The crucial issues decided in favor of the petitioner had attained finality in one of the suits, rendering the appeal barred by res judicata. Additionally, the new plea raised by the petitioner could not be brushed aside and went to the root of the matter.

JUDGMENT :

1. On the previous occasion i.e. 06.03.2019, I had heard Sri Anupam Kulshreshtha, learned counsel for the petitioner and Sri. Shiv Nath Singh, learned counsel for the contesting respondents.

2. The matter is listed today for dictation of judgment.

3. The instant writ petition arises out of proceedings under Section 229 of the U.P.Z.A and L.R. Act and seeks a writ of certiorari for quashing the judgments and orders dated 31.01.2006 and 24.04.2006 passed by the Additional Commission, Kanpur Division, Kanpur and the Board of Revenue, respectively.

4. The facts of the case briefly stated are that the petitioner filed two declaratory suits under Section 229B of the U.P.Z.A and L.R. Act. The first suit no. 32/79, re-numbered as 31/2003, sought a declaration regarding 4 plots and was filed arraying Harishchandra s/o Molu, Deshraj and Dayaram s/o Baldeo as defendants on the plea that Harishchandra was wrongly recorded over the said 4 plot, in collusion with the Lekhpal. It was alleged that Harishchandra is not his (plaintiffs) brother and is the son of Molu. Harishchandra could not be the brother of the plaintiff who is son of Bansi.

5. The plaintiff also filed another suit no. 19/47/1979. This suit was regarding plot no. 436/2. In this suit also, plaint allegation was that Harishchandra was wrongly recorded over the land in collusion with the revenue authorities and that Harishchandra is not his brother. Harishchandra is in fact the s/o of Molu and had inherited the land recorded in the name of Molu in village Khemapur.

6. Both the suits were consolidated and they were decreed by a common judgment. It was held that Harishchandra had wrongly been recorded over the plots in suit and his name was directed to be expunged.

7. It is contended that against the judgment and decrees passed by the trial court in the two suits aforesaid, only a single appeal was filed by Harishchandra. In this appeal the parties in suit no. 31/2003, alone were impleaded. The parties in suit no. 19/47/1979 were not impleaded in the first appeal filed by Harishchandra.

8. The appeal aforesaid was allowed by the appellate court vide judgment and decree dated 31.01.2006 and the matter was remanded back to the trial court for a fresh decision.

9. Against the order of remand the petitioner filed a revision which was dismissed by the Board of Revenue vide judgment and order dated 24.04.2006.

10. It is these two judgments namely dated 31.01.2006 and 24.04.2006 which are impugned in this writ petition.

11. The submissions on behalf of plaintiff are 2 fold. First, only one appeal had been filed by Harishchandra before the Commissioner. Since two suits, wherein parties were substantially different as was the property in dispute, had been decided by a single common judgment, the defendant Harishchandra was necessarily required to file two separate appeals. He had filed only one appeal impleading the parties in one suit alone. Under the circumstances and since the common judgment, in so far as it pertained to other suit, i.e. suit no. 19/47/1979, has never been challenged, the findings returned therein would operate as res judicata. Therefore the appeal filed by Harishchandra was liable to be dismissed as barred by res judicata.

12. In support of this contention, reliance has been placed upon Premium Tyre versus Kerela State Road Transport Ltd. 1993 (ACJ) 1011.

13. The second contention of counsel for the petitioner is that the first appellate court, unnecessarily remanded the matter. The order of remand is hit by rules 23 and 25 of order 41of the Civil Procedure Code.

14. It has also been submitted that once the entire evidence was available or record, the first appellate court was required to decide the matter finally, one way from the other but it unnecessarily remanded the matter to the trial court. The order of remand should therefore have been set aside by the Board of Revenue but this aspect has wronglyand illegally been ignored while rejecting revision filed by the pet