RAM NATH Vs. BHAGGU

JUDGEMENT

(1.) THIS scond appeal has been filed against the order dated 17-8-1998 passed by Additional Commissioner, (Judicial) Jhasi Division in Appeal No. 53/9 of 1996-97 and 54/10 of 96-97 arising out of the order and decree passed by the S. D. O. Tal Behat district Lalitpur dated 4-6-1997 and 5-6-1997 respectively in declaratory suit No. 170/95-96 and 171/96-97. By the impugned order dated 4-6-97 the learned trial Court has summarily dismissed the declaratory suit without giving any opportunity of being heard or producing any evidence, simply on the basis of an inspection report of Collector Lalitpur without forming any issue and giving any finding on the same. Against this order first appeals were preferred before the learned Divisional Commissioner which were dismissed by the impugned order. The learned Additional Commissioner also placed reliance on the inspection report of Collector Lalitpur.

(2.) THE instant second appeal has been filed against this order. THE appellant has raised substantial questions of law in the second appeal. It is settle principle of law that the declaratory suit cannot and must not be decided summarily without affording any opportunity to the parties. No doubt spot inspection and its finding can be relevant in the process of arriving at the conclusion but it cannot become the sole basis for passing the order. THE trial Court as well as the first appellate Court have erred in law in not following the procedure laid down in the Code as well as in the Revenue Court Manual. THE orders passed by both the Courts below are thus fit to be set aside which are hereby quashed, and the case is remanded to the S. D. O. concerned for disposal in accordance with law after giving full opportunity of being heard to the parties concerned.