The preliminary decree under the U.P. Revenue Code is a final order determining the rights of parties, making it appealable despite being labeled interlocutory.

JUDGMENT :

(Saral Srivastava, J.)

Heard learned counsel for the petitioners and learned Standing Counsel.

2. The petitioners by means of the present petition under Article 227 of the Constitution of India have assailed the order dated 27.12.2023 passed by Additional Commissioner-II Kanpur Division, Kanpur by which he has allowed the appeal of respondent No. 5 against the order dated 6.5.2022 of Sub Divisional Magistrate, Tehsil Kayamganj, District Farrukhabad in Case No. 2053 of 2022 (Computerized Case No. T202203240202053) for preparation of the preliminary decree.

3. The brief facts of the case are that the petitioners instituted case No. 2053 of 2022 under Section 116 of U.P. Revenue Code, 2006 for partition and determination of their share concerning plots No. 82, 166 and 292 (Min.) situated in Village Papri Khurd Buzurg Pargana Shamshabad Paschim Tehsil Kayamganj, District Farrukhabad. The case of the petitioners was that the petitioners have inherited the property by succession and are owners in possession of the property.

4. It appears that a notice was issued to respondent No. 5, but respondent No. 5 did not contest the proceeding, consequently, the Sub-Divisional Magistrate proceeded ex-parte and passed an order dated 6.5.2022 determining the share of the petitioners/plaintiff and other co-tenure holders and decreed the suit, and thereafter, he prepared a preliminary decree declaring the share of the plaintiff. Accordingly, an order was passed for the preparation of Kurra in the light of the preliminary decree passed by the Sub Divisional Magistrate and respondent No. 5 was given the right to object to the preparation of Kurra.

5. Feeling aggrieved by the order dated 6.5.2022, respondent No. 5 preferred an appeal which was allowed by the appellate authority vide order dated 27.12.2023. The order dated 27.12.2023 is impugned in the writ petition.

6. Challenging the aforesaid order, learned counsel for the petitioners has contended that the order of preparation of preliminary decree dated 6.5.2022 is interlocutory, therefore, First Appeal under Section 207 of the U.P. Revenue Code, 2006 would not lie. It is submitted that the appropriate remedy for the petitioners was to file a revision under Section 210 of the U.P. Revenue Code, 2006. Thus, it is contended that since the appeal under Section 207 of the U.P. Revenue Code, 2006 against the interlocutory order is not maintainable, therefore, the order passed by the appellate authority is per se illegal and not sustainable in law.

7. To buttress the aforesaid submission, learned counsel for the petitioners has placed reliance upon Section 209 (f) of the U.P. Revenue Code, 2006 to submit that it is clear from the reading of Section 209 of the U.P. Revenue Code, 2006 that no appeal shall lie against any order or decree where such order or decree is interlocutory. Accordingly, it is submitted that since there is a specific bar of Section 209 (f) of the U.P. Revenue Code, 2006 for filing a First Appeal against the order of preliminary decree as the preliminary decree is interlocutory, therefore, the appellate authority has erred in law in entertaining the appeal.

8. It is further contended that in the instant case, it is not disputed that the order is an ex-parte order, therefore, the proper remedy for respondent No. 5 was to prefer a recall application to recall the order, and appeal would not lie because of Section 209 (f) of the U.P. Revenue Code, 2006. Accordingly, it is contended that there was an inherent lack of jurisdiction with the appellate authority to entertain the appeal, and thus, the appeal should not have been entertained and should have been dismissed by the appellate authority. In support of his contention, learned counsel for the petitioners has placed reliance upon the judgment of this Court in the case of Amarjeet v. State of U.P. through Principal Secretary Revenue, LKO and another, 2021(3) ADJ 312 (LB).

9. Per contra, learned Standing Counsel would contend that t