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IN THE HIGH COURT OF ALLAHABAD
B.L. YADAV, J.
Mani Ram and Others - Appellant
Versus
Viresh Kumar and Others - Respondent
Civil Miscellaneous Writ Petition Nos. 3173 and 3174 of 1977
Decided on : 24-04-1985
ADOPTION - Second Appeal - Scope of Inquiry - Board of Revenue - Jurisdiction - First Appeal From Order - Maintainability - U.P. Land Laws (Amendment) Act, 1975 (30 of 1975), Section 25 - U.P. Zamindari Abolition and Land Reforms Act, 1950 (1 of 1951), Section 331(1), (2), (3), (4), (4-A) - Code of Civil Procedure, 1908 (5 of 1908), Section 100, Order 43, Rule 1(u).
Fact of the Case:
Two connected writ petitions were filed challenging the judgment of the Board of Revenue allowing two connected second appeals filed by Respondent No. 4 and setting aside the judgments of the Additional Commissioner, Meerut Division, Meerut whereby the first appeals were partly allowed and partly remanded for determination of the factum of possession and its effect in two connected writs filed by the Petitioners u/s 229-B of the OP ZA and LR Act (for short the Act) whereby adoption of Respondent No. 1 by Smt. Mukandi Devi, widow of Munshi Lal was challenged and the Plaintiffs claimed relief for declaration of their sirdari and bhumidhari rights but those reliefs were refused by the trial court.
Finding of the Court:
1. The Board of Revenue exceeded its jurisdiction by assuming the power of the first appellate court and setting aside the findings of fact about the factum of adoption recorded by the first appellate court. 2. The Additional Commissioner did not appreciate the oral evidence about the validity or otherwise of the adoption correctly and lost sight of the fact that the trial court had the advantage of observing the manner in which the Plaintiff-witnesses and the Defendant-witnesses have given their testimonies.
Issues: 1. Whether a First Appeal From Order is maintainable before the Board of Revenue against an order of remand passed by the Additional Commissioner u/s 331(3) of the Act? 2. Whether the scope of inquiry for a First Appeal From Order is wider than that of a Second Appeal u/s 100 CPC? 3. Whether the Board of Revenue was required to decide the Second Appeal under the scope of Section 100 CPC?
Ratio Decidendi: 1. Section 331 of the Act provides a comprehensive framework for cognizance of suits, applications, and proceedings under the Act, including the maintainability of appeals. Sub-section (3) of Section 331, as amended by the U.P. Land Laws (Amendment) Act, 1975, specifically provides for an appeal from an order passed u/s 47 or an order of the nature mentioned in Section 104 or Order 43, Rule 1 of the First Schedule to the Code of Civil Procedure, 1908, to the court or authority mentioned in column No. 5 of Schedule II to the Act. 2. The scope of inquiry for a First Appeal From Order is not wider than that of a Second Appeal u/s 100 CPC. Section 331(4) of the Act provides that a second appeal shall lie on any of the grounds specified in Section 100 CPC from the final order of decree passed in an appeal under Sub-section (3), to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid. 3. The Board of Revenue was required to decide the Second Appeal under the scope of Section 100 CPC, as provided in Section 331(4) of the Act. The scope of Second Appeal from Order has been provided in Section 331(A) of the Act. The Second Appeal has to be decided in accordance with the provisions indicated u/s 100 Code of Civil Procedure. u/s 100 CPC only questions of law can be decided and no evidence can be appreciated or considered afresh.
Final Decision: The writ petitions were allowed. The judgments of the Board of Revenue dated 27-10-1976 and that of the Additional Commissioner dated 14-2-1972 were quashed. The case was remanded to the Additional Commissioner to decide the appeals afresh in accordance with law and in the light of the observations made by the court.
B.L. YADAV, J.
1. These two petitions involve similar questions of law and facts, hence they are being disposed of together by this common judgment.
2. These two petitions are directed against the judgment dated 27-10-1976 rendered by the Board of Revenue allowing two connected second appeal? filed by Respondent No. 4 and setting aside the judgments dated 14-2-1972 passed by the Additional Commissioner, Meerut Division, Meerut whereby the first appeals were partly allowed and partly the matter was remanded for determination of the factum of possession and its effect in two connected writs filed by the Petitioners u/s 229-B of the OP ZA and LR Act (for short the Act) whereby adoption of Respondent No. 1 by Smt. Mukandi Devi, widow of Munshi Lal was challenged and the Plaintiffs claimed relief for declaration of their sirdari and bhumidhari rights but those reliefs were refused by the trial court.
3. The Petitioners had filed two suits with the allegations that the land in dispute belonged to one Munshi Lai who died in 1954 leaving Smt. Mukandi Devi as his widow who died on 12-7-1975 and the alleged adoption of Viresh Kumar, Respondent No. 1, by Smt. Mukandi Devi after the death of her husband was not legal, that the order for mutation was passed in favour of Respondent No. 1 Viresh Kumar, adopted son and the claim of the Petitioners was rejected. The Petitioners feeling aggrieved filed the present two suits for declaration that they were bbumidhars and sirdars and Respondent No. 1 Sri Viresh Kumar not being legally adopted son has no right to be recorded in the revenue papers in place of Smt. Mukandi Devi and Sri Munshi Lal.
4. The aforesaid suits were contested by Viresh Kumar, Respondent No. 1 who alleged that he was legally adopted by Smt. Mukandi Devi and his adoptive mother died much after the date of adoption and his name was correctly entered in place of the deceased as bhumidhar and sirdar and that the Petitioners have no right to succeed and they were not the heirs of the deceased. Hence their suits were liable to be dismissed.
5. The Assistant Collector, First Glass, Muzaffarnagar, dismissed both the suits holding that Viresh Kumar was legally adopted and he was correctly recorded in place of the deceased in the revenue papers and he continued in possession. The Petitioners preferred two appeals before the Additional Commissioner which were partly allowed holding that the adoption was invalid and the case was remanded for recording a finding about the possession and its effect on the rival claimants. Respondent No. 1 preferred second appeals which were allowed by the impugned judgment dated 27-10-1976 rendered by the Board of Revenue in two connected second appeals.
6. These writ petitions were decided earlier by me on 27-7-1984. But restoration applications were filed by Respondent No. 1 and the same were allowed and the judgment and order dated 27-7-1984 was recalled. This is bow these petitions have come up again for disposal.
7. Sri R.N. Singh, learned Counsel for the Petitioners urged that the two connected second appeals were filed by Respondent No. 1 u/s 331(4) of the Act and the scope of inquiry by the Board of Revenue in second appeals was as provided u/s 100 Code of Civil Procedure. Under that section only the questions of law could have been gone into and the findings of fact could not be set aside. He further urged that even the Additional Commissioner has remanded the cases to the trial court for recording a finding about possession and its legal effect on the rival clams of the parties. But against such an order only second appeal could be filed u/s 331(4) of the Act and no First Appeal From Order could have been filed u/s 331(3) of the Act as the provisions of Section 331 do not contemplate any First Appeal From Order to be filed against the order of the Additional Commissioner remanding the matter to the trial court. He further urged, in the alternative, that the scope of inquiry for the First Appea
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