The provisions of C.P.C. are applicable to proceedings under Section 176 of the U.P.Z.A. & L.R. Act, and failure to frame issues and grant an opportunity for cross-examination can vitiate the trial.

JUDGMENT :

1. Heard Sri R.R. Upadhyay, learned counsel for the petitioner. Learned Standing Counsel for the State-respondents and Sri Sudhakar, the respondent no. 5 in person.

2. By means of the present petition, the petitioner assails the impugned judgment dated 15.03.2021 passed by the Board of Revenue in a Second Appeal preferred by the petitioner whereby the appeal was dismissed and the order dated 25.02.2019 passed by the Additional Commissioner (Administration) Ayodhya whereby the first appeal preferred by the petitioner was dismissed and the judgment dated 03.03.2018 passed by the SDO, Sadar, District Ayodhya has been affirmed as a result a suit filed under Section 176 of the Uttar Pradesh Zamindari and Land Reforms Act seeking division of the land holding by the respondent stood decreed.

3. The learned counsel for the petitioner has primarily raised a three pronged submission which is noted as under:-

(i) that the Board of Revenue while exercising powers under Section 331 of the U.P.Z.A. & L.R. Act entertains a second appeal which is akin to an appeal as provided under Section 100 C.P.C. and thus without framing a substantial question of law, the appeal has been heard and decided.

(ii) That the three courts have committed a manifest error in ignoring that a suit filed under Section 176 of the U.P.Z.A. & L.R. Act partakes the nature of a regular suit where the provisions of the Code of Civil Procedure, 1908 are squarely applicable and thus without framing issues in a contested matter the Courts have erred which has resulted in sheer miscarriage of justice as the petitioner has been gravely prejudiced and was not even afforded an opportunity of proper hearing which has vitiated the trial.

(iii) The three courts have further erred and the entire trial was vitiated for the reason of non-framing of the issues, the petitioner was not granted any opportunity to lead the evidence, coupled with the fact that the alleged evidence which was filed by the private respondent no. 5 to that the petitioner was not granted any opportunity to cross-examine the said witnesses and thus there has been a complete miscarriage of justice and the orders impugned are bad.

4. Sri Sudhakar, the respondent no. 5 appearing in person submits that the instant petition is nothing but an abuse of process of law. It is urged that the petition has been preferred by Sri Kamlakant, however, the affidavit in support of the petition has been filed by Sri Nishakar Tripathi who is the son of the petitioner.

5. It is further stated that though the affidavit has been filed by Sri Nishakar Tripathi but the petition as well as the accompanying affidavit clearly indicates that it has been signed as Nibhakar Tripathi. It is most unusual that a person who is named and known as Nishakar Tripathi would sign as Nibhakar Tripathi (not knowing his own name). This creates doubt on the institution of the petition itself.

6. The respondent no. 5 in person further submits that the petitioner is adopting all dilatory tactics to assure that the answering respondent did not get any justice, inasmuch as, admittedly, the property in question belonged to Sri Kamal Nayan who is the father of the petitioner and the grand-father of the answering respondent. In respect of the property in question, both the petitioner and the answering respondent have equal half share and this has been adjudicated by the Courts below and in view of the aforesaid, the alleged plea raised by the petitioner regarding procedural lapses during the trial are a feeble plea which has not caused any prejudice to the petitioner rather miscarriage of justice is being artificially projected by the petitioner without any substantive prejudice being caused.

7. It is also urged that the answering respondent had instituted the suit seeking division of the land holding in the year 2012 and though the suit ought to have been decided within a period of six months, yet it took the petitioner seven years just to file his writt