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IN THE HIGH COURT OF ALLAHABAD
MANISH KUMAR NIGAM, J.
Mahendra Singh – Petitioner
Versus
State of Uttar Pradesh and Others – Respondents
Writ (B) No. 1328 of 2024
Decided On : 30-04-2024
Writ Petition - Partition and Consolidation of Holdings - U.P.Z.A. & L.R. Act, Section 176; U.P.C.H. Act, Section 5(2) - The court discussed the provisions of the U.P.Z.A. & L.R. Act regarding partition suits and the U.P.C.H. Act concerning the abatement of proceedings during consolidation operations. It interpreted that restoration applications for ex-parte decrees are maintainable even if consolidation operations have begun, emphasizing that such applications do not adjudicate rights but merely address procedural issues. This interpretation influenced the court's decision to uphold the Board of Revenue's orders.
Fact of the Case:
The petitioner filed a partition suit under Section 176 of the U.P.Z.A. & L.R. Act, which was decreed ex-parte. After consolidation operations began, the respondent filed a restoration application to recall the ex-parte decree, which was allowed, leading to a series of appeals and revisions culminating in the Board of Revenue's orders that reinstated the ex-parte decree and abated the suit.
Finding of the Court:
The court found that the restoration application was maintainable despite the ongoing consolidation operations. It held that the abatement of the suit was valid under the U.P.C.H. Act, and the orders of the Board of Revenue were justified in allowing the restoration application and setting aside previous orders.
Issues: Whether the restoration application was maintainable despite the consolidation operations and whether the orders passed by the Board of Revenue were valid.
Ratio Decidendi: The court established that restoration applications for ex-parte decrees do not adjudicate rights and are not subject to abatement under the U.P.C.H. Act, allowing such applications to proceed even during consolidation operations.
Final Decision: The writ petition was dismissed as it lacked merit, affirming the Board of Revenue's orders and the abatement of the suit.
JUDGMENT :
MANISH KUMAR NIGAM, J.
1. Heard learned counsel for the parties and perused the record.
2. This writ petition has been filed for the following relief:
3. Brief facts of the case are that the petitioner filed a suit under Section 176 of the U.P.Z.A. & L.R. Act for partition against the respondent no. 7, the brother and co-tenure holder of the land in dispute. The aforesaid suit was decreed ex-parte on 30.01.1993, and a preliminary decree was passed. After that, by order dated 30.03.1994, a final decree was also passed. After the passing of the final decree, consolidation operations began in the village concerned on 05.08.1995. After coming to know about the ex-parte decree, a restoration application was filed by the respondent no 7 on 10.09.1999 for recalling the orders dated 30.01.1993 and 30.03.1994 passed by the trial court. The restoration application was allowed by the Court concerned by an order dated 23.12.1999. Since, in the meantime, consolidation operation began in the village involved, the proceedings of the suit were also abated by an order dated 23.12.1999. After the order dated 23.12.1999 was passed, allowing the restoration application and abating the suit, a recall application was moved by the petitioner on 05.12.2006. During this period, the property in dispute was sold by the respondent no. 7 in favour of respondent nos. 5 and 6. The restoration application filed by the petitioner was allowed by order dated 24.08.2007 passed by S.D.M. Sambhal, and the order dated 23.12.1999 passed by the then S.D.O. Sambhal allowing the restoration application was set aside. On 01.09.2007, a review application was filed by respondents nos. 5 and 6 to review the order dated 24.08.2007, which was allowed by the S.D.O., Sambhal, by its order dated 26.07.2010. By the order dated 26.07.2010, the earlier order dated 24.08.2007 was set aside, and the order dated 23.12.1999 was restored. Against the order dated 26.07.2010, the petitioner filed an appeal (Appeal No. 23 of 2009-10) before the Deputy Commissioner, Moradabad. The said appeal was allowed by order dated 15.12.2010, setting aside the order dated 26.07.2010 and order dated 23.12.1999. The order dated 24.08.2007 was restored. Against the order dated 15.12.2010 passed by the Deputy Commissioner Moradabad, respondents nos. 5 and 6 filed Revision No. 41 of 2010/11, which was allowed by the Board of Revenue by its order dated 02.11.2023. The Board of Revenue set aside the order dated 15.12.2010 passed by Deputy Commissioner, Moradabad, Mandal-Moradabad, the order dated 26.07.2010, 24.08.2007 and 23.12.1999 passed by the S.D.O., Sambhal. The Board of Revenue held that orders dated 30.01.1993 and 30.03.1994 and the orders passed by the Consolidation Courts will remain intact. Both parties were given the liberty to raise the matter before the consolidation courts. Against this order dated 02.11.2023, a modification application was filed by respondent nos. 5 and 6, and the modification application was allowed by the Board of Revenue by order dated 11.12.2023. The Board of Revenue modified its earlier order dated 02.11.2023 to the extent that the Board of Revenue has set aside the order dated 15.12.2010 passed by the Deputy Commissioner, Moradabad and permitted the parties to raise their claim before the consolidation courts. The present writ petition has been filed against the orders dated 11.12.2023 and 02.11.2023 passed by the Board of Revenue.
4. The contention of learned counsel for the petitioner is that the order dated
Restoration applications for ex-parte decrees are maintainable and do not abate under the U.P.C.H. Act, even if consolidation operations are ongoing.
Restoration applications under CPC do not abate under Section 5(2) of the Consolidation Act, allowing for adjudication on merits.
A suit for declaration under Section 144 of the U.P. Revenue Code cannot be decided without framing issues and allowing evidence, and orders passed without jurisdiction are nullities.
The Deputy Director of Consolidation's remand for a fresh hearing was justified to ensure fairness, given the significant delay and procedural irregularities in prior decisions.
The court emphasized the necessity of a fair hearing in legal proceedings, ruling that ex-parte orders and technical rejections of applications cannot deny substantive justice.
The right of appeal is a vested right which accrues to the litigant from the date the proceedings commenced and continues till the proceedings are finally decided. The deeming clause in Section 52(2)....
The court emphasized that rival claims based on wills must be adjudicated on merit, and technical dismissals should not prevent fair hearings.
The court ruled that title objections under the U.P. Consolidation of Holdings Act must be decided on merit, emphasizing the need for proper jurisdiction and evidence rather than relying on alleged c....
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