Court No. - 52

Case :- WRIT - B No. - 768 of 2022

Petitioner :- Bechu And 4 Others

Respondent :- Board Of Revenue And 12 Others

Counsel for Petitioner :- Sudhanshu Pandey

Counsel for Respondent :- C.S.C.,Anup Kumar Srivastava,Balendra Deo Misra,Kaushlendra

Pratap Singh,Pradeep Kumar Singh,Sanjay Kumar Singh

Hon'ble Chandra Kumar Rai,J.

Heard Sri Sudhanshu Pandey, learned counsel for the petitioners, Sri

B.D. Misra, counsel for respondent nos. 4 & 5, Sri Pradeep Kumar Singh,

counsel for respondent - Gaon Sabha and Sri Kaushlendra Pratap Singh,

counsel for respondent nos. 10 & 11.

The brief facts of the case are that a suit under Section 229-B of the U.P.

Z.A. & L.R. Act was filed by contesting respondents on 16.8.2011 for

declaration in which petitioners were defendants. Trial Court vide

judgment and decree dated 4.10.2021 dismissed the plaintiff's suit as

barred by Section 49 of the U.P. C.H. Act as well as not maintainable.

Against the judgment and decree dated 4.10.2021, plaintiff-respondent

nos. 4 & 5 filed appeal under Section 331(3) of the U.P. Z.A. & L.R. Act

before the Commissioner which was dismissed vide judgment and

decree dated 10.2.2022. Against the judgment and decree of the courts

below dated 10.2.2022, plaintiff-respondent nos. 4 & 5 filed Second

Appeal No.432 of 2022 before this Court under Section 208/2006 and

Board of Revenue vide order dated 15.3.2022, without admitting the

appeal and without formulating the substantial questions of law, has

granted interim order dated 15.3.2022, hence this writ petition.

This Court while entertaining the writ petition has passed the following

interim order dated 5.5.2022:

"The petitioners have preferred the present writ petition with the

prayer to quash the order dated 15.03.2022 passed by the Board of

Revenue at Allahabad/respondent No.1 in Second Appeal No.432 of

2022 (Computer Case No.AL2022053100432) (Deenanath & others Vs.

Additional Commissioner & others).

It is argued by learned counsel for the petitioner that while granting

interim protection, substantial question of law were not framed. He

also relied upon a judgement of the Hon'ble Apex Court passed in the

case of Raghavendra Swami Mutt Vs. Uttaradi Mutt reported in AIR

2016 SC 1589 The relevant paragraph of the aforesaid judgement is

reproduced below:-

"However, the High Court granted interim order by staying the

execution of the decree It is against the said order granting interim

relief the respondent in the second appeal has preferred this appeal.

This Court, on a number of occasions, has repeatedly held that the

High Court acquires jurisdiction to decide the second - appeal or deal

with the second appeal on merits only when it frames a substantial

question of law as required to be framed under Section 100 of the

Civil Procedure Code. In the present case, what we find is that the

High Court granted interim order and thereafter fixed the matter for

framing of question of law on a subsequent date. This was not the

way to deal with the matter-as contemplated under Section 100 CPC.

The High Court is required to frame the question of law first and

thereafter deal with the matter. Since the High Court dealt with the

matter contrary to the mandate enshrined under Section 100 CPC,

the impugned order deserves to be set aside."

Matter requires consideration.

Learned Standing Counsel accepted notice on behalf of respondent

Nos.1, 2, 3, 13 & 14 and Sri Vibhu Rai, learned counsel for respondent

No.12.

Issue notice to respondent Nos.4 to 11, returnable at an early date.

Steps be taken within ten days.

List on the date fixed in the notice.

Till the next date of listing, effect and operation of the order dated

15.03.2022 passed by Board of Revenue shall remain stayed."

Counsel for the petitioners submitted that the Board of Revenue, without

admitting the Second Appeal and without formulating the substantial

questions of law, has illegally passed the interim order which is against

the pr