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2007 Supreme(All) 2351
ALLAHABAD HIGH COURT
Poonam Srivastava
SITA RAM
Versus
BOARD OF REVENUE
Decided On : 13 September 2007
C. M. W. P. No. 9798 of 1983
H.S.N.Tripathi, R.P.Mishra, R.S.MISHRA,
The main legal point established in the judgment is the maintainability of the appeal, the validity of the alleged admission, and the jurisdiction of the revisional Court.
Headnote:
Revision No. 24 of 1981-82 - U. P. Z. A. and L. R. Act - Section 229-B - 151, C. P. C. - Order XLI C. P. C. - 1956 RD 44 - 1977 RJ 133
Fact of the Case:
The dispute arose between the petitioners and respondents, who are descendants of a common ancestor, regarding the ancestral land. The trial Court decreed the suit in favor of the petitioners based on an alleged admission by the contesting respondents. The contesting respondents later denied the admission, leading to a series of legal proceedings and appeals.
Finding of the Court:
The Court found that the contesting respondents disowned their alleged admission and that the appeal by the contesting respondents was maintainable. The Court also upheld the findings of the Additional Commissioner and the Board of Revenue, concluding that substantial justice was done by remanding the matter for appropriate adjudication.
Issues: The issues included the maintainability of the appeal, the alleged forgery of the admission, and the jurisdiction of the revisional Court.
Ratio Decidendi: The Court held that the appeal by the contesting respondents was maintainable, and the findings of the lower courts regarding the alleged forgery and jurisdiction were upheld. The Court also emphasized the need for appropriate adjudication to achieve substantial justice.
Final Decision: The writ petition was dismissed, and the Court found no good ground for interference.
Heard Sri R. S. Mishra, learned Counsel for the petitioners and Sri H. S. N. Tripathi Advocate for the contesting respondents.
2. The orders under challenge are passed by the Board of Revenue in Revision No. 24 of 1981-82 confirming the order of the Additional Commissioner dated 23-12-1981 in Appeal No. 360-D of 1980.
3. The facts giving rise to the dispute is that the petitioners and respondents are descendants of common ancestor Jagannath. The petitioners instituted a suit under Section 229-B of U. P. Z. A. and L. R. Act (hereinafter referred to as the Act) for declaration of their Co-bhumidhari rights in the disputed plot. The basis of their claim was that the disputed land was ancestral. After the written statement was filed, the said suit was withdrawn. Subsequently, the Suit No. 2049 of 1979 was instituted, a copy of the plaint is annexed as Annexure-1 to the writ petition. The respondent Nos. 3 to 7 admitted the claim of the petitioners and they admitted before the trial Court and made an application trough their Counsel Sri Ram Chandra Mani Tripathi Advocate. In the said application, it was admitted by their Counsel that the signatures and thumb impression were that of respondent Nos. 3 to 7, who were personally known to Sri Ram Chandra Mani Tripathi Advocate who identified the signatures of the contesting respondents. The application has been annexed as Annexure-2. The suit was decreed in terms of the admission viz-a- viz claim of the respondent Nos. 3 to 7 on 3-7-1979. The trial Court, vide order dated 30-7-1979 decided the suit in terms of the admission made by the contesting respondents which was made a part of the decree. It was directed that the name of the petitioners shall be recorded as co-tenants. The contesting respondents moved an application for recalling the aforesaid order denying their signatures on the application which was duly verified by their so called Counsel. They had no knowledge about the admission alleged to have been made by the contesting respondents The application to recall the order passed in the Suit No. 2049 of 1979 was moved on 29-8-1979, which was rejected by the trial Court on 29-11-1980. An appeal was preferred by the contesting respondents, which was allowed on 23-12-1981. The petitioners challenged the appellate order before the Board of Revenue by filing a revision, which
was also dismissed on 28-7-1983. The revisional Court set aside the order and decree on the basis of application admitting the claim of the petitioners and remanded the matter for deciding afresh on merits. Both the orders are impugned in the instant writ petition. Further proceedings in pursuance to the order of remand by the Board of Revenue dated 28-7-1983 was stayed by this Court on 10-8-1983 and the matter is kept pending since then.
4. Learned Counsel for the petitioners has challenged the orders on two grounds. The first ground is that the application to recall the order passed by the trial Court was rejected on 29-11-1980. No appeal could have been filed by the contesting respondents in as much as it was only an application that was rejected. Alternatively no appeal was maintainable against an order passed on an application under Section 151, C. P. C. because the application to recall the order can only be invoking powers under Section 151, C. P. C. In fact a revision should have been filed by the contesting respondents. In this view of the matter, the order dated 23-12-1981 is said to be without jurisdiction. The next submission is that while deciding the revision, the Board of Revenue has tried to carve out altogether a new case while recording a finding that the application moved through Sri Ram Chandra Mani Tripathi Advocate was a forged document.
5. Sri H. S. N. Tripathi appearing for the contesting respondents has disputed each and every arguments advanced on behalf of the petitioners. The submission is that the application to recall the order passed by the trial Court, which
