed as annexure-4 to the petition, which shows that the memo states only grounds and after the grounds the prayer has been made. There is no substantial question of law framed by the Board of Revenue while admitting the Appeal and issuing notice to the petitioners and staying the operation of the impugned order.
6. Learned counsel for the petitioners has placed reliance upon the language of Section 331 (4), which is as follows:-
"(4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in Column 6 of the Schedule aforesaid."
7. It has been submitted that under Section 100 of the Civil Procedure Code, it has been provided under Sub-Section 3 that in an Appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. In Sub-Section 4, it has been provided that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. Sub-Section 5 says that the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. A liberty has also been granted to the Court to hear the Appeal on any other substantial question not formulated by it earlier, if it is satisfied that the case involves such question.
8. Learned counsel for the petitioners has also placed reliance upon the judgment of Co-ordinate Bench in Writ Petition No.2001 (M/S) of 2001: Mohan Singh and others Vs. The Board of Revenue, U.P. Allahabad and others; decided on 04.09.2009.
9. This Court was considering a similar question where this Court relied upon an observation made by Hon'ble Supreme Court in V. Ramaswamy Vs. Ramachandran and another, reported in 2009 AIR SCW 4335 and Subramaniaswamy Temple, Ratnagiri Vs. V. Kanna Gounder (Dead) through LRs 2009 (27) LCD 517. The Supreme Court observed thus:-
"The High Court, while exercising its jurisdiction under Section 100 of the Code of Civil Procedure, was required to formulate a substantial question of law which might have arisen for its consideration. No question of law was framed far less any substantial question of law relating to identification of the property. The High Court, therefore, in our opinion completely misdirected itself in passing the impugned judgment."
10. Learned counsel for the petitioner has also placed before this Court the judgement of Subramaniaswamy Temple, Ratnagiri (supra), where the Court was considering the Appeal arising out of Section 100 of the C.P.Cc.
11. This Court has gone through the judgments as cited by the learned counsel for the petitioner and has also gone through the memo of the Appeal filed as annexure-4 to the petition and the order passed by the BoR on 17.07.2019. It is apparent that no substantial questions of law were framed in the Memo of the Appeal.
12. At the time of the admission of the Appeal, the Board of Revenue also did not also feel it appropriate to frame any question of law, much less a substantial question of law. It admitted the Appeal, issued notices to the petitioners, respondents therein, and stayed the orders impugned.
13. The order dated 17.07.2019 is thus vitiated and is set aside.
14. It shall be open for the Board of Revenue to consider the admissibility of the Second Appeal which has been filed without any specific substantial question of law being framed in the Memo of appeal and then pass appropriate orders in accordance with law.
15. This petition is accordingly disposed of.
Order Date :- 3.2.2021 Rahul