PAWAN KUMAR Vs. BOARD OF REVENUE

JUDGEMENT

(1.) By means of present writ petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 24th March, 2005, passed by Board of Revenue and also the order dated 30th June, 2003 passed by Additional Commissioner, Saharanpur. The brief facts of the present case are that the petitioners and all family members entered into an oral family settlement partition their shares by meets and bounds on 2nd February 1970 of the property in dispute. On 27th September, 1997, petitioner no. 1 Pawan Kumar filed a civil suit being suit no. 527 of 1997 for permanent injunction on the basis of family settlement dated 2nd February, 1970. In the aforesaid suit, the petitioners 2 and 3, who were arrayed as defendants, filed joint written statement on 5th December, 1997. Another defendant, namely, Smt. Anju also filed her written statement on 22nd December, 1997 in suit no. 527 of 1997. The aforesaid suit no. 527 of 1997 has been decreed by the civil Court on 29th April, 1998 on the basis of the compromise and a compromise decree was passed identifying the respective shares of the plaintiff and the defendants as agreed upon by the family settlement dated 2nd February, 1970. Thereafter on 19th July, 1999, the petitioners 1 and 3 filed separate suits being suit nos. 445, 450 and 444 under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act claiming the title as per their shares decided under the compromise decree of the civil Court dated 29th April, 1998. The suits filed by the plaintiffs i.e. petitioners 1 and 3 have been decreed by the trial Court vide its judgment and order dated 12th June, 2002 on the basis of the family settlement dated 2nd February, 1970 and the compromise decree of the civil Court on 29th April, 1998 passed in civil suit no. 527 of 1997. The entries of Khatauni were corrected on 20th June, 2002 as per decree dated 12th June, 2002. The respondents in this petition, filed appeals being appeal nos. 55, 56 and 59 against the judgment and decree dated 12th June, 2002 before the lower appellate Court on the ground that there was connivance between the plaintiffs and the defendants and that the suit was barred under Section 49 of the Consolidation of Holdings Act. The lower appellate Court vide its judgment and order dated 30th June, 2003 allowed the appeals filed by the respondents and set aside the judgment and decree of the civil Court dated 12th June, 2002. Being aggrieved by the order dated 30th June, 2003 passed by the lower appellate Court, the petitioners filed three separate identical second appeals before the Board of Revenue being second appeal nos. 6, 7 and 8. The Board of Revenue vide its judgment and order dated 24th March, 2005 dismissed the second appeals filed by the petitioners, thus this writ petition. Heard learned counsel appearing on behalf of the parties. Learned counsel for the petitioner has submitted that a second appeal lies against the judgement and order of lower appellate court in view of the provisions of Section 331 of the Act which is reproduced below:

(2.) On the strength of aforesaid two provisions and Section 100 of the code of Civil Procedure read with sub-sections 3, 4 and 5 which are reproduced below has submitted that a second appeal can be entertained and decided only when authority deciding second appeal is satisfied that substantial question of law is involved in any case and thereafter second appellate authority shall formulate that question. It is only after satisfaction of the second appellate authority that a substantial question of law is involved and formulation of the question so involved the second appeal shall be heard and decided. Section 100. Second Appeal..............

(3.) Learned counsel for the petitioner has further relied upon a decision of learned Single Judge of this Court reported in 2006 (100) RD 742; Ram Prakash and another Versus Ram Saran and others and in the case of Mohd. Islam and another Versus Board of Revenue and others reported in 2006 (100) RD 71 and another decision relied upon by counsel for the petitioner reported in the case of Anil Kumar and others Versus Board of Revenue, U.P. at Meerut and others reported in 2005 (99) RD 425 wherein this Court relying upon the decisions of the Apex Court in the case of Kshitesh Chandra Purakrit and another Versus Santosh Kumar Purakrit and another reported in 1997 (5) SCC 433 and in the case of Sheel Chandra Versus Prakash Chandra reported in 1998 (89) RD 623 (SC) has taken similar view. Learned counsel for the respondent in reply to the aforesaid argument advanced on behalf of counsel for the petitioner has submitted that the provisions of Section 100 of the Code of Civil Procedure became the part of the provisions of Section 331 of the Act in its present from on the principle of doctrine of legislation by way of incorporation and he therefore submitted that since the provisions of Section 100 of the Code of Civil Procedure has been brought on the statute by way of amendment in the Code of Civil Procedure in 1976 whereas the provisions of Code of Civil Procedure referred to in sub-section (4) of Section 331 of the Act refers to the provisions of Code of Civil Procedure. Thus relying upon the decision reported in 1994 SC 169 in the case of Gauri Shankar Gaur and others Versus State of U.P. and others counsel for the respondent submitted that the argument advanced on behalf of the petitioner deserves to be rejected.