RAM GARIB SINGH Vs. BHAGAUTI DIN SINGH

JUDGEMENT

(1.) THE facts giving rise to the above appeal may be enumerated as below :- Bhagwati Din Singh and others filed a suit against Ram Garib Singh for partition of certain tenancy plots. A preliminary decree for partition was passed and the same became final. An application for preparation of final decree was made and in proceedings arising from the final decree the matter came up before the Board of Revenue. THE Board of Revenue by its order dated 25th November, 1970 abated the entire suit. It is admitted between the parties that as a consequence of the order passed by the Board of Revenue the preliminary decree and the application for final decree both abated and the controversy between the parties had to be decided by the consolidation courts. During the pendency of the revision application before the Board of Revenue which culminated in order dated 25th November 1970 a suit for mesne profits was filed in the court of the Civil and Sessions Judge Pratapgarh which was numbered as Regular Suit No. 4 of 1971. During the pendency of the suit the Board of Revenue by an order dated 25th November, 1970 abated the entire suit including the preliminary decree for partition. THE Civil Judge by his judgment dated 25th September 1971 dismissed the suit on the ground that the order passed by the Board of Revenue was final and as a consequence of the said order the preliminary decree and the proceedings relating to final decree have abated, hence the suit for mesne profits was not maintainable.

(2.) AGAINST the decree passed by the trial court an appeal was preferred by the plaintiff. The District Judge Pratapgarh by his judgment and decree dated 2nd June 1972 allowed the appeal. He held that the preliminary decree was conclusive between the parties and the said, decree had not lapsed. He sent back the case to the trial court for determination of the quantum of mesne profits after giving opportunity to the parties to produce any further oral or documentary evidence. AGAINST the order dated 2nd June 1972 F.A.F.O. No. 49 of 1972 was filed in this Court. The Hon'ble Judge hearing the said appeal framed certain questions and referred the matter to a Division Bench for the determination of the question framed. That Division Bench on 15th April, 1976 held that as notification u/Section 4 of the Consolidation of Holdings Act had been issued in respect of the land in dispute and the suit related to the determination of the rights of the parties the ' Board of Revenue had jurisdiction to decide the question about the abatement of the suit under Section 5 (2) of the Act. The Division Bench held that if the Board had jurisdiction to decide the question whether the suit had abated or not its decision one way or the other can only suffer from an error of law ; it cannot be held to be passed in exercise of a jurisdiction not vested in it by law. The Division Bench further held that so long as the order of the Board of Revenue passed u/Section 5 (2) of the U.P. Consolidation of Holdings Act stood, the preliminary decree passed in the suit will be deemed to be wiped off the record and the suit from the stage of the plaint will be deemed to have abated. After the Division Bench had answered the question referred to it the F.A.F.O. was listed before me for decision.