GAYA PRASAD Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard Mr. Santosh Kumar Upadhyay and Mr. Vinod Kumar Upadhyay, learned counsel for the petitioners, Mr. Kunal Shah, learned counsel for respondent No. 5, Mr. Mridul Kumar, learned Standing Counsel for the State-respondents and Mr. Azad Rai, learned counsel for the respondent No. 6- Gram Sabha.

(2.) Brief facts of the case are that the dispute relates to plot No. 1120 area 0.034 hectare, 53-M area 0.263 hectare and 1119 area 0.160 hectare total 3 plots area 0.457 hectare. One Rajendra Kumar son of Late Peetambar Nath (son of respondent No. 5) filed a suit under Sec. 229-B of U.P.Z.A. and L.R. Act for declaration impleading State of U.P. and Gaon Sabha as defendants with the prayer that plaintiff be declared bhumidhar of the plot Nos. 1120, 53-M and 1119 total area 0.657 hectare. The aforementioned case was registered as Case No. 200 of 1997 before Sub-Divisional Officer, Sirathu, District-Kaushambi. The issues were framed in the aforementioned suit. The parties adduced evidence in support of their case. Trial Court/Sub-Divisional Magistrate vide judgment and decree dtd. 26/8/1997 decreed the plaintiff suit and ordered to record the name of the plaintiff/ Rajendra Kumar as bhumidhar of the plot in question after expunging the entry of banjar from the revenue records. State / gaon sabha has not challenged the judgment and decree dtd. 26/8/1997 passed by the trial Court. Petitioners challenged the judgment and decree dtd. 26/8/1997 in appeal under Sec. 331 (3) of U.P.Z.A. and L.R. Act after about 19 years along with the prayer for condonation of delay which was registered as Appeal No. 54 of 2015-2016 (Computerized Case No. C2016020000248) on the ground that the petitioners being member of joint Hindu family is also entitled 1/2 share in the disputed property of Suit No. 200 of 1997 in which judgment and decree was passed on 26/8/1997. The aforementioned appeal was heard by respondent No. 3 / Additional Commissioner-Ist Allahabad Division, Allahabad and vide judgment and order dtd. 10/11/2017 appeal was allowed and matter was remanded back before trial Court to decide the suit afresh after giving opportunity of hearing to the petitioners. Respondent No. 5 challenged the judgment and decree dtd. 10/11/2017 passed by respondent No. 3 before respondent No. 2- Board of Revenue, U.P. at Allahabad through second appeal under Sec. 331 (4) of U.P.Z.A. and L.R. Act, which was registered as Second Appeal No. 2861 of 2007 (Computerized Case No. AL20170242002861) before respondent No. 2/ Board of Revenue. The second appeal was heard by respondent No. 2 and vide judgment dtd. 14/9/2023, second appeal was allowed setting aside the appellate order dtd. 10/11/2017 and maintained the judgment and decree of the trial Court dtd. 26/8/1997, hence this writ petition for quashing the impugned judgment dtd. 14/9/2003 passed by respondent No. 2- Board of Revenue.

(3.) Learned counsel for the petitioners submitted that the petitioners claimed 1/2 share in the disputed property being member of joint Hindu family as well as on account of joint possession over the disputed property, as such, the appeal filed by petitioners under Sec. 331 (3) of U.P.Z.A. and L.R. Act against the judgment and decree of the trial Court was rightly allowed and matter was remanded back for fresh consideration of the suit in accordance with law. He further submitted that the second appeal filed on behalf of respondent No. 5 under Sec. 331 (4) of U.P.Z.A. and L.R. Act against the remand order passed in appeal by Commissioner was not maintainable but the same has been illegally allowed setting aside the appellate order and affirming the judgment and decree of the trial Court. He further submitted that the Board of Revenue has decided the second appeal in ex-parte as well as arbitrary manner. He further submitted that in respect to the subsequent substantial question of law which were framed in second appeal, no opportunity was given to the petitioners to argue against those substantial question of law, which were framed subsequently. He next submitted that in any case the matter can be remanded to the first appellate Court to decide the appeal under Sec. 331 (3) of U.P.Z.A. and L.R. Act afresh rather to maintain the judgment and decree of the trial Court. He also submitted that respondent No. 2/ Board of Revenue has failed to consider that the petitioners being member of the same family are also entitled 1/2 share in the disputed property. He further submitted that issue relating to the non-compliance of the provisions contained under Order XLI, Rule 31 of Code of Civil Procedure was never raised before the Court concerned, hence plaintiff-respondent cannot raised the same before the second appellate Court. He also submitted that the impugned judgment passed by respondent No. 2/ Board of Revenue be set aside and order passed by respondent No. 3/ Additional Commissioner-Ist, Allahabad Division, Allahabad be maintained.