Dudh Nath vs State Of U.P. & Ors.

Heard Shri Ashish Jaiswal, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Shri Gajendra Pratap along with Shri H.N. Singh, learned Senior Advocates, respectively assisted by Shri Ashish Kumar Gupta and Shri Gaurang Dwivedi, both representing respondent No.3.

Though a Civil Misc. impleadment application No.4 of 2023 filed by Shri Ashish Kumar Mishra, Advocate on behalf of three persons is on record and about which observations were made in the order dated 18.08.2026 also, Shri Mishra neither appeared on the previous date nor today to press the impleadment application. The application is, therefore, rejected for want of prosecution.

The petitioner, along with two other persons, namely Ram Raj and Nanhku, instituted a Suit No. 209 of 1996 under Section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (‘the Act’) claiming a decree to the effect that the plaintiffs be declared as co-bhumidhars with the private defendants and their names be recorded as such in the revenue records. The property in dispute was described as Arazi Bandobasti No. 302/1 measuring 25 decimals and 302/2 measuring 25 decimals (total number of gatas involved being 2, measuring 50 decimals).

The suit was decreed by the Assistant Collector, Ist Division, Sadar, Varanasi on 21.02.2000 after recording a finding that despite notices issued to the defendants and served upon them, none had appeared to contest the proceedings. An appeal No. 55 of 2004 was filed against the decree by one Bhupendra Kumar (minor) S/o defendant No.1 and through his guardian/mother challenging the judgment and decree dated 21.02.2000. A restoration application was also filed by some other defendants of the suit seeking recall of the decree dated 21.02.2000. The application was rejected as not maintainable on 13.08.2007.

The Appeal No. 55 of 2004, however, was allowed on 31.01.2012 by Additional Commissioner (Administration), Varanasi Division, Varanasi; the decree dated 21.02.2000 was set aside and matter was remanded to the trial court to decide the suit on merits in accordance with law after providing opportunity to both the parties.

The defendant No.1, namely Ram Raj, after remand, filed an application dated 11.05.2012 seeking withdrawal of the suit. The application was allowed the same day and the suit was dismissed as withdrawn, however, the said order was, later on, recalled by the Sub-Divisional Officer by order dated 16.09.2016 on an application filed by the petitioner wherein stand was taken that he had not consented for withdrawal of the suit.

After remand by the first appellate court, the suit under Section 229-B was again decreed on 08.01.2019 indicating that the decree drawn earlier on 21.02.2000 was kept intact. Against the said order, one Suraj Singh filed a recall application under Order IX Rule 13 read with Section 151 C.P.C. which was rejected on 06.06.2022. A revision was filed against the said order by one Vinod Kumar Gupta (respondent No.3) in 2019, which was allowed by the Additional Commissioner by order dated 15.12.2022 whereby the order dated 08.01.2019 was set aside and the file was consigned to record. It is against the said order dated 15.12.2022 that the present writ petition has been filed.

A detailed interim order was passed by this Court on 07.04.2023 staying the effect and operation of the order dated 15.12.2022 and notice was issued to the respondent No.3 only, indicating that the other respondents being co-sharers, may not be aggrieved by the result of the writ petition. Pursuant to the aforesaid order, respondent No.3 put in appearance and filed counter affidavit, against which, rejoinder affidavit has also been filed by the petitioner.

The parties were heard at length on 22.10.2026 and judgment was reserved.

Learned counsel for the petitioner has made following submissions:-

(i). After the appeal was allowed on 31.01.2012, decree was set aside and the original proceedings under Section 229-B were restored, the property was sold by defendants to one Suraj Singh on 05.03.2012, who further sold the property in 2016 to respondent No.3-Vinod Kumar Gupta and the revision filed by the respondent No.3 being not maintainable as he was not a party to any proceedings, the order impugned is not sustainable;

(ii). The revision was, otherwise, not maintainable as the same was preferred against a decree and since Entry 34 of Schedule II of the Act provides for a remedy of statutory appeal against the decree before the Commissioner and, thereafter, second appeal before the Board of Revenue and even the first appeal was not filed in the present case;

(iii). Withdrawal of suit on 11.05.2012 by one of the plaintiffs, namely Ram Raj, was a collusive act and once the said order was subsequently recalled on 16.09.2016, whereafter the suit was restored and was again decreed on 08.01.2019, neither the recall application filed by third party, namely Suraj Singh (purchaser) nor revision filed by respondent No.3, i.e. purchaser from Suraj Singh, was maintainable, which aspect has been ignored by the revisional court and, therefore, the order impugned is liable to be set aside. In support of his submissions, learned counsel for the petitioner has placed reliance upon Raghav Chandra v. State of Uttaranchal : 2007 (102) RD 216, Udayvir and 2 others v. Board of Revenue , U.P. at Prayagraj : 2022 (7) ILR (All) 61 and Vishnu Vardhan vs State of U.P and others: 2025 (8) ADJ 181.

Per contra, Shri Gajendra Pratap and Shri H.N. Singh, learned Senior Counsel for respondent No.3 have made following submissions:-

(i). Availability of remedy of appeal against the decree creates no bar against revision as per Section 333 of the Act of 1950, which itself provides that Board or the Commissioner or Additional Commissioner may call for record of any suit or proceedings in which no appeal lies or where an appeal lies but has not been preferred. Submission, therefore, is that the revision was maintainable;

(ii). As regards locus of respondent No.3 to file revision, submission is that he is purchaser from Suraj Singh in whose favour a registered sale deed dated 05.03.2012 was executed by 14 vendors and, therefore, his rights being affected by the decree, he had every locus to assail the validity of the decree by filing revision;

(iii). The petitioner has no cause of action to claim any relief in view of the fact that immediately after the appellate Commissioner had set aside the decree on 31.01.2012, the suit property was sold by the defendants and/or their heirs to one Suraj Singh in which sale deed, all the three plaintiffs of the suit including the present petitioner, were confirming parties, i.e. to say that they put their thumb impressions and signatures on the sale deed dated 05.03.2012 mentioning that they had no concern whatsoever with the land forming subject matter of the suit. Submission, therefore, is that any proceedings undertaken by the petitioner subsequent to execution of the sale deed dated 05.03.2012 being null and void, the revisional court has rightly consigned the matter to record;

(iv). The revisional court has otherwise also not committed any error and has rightly set aside the order/decree dated 08.01.2019 by observing that since the said decree was earlier set aside on 31.01.2012 by appellate authority in Appeal No. 55 of 2004, the same could not be restored by Sub-Divisional Officer and the said act of S.D.O. being without jurisdiction, revision was rightly allowed;

(v). The sale deed dated 05.03.2012 was executed when the declaratory suit, after remand, was pending and no rights of the present petitioner were decided by that time. The purchaser through the sale deed (Suraj Singh) and purchaser from the said purchaser (respondent No.3-Vinod Kumar Gupta) being affected by the impugned decree dated 08.01.2019, the revision preferred by respondent No.3 has rightly been allowed and these persons not being strangers to the proceedings, the arguments on behalf of petitioner questioning the locus of Suraj Singh and respondent No. 3 have no force. In support of their submissions, reliance has been placed upon Baboo Ram and another v. The Commissioner Basti and others: (2020) 148 RD 1.

In rejoinder, learned counsel for the petitioner has submitted that the petitioner did not sell his share in the property and the sale deed dated 05.03.2012 having been executed inter se other parties to the suit, the same would have no adverse effect on the rights of the petitioner; that the sale deed dated 05.03.2012 does not bear the signatures or thumb impression of the petitioner and, therefore, submissions made by the respondents that the petitioner ever confirmed the sale deed execution whereof was based upon fraud on the part of parties to the sale deed, claim of the petitioner cannot be upset.

Further submission is that the revisional Commissioner has not set aside the decree in light of execution of sale deed dated 05.03.2012, rather he has erred in misinterpreting the order passed by the Sub-Divisional Officer whereby the decree which was drawn earlier has simply been reiterated and, therefore, the revision has been allowed on a technical aspect without there being any substantial reason to interfere with the order/decree dated 08.01.2019.

Lastly, it is submitted that while consigning the file to records, revisional court has, in fact, taken away the rights of the petitioner to maintain his suit under Section 229-B, which course being not available to the revisional court and, in any case, if the revisional court was inclined to set aside the decree, the suit should have been directed to be decided again and this having not been done, the order impugned cannot be sustained.

I have considered the submissions made and have perused the material available on record.

It is a fact that after the decree dated 21.02.2000 was set aside by the appellate Commissioner on 31.01.2012 and the suit was revived, the property was sold on 05.03.2012 in favour of one Suraj Singh. Copy of the sale deed was not annexed to the writ petition, however, the same has been annexed along with counter affidavit, a perusal whereof indicates that 14 persons had executed the sale deed in favour of a single person, namely Suraj Singh and 16 persons confirmed the sale in the capacity of third parties. The recitals qua confirmation of sale are contained in paragraph 6 of the sale deed, relevant part whereof reads as under:-

It is not in dispute that petitioner was one of the 16 persons who confirmed the sale and his name finds mention in the column of ‘third parties/confirming parties’ in the sale deed and though submission has been made on his behalf that transaction of sale was a fraudulent exercise, there being no lis at the instance of the petitioner assailing validity of the sale deed and/or its contents, the Court is not inclined to accept the submission that the sale deed was invalid or that the thumb impressions or signatures of the petitioner contained therein were forged.

Above recital that the third parties/confirming parties would have no concern with the land bearing Nos. 302/1 and 302/2 forming subject matter of suit under Section 229-B, which was earlier decreed on 21.02.2000, which order has been set aside on 31.01.2012, unequivocally reflects declaration made by confirming parties including the petitioner to the effect that they would have no concern, right, title or interest in the property in dispute.

The above declaration, in the opinion of this Court, constitutes a proposal or promise within the meaning of Section 2(a), 2(b) and 2 (c) of the Indian Contract Act, 1872. The said promise, when considered in the context of Section 2(e) of the Contract Act, constitutes an agreement within the meaning of the said provision. The declaration expressly disclaiming or relinquishing rights in respect of the property in dispute, constituted a communication and intention of the confirming parties to be bound by the terms so declared, thereby attracting the relevant principles embodied in Sections 4 and 7 of the Contract Act. The acceptance of the proposal, as manifested by the execution and completion of the transaction of sale incorporating the aforesaid recitals, must be regarded as having attained finality.

Further, there is nothing on record to demonstrate that the proposal or the acceptance thereof, as it relates to the declaration and relinquishment of rights by the confirming parties, was ever revoked in accordance with law. Consequently, the provisions of Sections 5 and 6 of the Act, which deal with the revocation of proposals and acceptances in the circumstances contemplated therein, would have no application to the facts and circumstances of the present case. The declaration made by the third parties must be understood in the context of the statutory conception of ‘free consent’ embodied in Sections 13 and 14 of the Contract Act.

Further no material has been brought on record to establish that the aforesaid declaration or the transaction of sale in which it was incorporated, was vitiated by ‘coercion’, ‘undue influence’, ‘fraud’ or ‘misrepresentation’, as contemplated under Sections 15, 16, 17 and 18 of the Act, respectively. In the absence of any such material and in the absence of any challenge to the validity of the sale deed or the relevant recitals in appropriate proceedings, this Court finds itself unable to accept the submissions advanced on behalf of the petitioner that, notwithstanding the unequivocal relinquishment or disclaimer of rights reflected in the instrument, the petitioner retains an independent locus standi to maintain the challenge to the order impugned.

The transaction in question, viewed in its entirety, is not a mere bilateral arrangement confined to the 14 vendors and the single vendee; rather, having regard to the participation of 16 confirming parties (including the petitioner) and the declarations made by them in the sale deed, it bears the essential character of a ‘tripartite contractual arrangement’ involving vendors, vendee and the confirming parties, each of whom is bound by the legal consequences of the terms and declarations attributable to them. The recitals concerning the relinquishment or disclaimer of rights constitute an integral part of the transaction and cannot be rendered nugatory at the instance of a party seeking to avoid their legal effect without first establishing legally sustainable grounds for doing so.

As far as submissions made by the petitioner that he had not sold his share in the property and, therefore, the sale deed dated 05.03.2012 would not be read against his claim, the Court is of the view that once the petitioner relinquished his rights, if any, qua the entire land involved in the lis, it cannot be accepted that he remained with ‘some rights’ qua the land, particularly, when the sale deed was executed at a point of time when the suit itself was, after remand by the appellate court, pending and the rights of the petitioner, if any, were not even decided by the Court.

Further, the sale deed in question was executed in the year 2012 and the petitioner, despite being aware of its execution and the contents, elected not to assail its validity before competent civil court in appropriate proceedings. In such circumstances, this Court cannot countenance an indirect or collateral challenge to the effect and operation of the sale deed, sought to be mounted after an inordinate lapse of time. The failure to pursue the appropriate civil remedy cannot be circumvented by questioning the consequential order in proceedings which do not constitute a substitute for a direct challenge to the underlying instrument.

As far as maintainability of revision filed by respondent No.3 in light of the submissions made regarding appellate remedy is concerned, the Court finds force in the submissions made on behalf of the respondents that remedy of appeal, though being available but having not been availed, revision under Section 333 would lie in a case where a Court subordinate to the revisional authority appears to have exercised a jurisdiction not vested in it by law or failed to exercise the jurisdiction so vested or acted in exercise of jurisdiction illegally or with material irregularity. This is what is clearly written by the legislature in section 333.

It further appears that the issue of maintainability of revision on the plea of availability of appellate remedy was not even raised by the petitioner before the revisional court and the parties proceeded to press and contest the proceedings treating the revision as maintainable, which otherwise also, is found by this Court to be maintainable. For this reason also, the Court is not inclined to accept the submission on behalf of the petitioner that the order impugned is liable to the set aside treating the revision as not maintainable.

It is reflected from the order dated 15.12.2022 passed by the revisional court, that the revision has been allowed on the ground that Sub-Divisional Officer did not have jurisdiction to maintain a decree which was earlier set aside by the first appellate court. It is apparent that the suit was earlier decreed ex-parte on 21.02.2000 and when the same was re-considered after remand by the appellate court, it was again decreed ex-parte on 08.01.2019, the operative portion however indicates that the decree dated 21.02.2000 was restored.

This Court is of the view that after remand, the Sub-Divisional Officer could have again decreed the suit by using a different language, such as ‘the suit is hereby decreed’; however, if he simply maintained the previous decree, the issue is only qua the language used in the operative portion of the order and, therefore, though it could not be a sufficient ground to set aside the order dated 08.01.2019, nevertheless, this mere fact would not improve the case of the petitioner whose locus in view of recitals contained in the sale deed as a confirming party, has been thoroughly examined by this Court so as to arrive at a conclusion that the petitioner cannot maintain the present writ petition, irrespective of the ground on which the revision has been allowed.

As far as submission that revisional court’s order is not based upon the execution of sale deed, the Court finds that the purchaser Suraj Singh had sought recall of the decree based upon the compromise entered into between the parties and execution of sale deed dated 05.03.2012 and though the recall application was rejected, in the revision preferred by respondent no.3-Vinod Kumar Gupta also detailed pleas and grounds were raised based upon sale deed dated 05.03.2012 and its effect. The revisional court, in paragraph No.3 of its order, has also taken note of the submissions based upon the sale deed and though the order/decree dated 08.01.2019 has been set aside on a different ground, once the entire facts have come before this Court and situation has been examined in its entirety, the Court is not inclined to exercise discretionary jurisdiction in favour of the petitioner, who did not even disclose about execution of the sale deed in the writ petition not did he annex any copy thereof.

A Division Bench of this Court in the case of Baboo Ram (supra), after placing reliance on Aligarh Muslim University v. Mansoor Ali Khan : (2000) 7 SCC 29, has reiterated the settled position of law that the High Court would be right in refusing to invoke its extraordinary discretionary powers under Article 226 of the Constitution of India to quash the order which would result in restoration of an illegal order and refusal to exercise such jurisdiction in circumstances of a particular case would be justified.

The judgment in the case of Udayvir (Supra), as relied upon on behalf of the petitioner qua the revisional power in light of remedy of appeal, is clearly distinguishable on facts, inasmuch as, in that case, an appeal was already filed under Section 331 of the Act against a decree passed under Section 229-B and, thereafter, revision was filed under Section 333 and, in that background, co-ordinate Bench of this Court, after emphasizing upon word ‘shall’ observed that it was mandatory for the concerned petitioners to have filed a second appeal, which was creation of Statute and the same having not been done, the matter was decided accordingly. Admittedly, in the present case, no appeal was preferred against the decree and, therefore, the provision as it reads, revision before the Commissioner was certainly maintainable.

The judgment in the case of Raghav Chandra (supra) wherein scope of Section 333 has been dealt with, also does not come to the benefit of the petitioner, inasmuch as, in that judgment, interference under Section 333 was sought to be confined to the extent of jurisdictional error alone, about which proposition, there is no quarrel, particularly, in view of the language used in Section 333 itself; however, when this Court has examined the facts in their entirety and has found that before the revisional court, pleas based upon the sale deed and its effect were raised and the same have been re-examined by this Court, the mere fact that revisional court interfered with the exercise of jurisdiction by the Sub-Divisional Officer, would not benefit the petitioner and in view judgment in the case of Aligarh Muslim University (supra), this Court is not inclined to revive the suit proceedings on any ground whatsoever as it would amount to revival of an illegality which is not permissible.

The judgment in the case of Vishnu Vardhan (supra) is altogether in a different context where, arising out of land acquisition proceedings and award of compensation, the matter reached to the Hon’ble Supreme Court and while remanding the matter to this Court for re-consideration, observations were made in that context only, which have no application in the facts of the present case.

As far as the last submission made on behalf of the petitioner regarding remand of suit proceedings to the first court, this Court is not inclined to accept the same for the reason that that revival of the proceedings shall be an empty formality and, even otherwise, the matter being quite old, in the sense that suit was filed in 1996, the Court is not inclined to give rise to further rounds of litigation. The legal maxim interest reipublicae ut sit finis litium applies in full force in the facts and circumstances of the present case, which means that it is in the interest of the State that there must be an end to litigation.

The Hon’ble Supreme Court, in Suvej Singh v. Ram Naresh and others : (2025) 12 SCR 584, after referring to decisions in the case of M.C. Mehta v. Union of India and others : (1996) 6 SCC 237; State of Uttar Pradesh v. Sudhir Kumar Singh and others : (2021) 19 SCC 706 and Krishnadatt Awasthy v. State of Madhya Pradesh : 2024 SCC Online SC 493, has held that higher Courts should avoid unnecessary remand which may generate fresh round of litigation. The view has been recently reiterated in Mahendra Prasad Agarwal v. Arvind Kumar Singh and others : 2026 LiveLaw (SC) 195.

In view of the above discussion, the Court does not find any good ground to interfere with the order dated 15.12.2022 or to grant any other relief claimed by the petitioner.

The petition has no substance; the same is, therefore, dismissed. Interim order dated 07.04.2023 stands discharged.