JUDGMENT Poonam Srivastava, J.
1. Heard Sri R.S. Mishra, learned Counsel for the petitioners and Sri H.S.N. Tripathi, advocate for the contesting respondents.
2. The orders under challenge are passed by the Board of Revenue in Revision No. 24 of 1981-82 confirming the order of the Additional Commissioner dated 23.12.1981 in Appeal No. 360D of 1980.
3. The facts giving rise to the dispute is that the petitioners and respondents are descendants of common ancestor Jagannath. The petitioners instituted a suit under Section 229B of U.P.Z.A. and L.R. Act (hereinafter referred to as 'the Act') for declaration of their Co-bhumidhari rights in the disputed plot. The basis of their claim was that the disputed land was ancestral. After the written statement was filed, the said suit was withdrawn. Subsequently, the Suit No. 2049 of 1979 was instituted, a copy of the plaint is annexed as Annexure-1 to the writ petition. The respondent Nos. 3 to 7 admitted the claim of the petitioners and they admitted before the trial court and made an application through their counsel Sri Ram Chandra Mani Tripathi advocate. In the said application, it was admitted by their counsel that the signatures and thumb impression were that of respondent Nos. 3 to 7, who were personally known to Sri Ram Chandra Mani Tripathi advocate who identified the signatures of the contesting respondents. The application has been annexed as Annexure-2. The suit was decreed in terms of the admission vis-a-vis claim of the respondent Nos. 3 to 7 on 3.7.1979. The trial court, vide order dated 30.7.1979, decided the suit in terms of the admission made by the contesting respondents which was made a part of the decree. It was directed that the name of the-petitioners shall be recorded as co-tenants. The contesting respondents moved an application for recalling the aforesaid order denying their signatures on the application which was duly verified by their so-called counsel. They had no knowledge about the admission alleged to have been made by the contesting respondents. The application to recall the order passed in the Suit No. 2049 of 1979 was moved on 29.8.1979. which was rejected by the trial court on 29.11.1980. An appeal was preferred by the contesting respondents, which was allowed on 23.12.1981. The petitioners challenged the appellate order before the Board of Revenue by filing a revision, which was also dismissed on 28.7.1983. The revisional court set aside the order and decree on the basis of application admitting the claim of the petitioners and remanded the matter for deciding afresh on merits. Both the orders are impugned in the instant writ petition. Further proceedings in pursuance to the order of remand by the Board of Revenue dated 28.7.1983 was stayed by this Court on 10.8.1983 and the matter is kept pending since then.
4. Learned Counsel for the petitioners has challenged the orders on two grounds. The first ground is that the application to recall the order passed by the trial court was rejected on 29.11.1980. No appeal could have been filed by the contesting respondents inasmuch as it was only an application that was rejected. Alternatively no appeal was maintainable against an order passed on an application under Section 151, C.P.C. because the application to recall the order can only be invoking powers under Section 151, C.P.C. In fact a revision should have been filed by the contesting respondents. In this view of the matter, the order dated 23.12.1981 is said to be without Jurisdiction. The next submission is that while deciding the revision, the Board of Revenue has tried to carve out altogether a new case while recording a finding that the application moved through Sri Ram Chandra Mani Tripathi advocate was a forged document.
5. Sri H.S.N. Tripathi appearing for the contesting respondents has disputed each and every argument advanced on behalf of the petitioners. The submission is that the application to recall the order passed by the trial court, which was confirmed in revision, is a remand order. It does not call for an interference in writ jurisdiction and secondly that the findings are concluded by findings of fact.
6. After hearing the learned Counsel for the respective parties and going through the record, I have examined the application moved on behalf of the contesting respondents to recall the order dated 30.7.1979. The application is annexed as Annexure-4 to the writ petition. The contesting respondents have specifically stated in the application that they had never instructed Sri Ram Chandra Mani Tripathi advocate neither they have endorsed their signatures or thumb impression on the so-called admission which resulted in passing of the order dated 30.7.1979. There is yet another circumstance, mentioned in paragraph 2 of the application. The respondents had filed their objections in the original suit instituted by the petitioner under Section 229B of the Act, which was subsequently withdrawn. It is also submitted that in the subsequent proceeding initiated on the basis of alleged application/ admission by the contesting respondents through fictitious person should be recalled. In the circumstances, it is evident that at the very first instance, the contesting respondents expressed their complete ignorance about the proceedings in the subsequent suit alleged to be an admission in favour of the petitioners. It is thus clear that the contesting respondents disowned their admission through their counsel on 31.5.1979. The admission in the said application is completely contradictory to the claim set up by the contesting respondents in the previous suit instituted by the petitioners as well as in the subsequent suit. So far the objection regarding maintainability of the appeal is concerned, I am of the view that the order passed by the trial court/S.D.O. in the suit deciding it in the terms of admission of the contesting respondents, also mentions that the admission shall form part of the decree. Since the suit was decreed in terms of the admission filed by the defendant Nos. 1 to 5 (respondents), the objection of the learned Counsel for the petitioners that the appeal was not maintainable, is of no substance. In fact the suit was decreed in the terms of the application and, therefore, the respondents were well within their rights to file an appeal which was maintainable. I am not in agreement with the arguments of the learned Counsel for. the petitioners. While allowing the appeal of the contesting respondents, the statement given by Sri Ram Chandra Mani Tripathi advocate has been considered at length. The affidavit filed by Chhabinath was not controverted by filing counter-affidavit, wherein he has specifically denied to have put his signature or thumb impression on the vakalatnama and consequently learned Commissioner rejected the claim of the petitioners after taking into consideration the statement given by Sri Ram Chandra Mani Tripathi advocate. He has come to a conclusion that the contesting respondents had no knowledge about the order of the trial court and only when the file was inspected through their counsel, it transpired that fraud was practised. The appellate court had placed reliance on a decision in 1956 RD 44 where the proceedings ended in a compromise. There was an ex parte decree while rejecting an application under Order IX, Rule 13 C.P.C. and it was concluded that an appeal under Order XLIII, Rule 1, C.P.C. was maintainable. Similar view was expressed in 1977 RJ 133. In the circumstances, I do not find that there was any illegality whatsoever committed by the learned Additional Commissioner while entertaining the appeal. Order XLI, C.P.C deals with 'Appeals From Original Decrees'. The admission by the defendant/ respondent formed part of the decree which was passed in an original suit. Thus, the argument to the contrary on behalf of the petitioners are not acceptable.
7. So far the next submission is concerned that the revisional court exceeded its jurisdiction by carving out a new case of forgery is also wrong. The revisional court has only stated and confirmed the order of the appellate court after perusing the entire records of the case. The findings already recorded by the appellate court that the respondents were duped by the petitioners by getting the' decree on the basis of alleged application said to have been duly signed by the contesting respondents, whereas the appellate court had categorically recorded a finding on the basis of the affidavit filed by the contesting respondents that a fraud was practised on them. This finding has only been elucidated by the revisional court after examining the record. So far the finding to the effect that the State and Gaon Sabha were not served, is only an additional circumstances to accept and confirm the findings of the Additional Commissioner. It is wrong to say that the revisional court carved out a new case. No jurisdictional error has been committed by the Board of Revenue while dismissing the revision with cost. In the circumstances, the arguments advanced on behalf of the petitioners has no force.
8. I can also not lose sight of the fact that this writ petition has been filed against the remand order. The proceedings have been got stayed since the year 1983 only with a view to stall a decision on merits regarding the claim of respective parties. This has yet to be decided on merits after the evidence is recorded and, therefore, I come to a conclusion that substantial justice has been done by the revisional court in remanding the matter back for an appropriate adjudication. No good ground for interference is made out. The writ petition lacks merit and is accordingly dismissed. There shall be no order as to cost.