Liladhar vs Board of Revenue U.P. at Allahabad

Prakash Krishna, J.—Heard learned counsel for the parties.

By means of the present writ petition, the petitioner has sought relief for quashing of the order and judgment dated 11.07.1985 passed by the Board of Revenue U.P. at Allahabad in Second Appeal No.64 of 1982-83.

Jeewa Ram father of the petitioner instituted Original Suit No.29 of 1979 u/s 229-B of the U.P.Z.A. & L.R. Act against the defendants who are respondents herein for declaration of his right in respect of plots as mentioned in the plaint on the pleas inter alia that the said plots belong to Ghan Shaym who has died issueless. The petitioner claims that he being the nearest heir of Ghan Shyam is entitled to succeed the plots in question. The suit was contested by the defendant respondents on the plea inter alia that they are daughters of Ghan Shyam. The parties led their evidence in support of their respective cases.

The trial Court and the First Appellate Court as well, found that Ghan Shyam died issueless and they consequently decreed the suit. In the second appeal filed by the defendants, the appeal has been allowed on the ground that the suit is barred by Section 34 of the Specific Relief Act. Challenging the said judgment and order the present writ petition has been filed.

Heard Sri Vishal Khandelwal, learned counsel for the petitioner and Sri V.D.Ojha, learned counsel for the contesting respondents.

The learned counsel for the petitioner submits that it was not the case of the defendants that they in occupation of the land in question and as such there was no need for him to have obtained a decree for possession. Reference was made to paragraph 7 of the plaint and its reply in the written statement. Learned counsel for the respondents on the other hand supports the impugned judgment and order.

I have considered the respective submissions of the learned counsel for the parties and perused the record.

In paragraph 7 of the plaint it has been stated in so many words that the plaintiff is in occupation of the land in question. The said pleadings have not been denied or controverted by the defendant respondent. In this respect no such plea as to whether the suit is barred by section 34of the Specific Relief Act was raised either before the trial court or before the first appellate Court. In this factual scenario it was not open to the Board of Revenue while hearing Second Appeal filed u/s 100 CPC to dismiss the suit on the ground that the plaintiff has not claimed the relief for possession over the disputed land.

Apart from the above, the Board of Revenue has decided the appeal without framing any substantial question of law. In view of the Section 100(4) CPC it was mandatory requirement on the part of the Board of Revenue to have framed substantial question of law involved in the appeal.

Taking into consideration the entire facts and circumstances of the case, the impugned judgment and order cannot be allowed to stand.

In the result the writ petition succeeds and is allowed. The order dated 11.07.1985 passed by the Board of Revenue in Second Appeal No.64 of 1982-83 is hereby set aside. The suit stands decreed. No order as to costs.