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2016 Supreme(All) 3952
ALLAHABAD HIGH COURT
Manoj Kumar Gupta, J.
Ram Ratan - Appellant
Versus
State of U.P. and 6 Others - Respondent
Writ - B No. 57876 of 2016
Decided On : 08-12-2016
For the Petitioner:- Akhtar Ali
For the Respondent:- C.S.C.,Mahesh Narain Singh
The trial court's failure to consider objections against the kurras justified the remand order, and the competence of the second appeal was upheld based on the lack of substantial question of law.
Headnote:
U.P.Z.A. & L.R. Act - Suit under Section 176 - Court confirms kurras - Appeal dismissed - Remand order challenged in second appeal - Board of Revenue dismisses appeal - Court upholds Board of Revenue's decision
Fact of the Case:
A suit was filed under Section 176 of U.P.Z.A. & L.R. Act, 1950, and a preliminary decree was passed. During the preparation of the final decree, objections were filed against the kurras. The trial court confirmed the kurras, and subsequent appeals were filed challenging the correctness of the kurras. The matter was remanded to the trial court for a fresh decision, and the petitioner appealed to the Board of Revenue, which dismissed the appeal.
Finding of the Court:
The Court found that the order of remand was not illegal, as the trial court had not considered the objections filed against the kurras. The Court declined to interfere with the Board of Revenue's decision, stating that the petitioner would have the opportunity to press his case in the trial court.
Issues: Validity of the order of remand, competence of the second appeal, substantial question of law
Ratio Decidendi: The trial court did not consider the objections filed against the kurras, justifying the remand order. The Board of Revenue's decision on the competence of the second appeal was upheld, as no substantial question of law was found to be involved.
Final Decision: The writ petition was dismissed, upholding the decision of the Board of Revenue.
Manoj Kumar Gupta, J.
Heard counsel for the petitioner, learned standing counsel for respondent nos. 1 to 4 and Shri M.N. Singh for respondent no. 7.
2. In a suit filed under Section 176 of U.P.Z.A. & L.R. Act, 1950 a preliminary decree was passed on 12.1.1991. During the course of the proceedings for preparation of final decree, the Lekhpal prepared kurras. Respondent nos. 5 and 6 filed objections against the kurras. The trial court by order dated 29.4.2014 rejected the objections and confirmed the kurras and directed for final decree being prepared accordingly. Aggrieved by the said order, the respondent nos. 5 and 6 filed an appeal. The appellate court, being of the opinion that the appeal was confined only to kurra allotted to the respondent nos. 5 and 6 whereas the other kurras have not been challenged, dismissed the appeal by order dated 19.7.2014, with liberty reserved in favour of the respondents to file a fresh appeal challenging the correctness of all the kurras. In pursuance of the liberty so granted, the respondent nos. 5 and 6 filed another appeal before the Commissioner, which has been decided by order dated 21.12.2015 by Additional Commissioner Meerut Division, Meerut. The Additional Commissioner has set aside the decree passed by the trial court confirming the kurras on the ground that the objections filed by the respondent nos. 5 and 6 against the kurras proposed by the Lekhpal were not dealt with by the trial court. Accordingly, the matter has been remanded to the trial court for taking a fresh decision, after considering the objections filed by the respondent nos. 5 and 6. Aggrieved by the remand order, the petitioner carried the matter in second appeal before the Board of Revenue. By impugned order dated 8.11.2016, the second appeal has been dismissed by holding that the order dated 21.12.2015 was passed in pursuance of the previous order dated 19.7.2014 granting liberty to respondent nos. 5 and 6 to file a fresh appeal. It has been held that since the said order has attained finality and therefore, the proceedings held in pursuance of the said order cannot be held to be illegal. Accordingly, the appeal has been dismissed.
3. Learned counsel for the petitioner submitted that the second appeal has been dismissed on a manifestly illegal ground. It is urged that the correctness and validity of order of remand has not been gone into by the Board of Revenue and thus, the impugned judgment of the Board of Revenue is not sustainable in law.
4. It is recorded in the impugned order of Board of Revenue dated 8.11.2016 that the main ground on which appeal was filed before it was that once the appeal was dismissed, another appeal before the same authority, challenging the same decree, was not maintainable. It is in context of the said plea that the Board of Revenue, in the impugned judgment has observed that the order dated 19.7.2014 granting liberty to file another appeal, having not been challenged, has attained finality. As such, it was not open to the petitioner to challenge its correctness on the ground that the appeal filed later on, was not competent. This Court concurs with the view taken in this regard by the Board of Revenue.
5. It is not disputed before this Court that the second appeal was filed by the petitioner against the order of remand, whereby the trial court has been directed to take a fresh decision after considering the objections filed by respondents no. 5 and 6 against the proposed kurras. The judgment of the trial court, by which the kurras were confirmed, does not indicate any application of mind to the objections filed by respondents no. 5 and 6 against the proposed kurras. Consequently, this Court finds that there is no illegality in the order of the Additional Commissioner dated 21.12.2015 remanding the matter to the trial court for a fresh consideration. It is for the said reason that while entertaining the second appeal, the Board of Revenue rightly observed that no substantial que
