AMARJEET Vs. STATE OF U. P.

JUDGEMENT

(1.) By means of the present writ petition the petitioner seeks a writ in the nature of Certiorari quashing the order dated 21.01.2021 passed by the Additional Commissioner (Judicial), Lucknow Division, Lucknow in Appeal No. 01741 of 2020 Amrik Singh and others vs Amarjeet Singh and others. The petitioner is a tenure holder of Gata no. 48/2, ad-measuring 1.207 ha situated at village Bahadur Nagar, Pargana Aurangabad, Tehsil Mithauli, District Lakhimpur Kheri and on 19.11.2020, the petitioner had filed an application for division of holdings under Section 116 of the U.P. Revenue Code 2006 before the Sub-Divisional Magistrate Mithauli Kheri, which was registered as Case No.04112 of 2002: Amarjeet and others versus Subash Chander and others. On 23.12.2020, the Sub-Divisional Magistrate Mithauli, Kheri, had passed a preliminary decree about the shares of the tenure holders relying upon the revenue records.

(2.) The preliminary decree dated 23.12.2020 was challenged by Amrik Singh and others by filing a First Appeal under Section 207 of the U.P. Revenue Code 2006 (hereinafter referred to as "the Code of 2006") which was registered as Appeal No.01741 of 2020. The petitioner had already filed a caveat application and when the Appeal was listed on 04.01.2015 for admission, the counsel for the petitioner raised a preliminary objection in writing with regard to the maintainability of the Appeal. The petitioner specifically mentioned before the Additional Commissioner that the Appeal is not maintainable because it has been filed only against a preliminary decree, which is an order of an interim nature, because the remaining proceedings are still to be concluded before the Sub-Divisional Magistrate and Section 207 of the Code of 2006 states that an Appeal would lie only against a final order or decree. It was also argued that the impugned order is of an 'interim nature' and further proceedings under Rule 109 still remain to be completed, and the Sub Divisional Magistrate has called for objections to be filed by the parties. It was also argued that the First Appeal was barred under Section 209 sub clause (f) of the Code of 2006, because the said Section specifically states that no Appeal shall lie against any order or decree, where such order and "decree is of an interim nature", yet the Additional Commissioner admitted the Appeal of the contesting respondents by a non-speaking order.

(3.) The learned counsel for the petitioner has referred to Section 207 of the Code of 2006 to state that under the said Section, a provision has been made for filing First Appeal and any party aggreived by a final order or decree passed in any suit, application or proceeding specified in column 2 of the Third Schedule, may prefer a First Appeal to the Court or Officer specified against it in column 4, where such order or decree was passed by a court or officer specified against it. The emphasis has been laid upon the word "final order" or "decree". It has been argued that the preliminary decree is not a final decree against which a first Appeal would lie under the Revenue Code.