Surendra Deo vs Board of Revenue at Allahabad & Ors.

Hon'Ble Arun Kumar, J.

Heard Sri Abhishek Kumar, learned counsel for the petitioner, learned Additional Chief Standing Counsel for the State respondent nos.1, 6 and 7, Sri Pradeep Verma, learned counsel for the respondent no.4, and Sri Amit Gupta, holding brief of Sri B. K. Tripathi, learned counsel for the respondent no.8, Gaon Sabha.

The petitioner, has invoked the jurisdiction of this Court under Article 226 of the Constitution of India principally seeking a writ in the nature of prohibition restraining the Board of Revenue, Uttar Pradesh, Prayagraj, arrayed as respondent no.1, from proceeding with Revision No. REV/1549/2025, Rajendra Deo and others Vs. State of U.P. and others, instituted under Section 210 of the Uttar Pradesh Revenue Code, 2006 (hereinafter referred to as “the Code”). The petitioner has also assailed the order dated 20.05.2025 passed by respondent no.1 in the said revision, whereby the revision has been entertained, the record has been summoned and the operation of the judgment and decree dated 22.06.2022, passed by the Sub-Divisional Officer, Pindra, District Varanasi in proceedings under Section 116 of the Code, has been stayed and the parties have been directed to maintain status quo.

The relevant averments and the relief sought in the writ petition disclose that the principal grievance of the petitioner is that the revisional authority has assumed a jurisdiction which, according to him, is not available where the decree is appealable under Section 207 of the Code.

The facts, so far as they are necessary for deciding the controversy raised in the present writ petition, are that the petitioner and the private respondents are co-sharers in the land comprised in Khata No. 418 and other holdings situated in village Badagaon, Pargana Kolasla, Tehsil Pindra, District Varanasi. That the property is joint ancestral property and on account of disputes relating to division and separate enjoyment of the respective shares, he instituted proceedings under Section 116 of the Code. The petitioner claimed one-third share in the holding and claimed an oral family settlement which was reduced in writing on 21.05.2011. The memorandum of family settlement was also made part of the record.

The case was initially registered as Suit No. 1596 of 2020 and subsequently allotted Case No. 02327 of 2020/Computerized Case No. T202014700202327. The petitioner asserts that the contesting respondents entered appearance and filed a written statement admitting the share claimed by him and agreeing to division of the holding. A preliminary judgment and decree is stated to have thereafter been passed on 17.08.2020 determining the respective shares.

The petitioner further states that pursuant to the preliminary decree, the kurra/lots was prepared and the coloured map was submitted on 16.06.2022. The final judgment and decree was passed on 22.06.2022, on the basis of the preliminary decree and the lots placed before the Sub-Divisional Officer.

The private respondents thereafter filed an application for restoration/recall against the decree dated 22.06.2022. The restoration application was filed on 28.11.2023. During the pendency of that application, the contesting respondents instituted Revision No. REV/1549/2025 before the Board of Revenue under Section 210 of the Code.

The Board of Revenue, by order dated 20.05.2025, summoned the record, issued notice and stayed the effect and operation of the decree dated 22.06.2022, besides directing the parties to maintain status quo. The petitioner challenges this order principally on the ground that the Board had no jurisdiction to entertain the revision at all.

It further appears from the pleadings that the restoration application filed by the contesting respondents came to be dismissed by the court of first instance on 09.06.2025, on the ground of the pendency of the revision.

Learned counsel for the petitioner has submitted that the entire revisional proceeding before respondent no.1 is without jurisdiction. The submission proceeds principally on the statutory scheme governing proceedings under Section 116 of the Code. It is urged that the final judgment and decree passed in a suit for division of holding is a final decree and is appealable under the provisions contained in Section 207 read with the Third Schedule to the Code. Therefore, the essential jurisdictional condition in Section 210 that the suit or proceeding must be one “in which no appeal lies”, is not satisfied.

Learned counsel has further submitted that Section 210, as it presently stands, cannot be invoked in a case where an appeal lies against the order or decree sought to be revised. The expression “in which no appeal lies” is, according to learned counsel, a condition precedent to the assumption of revisional jurisdiction and not merely a procedural consideration which may be examined after the revision has been entertained.

Learned counsel has placed particular emphasis upon the fact that the impugned order dated 22.06.2022 is a final decree in proceedings under Section 116, and submits that the statutory appellate hierarchy cannot be bypassed by invoking Section 210. It is contended that if the decree is appealable, the Board of Revenue cannot assume revisional jurisdiction over it.

An important submission advanced on behalf of the petitioner, and one which requires consideration in the context of Section 209(h), is that the respondents cannot overcome the appellate remedy merely by describing the decree as “exparte”. Learned counsel has invited the attention of the Court to the precise language of Section 209. It is submitted that although the opening words of Section 209 state that, notwithstanding Sections 207 and 208, “no appeal shall lie against any order or decree” falling within the enumerated categories, clause (h) itself qualifies the category by providing “where order has been passed exparte or by default.”

Learned counsel submits that the statutory bar under Section 209(h) is, therefore, not attracted merely because an unsuccessful party subsequently alleges that the decree was exparte. The decree must, in fact, be one which was passed exparte or by default. According to learned counsel, the petitioner’s case throughout has been that the private respondents had appeared in the proceedings, had filed their written statement and had participated in the proceedings leading to the preliminary and final decrees. The question whether their appearance or consent was genuine, whether the Vakalatnama was valid, or whether any fraud was committed cannot be assumed in favour of the respondents at the threshold.

Learned counsel has thus urged that if the decree is found to be a decree passed after participation of the parties and not exparte or by default, Section 209(h) would have no application and the appeal contemplated by Section 207 would remain available. In such circumstances, according to learned counsel, Section 210 cannot be invoked.

It has also been submitted that the expression “no appeal lies” in Section 210 must be determined by reference to the decree as it actually exists and not by reference to an allegation made subsequently by a party seeking to challenge it. The petitioner therefore seeks a prohibition against the Board from proceeding further with Revision No. REV/1549/2025.

Learned counsel has further submitted that the Board, by the order dated 20.05.2025, has not merely issued notice but has stayed the final decree and directed status quo, thereby exercising substantive jurisdiction in a matter which, according to the petitioner, is outside the revisional jurisdiction of the Board. The prayer is consequently that the Board be restrained from proceeding further and the record of the revision be consigned.

Per contra, the learned counsel appearing for the contesting respondents has opposed the writ petition. The principal submission is that the petitioner is seeking to read Section 207 in isolation and is overlooking the overriding provision contained in Section 209. Section 209 commences with the non obstante expression “Notwithstanding anything contained in Sections 207 and 208” and declares that no appeal shall lie against the categories of orders and decrees specified therein.

Learned counsel for the respondent no.4, has specifically relied upon Section 209(g) and Section 209(h). It is submitted that clause (g) covers an order or decree passed by the Court or officer with the consent of the parties, while clause (h) covers an order or decree passed exparte or by default. The submission is that if the decree dated 22.06.2022 falls within either of these statutory categories, the general appellate remedy under Section 207 is expressly excluded.

Learned counsel submits that the first proviso to Section 209(h) provides a specific remedy to a person aggrieved by an exparte or default order to seek its setting aside within thirty days. The existence of that remedy, according to learned counsel, reinforces the legislative intent that an appeal is not contemplated against an order which is actually exparte or by default.

Learned counsel has submitted that the private respondents have specifically pleaded that their appearance before the Sub-Divisional Officer was manufactured and that the decree was obtained through a false or unauthorised appearance and purported consent. The counter-affidavit alleges, amongst other things, that the Vakalatnama relied upon before the trial court did not bear the signatures of the respondents and that the respondents had not authorised the appearance attributed to them. It is also alleged that the proceedings concerning the kurra phaat were not conducted in the manner asserted by the petitioner.

Learned counsel, however, submits that these allegations are not being raised merely as allegations of fraud in the abstract. They are relied upon to demonstrate why the decree cannot be treated as an ordinary consensual and contested decree for purposes of Section 207. According to the respondents, the revision has been filed precisely because the circumstances in which the decree came to be passed are under challenge.

In support of the submission regarding Section 209(h), learned counsel for the contesting respondent has relied upon the judgment passed by this Court in the case of Smt. Shusma Devi and another v. State of U.P. and others, Matters Under Article 227 No. 2393 of 2023, Neutral Citation No. 2023:AHC-LKO:54133. It is submitted that in that case this Court recognised that Section 209(h) specifically bars an appeal where the order has been passed ex parte or by default and held, in the circumstances of that case, that the revision was maintainable.

Reliance has also been placed upon Sukhmi Lal v. State of U.P. and others, Writ-C No. 9708 of 2022, decided on 04.01.2023, Neutral Citation No. 2023:AHC-LKO:798, in which, according to the respondents, the Court left it open to the aggrieved party to pursue recall of an ex parte/default order or revision under Section 210.

Learned counsel has further relied upon Chhabilal Yadav v. State of U.P. and others, Writ-C No. 4212 of 2023, Neutral Citation No. 2023:AHC-LKO:36263, to submit that in a matter involving an ex parte order, the availability of a remedy under Section 209(h) does not preclude consideration of a revision under Section 210. The judgment, as placed before the Court, directed that a revision, if filed, could be considered and decided in accordance with law after affording opportunity of hearing to the parties.

Learned counsel has next relied upon Sampat v. State of U.P. through Collector, Balrampur and others, Writ-C No. 6526 of 2021, AIRONLINE 2021 ALL 554, wherein, according to the respondents, an order obtained on the basis of a fraudulently manufactured “not pressed” endorsement was considered in the context of Sections 209(g) and 209(h), and revision was held maintainable. The proposition relied upon is that an order passed on misrepresentation and without hearing the affected party may fall outside the appellate remedy contemplated by Section 207.

Learned counsel has also relied upon Shiv Shankar v. Board of Revenue, U.P. at Allahabad and others, Writ-B No. 34091 of 2014, Neutral Citation No. 2014:AHC:129455, referring to the settled principle that fraud vitiates judicial acts and that an order obtained by fraud may be challenged through an appropriate legal proceeding. Reliance has also been placed upon the judgment of the Hon’ble Supreme Court in the cases of A.V. Papayya Sastry and others v. Government of A.P. and others, (2007) 4 SCC 221, and S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1, for the broader proposition concerning the effect of fraud upon judicial orders.

Learned counsel has further submitted that the pendency of the restoration application before the court of first instance did not bar the respondents from approaching the revisional authority. For this proposition reliance has been placed upon the judgment of the Hon’ble Supreme Court in the case of Bhanu Kumar Jain v. Archana Kumar and another, AIR 2005 SC 626, followed by a Coordinate Bench of this Court in the case of Lalita Devi v. State of U.P. and others, Neutral Citation No. 2020:AHC-LKO:12801, the submission being that where two remedies are otherwise available and there is no statutory prohibition against their simultaneous pursuit, the mere filing of one remedy does not necessarily extinguish the other.

It has finally been urged on behalf of the contesting respondents that the allegations concerning fraud, consent, the Vakalatnama, the preparation of the kurra and the nature of the decree are matters which should be examined by the competent statutory forum and that the petitioner cannot secure a prohibition by inviting this Court to decide those matters in the present writ proceedings.

Having considered the rival submissions and the material placed on record, the principal question which arises for consideration is not whether the decree dated 22.06.2022 is ultimately valid or invalid, nor whether the allegations of fraud or consent made by the respondents are correct. The question is narrower: whether the petitioner has established such a patent and total absence of jurisdiction in the Board of Revenue that a writ of prohibition ought to be issued restraining it from proceeding with Revision No. REV/1549/2025.

For deciding this question, Sections 207, 209 and 210 of the Code assume significance.

Section 207 provides for a first appeal against a final order or decree passed in any suit, application or proceeding specified in Column 2 of the Third Schedule. Section 208 provides for a second appeal in the circumstances specified therein. The statutory scheme therefore ordinarily provides an appellate hierarchy in respect of specified final orders and decrees.

Section 210, however, is differently structured. It empowers the Board or the Commissioner to call for the record of any suit or proceeding decided by a subordinate Revenue Court “in which no appeal lies”, for the purpose of satisfying itself or himself as to the legality or propriety of the order, provided one of the jurisdictional circumstances enumerated in clauses (a), (b) or (c) exists.

The significance of the expression “in which no appeal lies” occurring in Section 210 has been explained by this Court in Mohd. Muslim v. State of U.P., 2025 (166) RD 1. The judgment explains that the statutory scheme contemplates, as a condition precedent to the exercise of revisional jurisdiction, a suit or proceeding decided by a subordinate Revenue Court in which no appeal lies. The decision also emphasises the distinction between the conditions giving rise to revisional jurisdiction and the grounds upon which that jurisdiction may thereafter be exercised. It states that the maintainability of a revision under Section 210 depends upon cumulative satisfaction of the statutory requirements, including that the impugned order must be one in respect of which no appeal lies.

Thus, the petitioner's submission that the words “in which no appeal lies” constitute a jurisdictional requirement is correct as a matter of statutory construction. But the conclusion which the petitioner seeks to draw from that proposition requires further examination.

Section 209 is headed “Bar against certain appeals.” It begins with a non obstante clause and provides:

The opening words of Section 209 are undoubtedly wide. They give the provision overriding effect notwithstanding Sections 207 and 208. But that does not mean that each of the clauses operates without reference to the conditions contained in the particular clause.

Clause (h) is materially different from a provision which simply declares that no appeal shall lie against all orders of a specified description. The legislature has used the words “where order has been passed exparte or by default.” The bar under clause (h), therefore, necessarily depends upon the order or decree having the character contemplated by the clause.

Consequently, the legal position cannot be stated as broadly as that every final decree passed in a Section 116 proceeding is necessarily appealable notwithstanding Section 209(h). Such a proposition would render clause (h) nugatory. The non obstante clause in Section 209 makes the specified categories an exception to the general appellate remedy under Sections 207 and 208.

Equally, however, the converse proposition cannot be accepted, namely, that merely because a party alleges that a decree was exparte, the decree thereby becomes an order within Section 209(h).

There is a distinction between the ‘statutory character of an order’ and an ‘allegation regarding that character’. Section 210 can be invoked only where the statutory condition that no appeal lies is satisfied. The respondents' assertion that the decree was ex parte may furnish the basis for invoking Section 209(h), but the assertion itself is not synonymous with the establishment of the fact.

This distinction assumes considerable importance in the present case because the parties are at issue on precisely this question.

The petitioner asserts that the private respondents participated in the proceedings, filed a written statement and consented to division of the holding. The respondents dispute this and allege, inter alia, that the appearance attributed to them was unauthorised and that the Vakalatnama relied upon before the court below was not executed by them. The counter-affidavit specifically questions the genuineness of the Vakalatnama and the circumstances in which the written statement and subsequent proceedings were conducted.

The respondents have further questioned the manner in which the kurra phaat was prepared and allege that the petitioner obtained an undue advantage in the partition. These allegations are strongly denied by the petitioner. The pleadings thus disclose a substantial factual dispute concerning the very circumstances in which the decree dated 22.06.2022 came to be passed.

This Court does not propose to decide that controversy. It shall not record any finding at this stage as to whether the respondents actually appeared before the Sub-Divisional Officer, whether the Vakalatnama was genuine, whether the written statement was duly authorised, whether there was consent, whether the consent was obtained by fraud or misrepresentation, whether the decree was passed ex parte or by default, or whether the kurra phaat and lots were prepared and finalised in accordance with law.

These questions may ultimately bear upon the applicability of Section 209(g) or Section 209(h), but they cannot appropriately be determined in the present writ petition merely for the purpose of deciding whether a writ of prohibition should issue.

The decision relied upon by the respondents in Smt. Shusma Devi (supra) is consistent with the statutory proposition that where an order is in fact ex parte or by default, Section 209(h) bars an appeal and revision under Section 210 may consequently be maintainable. The judgment, however, does not warrant the proposition that an allegation of ex parte proceedings is itself sufficient to establish the statutory bar.

Similarly, the decisions in Sukhmi Lal (supra) and Chhabilal Yadav (supra) recognise the availability of appropriate statutory remedies in cases involving exparte/default orders. They do not require this Court, in a proceeding for prohibition, to adjudicate a disputed question as to whether the underlying order was actually exparte.

The decision in Sampat (supra) also cannot be read as dispensing with the necessity of establishing the factual foundation for the operation of Section 209(g) or (h). It concerned an order which was challenged on the ground of misrepresentation and fraud, and the Court considered the consequences flowing from the circumstances established in that case. Its relevance here is confined to the proposition that an order obtained by circumstances falling within Section 209(g)/(h) may stand outside the appellate remedy and consequently be amenable to revision.

Another decision of this Court in the case of Ritesh Agrawal v. Commissioner, Devi Patan Mandal, 2024 (163) RD 1, also requires to be understood in its factual setting. That case concerned an interim order passed in proceedings under Section 116 whereby the parties were directed to maintain status quo. The Court held that the particular order fell within Order XXXIX Rules 1 and 2 of the Code of Civil Procedure and was therefore appealable under Section 207; consequently, the revision under Section 210 was held not maintainable.

The said decision, therefore, does support the general proposition that where an appeal lies, the condition in Section 210 is not satisfied. But it does not establish that Section 209(h) can never apply to a final decree. In Ritesh Agrawal (supra), the character of the particular interim order was examined and the Court found an appellate remedy. The present case is different because the respondents invoke the specific exception contained in Section 209(h) and the applicability of that exception itself is disputed.

The statutory position may thus be summarised in the following manner. Section 207 provides the general appellate remedy against specified final orders and decrees. Section 209 creates statutory exceptions to that appellate remedy notwithstanding Sections 207 and 208. Section 210, in turn, operates where the proceeding is one in which no appeal lies and the further conditions prescribed by that section are satisfied.

Accordingly, a final decree passed in proceedings under Section 116 cannot be said to be outside Section 210 merely because, viewed in isolation, it is a final decree against which Section 207 ordinarily provides an appeal. If the decree falls within Section 209(g) or Section 209(h), the legislative bar against appeal becomes relevant.

But that does not mean that the Board can conclusively establish its jurisdiction merely by accepting an allegation that the decree was consensual, exparte or by default. The Board has to examine the statutory objection as to maintainability in the light of the record and the rival pleadings.

The question whether the decree dated 22.06.2022 was actually passed exparte or by default, within the meaning of Section 209(h), is therefore material. The language of Section 209(h) does not permit the Court to dispense with that inquiry.

The same is true of Section 209(g). If the decree was in fact passed with the consent of the parties, the statutory bar under clause (g) would have to be considered. If consent is disputed, the factual and legal foundation for invoking clause (g) would have to be examined by the competent forum.

The Court therefore declines to accept either extreme position advanced before it. The petitioner's proposition that a final decree in a Section 116 proceeding is necessarily appealable in all circumstances and can therefore never be revised under Section 210 is too broad because it ignores Section 209. The respondents' proposition that the revision is conclusively maintainable merely because they allege that the decree was exparte or fraudulently consented to is equally too broad because the applicability of Section 209(g) or (h) depends upon the underlying facts.

The nature of the present writ jurisdiction also assumes significance. The petitioner seeks a writ of prohibition. Such a writ is preventive and is ordinarily issued where the subordinate court or tribunal is proceeding wholly without jurisdiction or proposes to exercise a jurisdiction which the law does not confer upon it.

In the present case, the petitioner has not demonstrated a situation in which the absence of revisional jurisdiction is so patent that no further examination by the statutory authority is permissible. The Board has been approached under Section 210 on the specific premise that, having regard to Section 209(g) and/or Section 209(h), no appeal lies against the decree in question.

Whether that premise is ultimately correct is a matter which the Board is competent to consider in the first instance. This Court would not be justified in issuing prohibition by itself deciding the disputed question whether the decree was exparte, by default or consensual.

The principle stated in Mohd. Muslim (supra) is instructive in this regard. Section 210 contains both the condition which gives rise to revisional jurisdiction and the grounds upon which such jurisdiction may be exercised. The existence of the former must be established, but the present writ petition does not require this Court to finally pronounce upon that disputed factual foundation when the statutory authority is already seized of the revision.

The Court is also not persuaded to accept the submission that the filing of the restoration application before the Sub-Divisional Officer, by itself, renders the revision incompetent. The authorities relied upon by the respondents, including Bhanu Kumar Jain (supra) and Lalita Devi (supra), were cited for the proposition that the existence of another remedy does not necessarily exclude a remedy otherwise available in law where there is no statutory prohibition against pursuing both. That question, however, need not be finally decided in the present writ petition because the principal issue remains the statutory requirement in Section 210 that no appeal should lie.

The general principle that fraud may vitiate a judicial order does not, by itself, answer the statutory question whether Section 209(g) or Section 209(h) applies to the particular decree.

It is consequently neither necessary nor appropriate for this Court to enter into the allegations made by the respondents concerning the alleged unauthorised Vakalatnama, manufactured appearance, alleged false consent, the family settlement, the preparation of the kurra, the allotment of particular portions of land, or the alleged conduct of the parties before or after the decree. These matters are expressly left open.

In particular, nothing in this judgment shall be construed as holding that the decree dated 22.06.2022 was passed exparte or by default within the meaning of Section 209(h). Equally, nothing in this judgment shall be construed as holding that the decree was passed with the consent of the parties within the meaning of Section 209(g).

The Court also does not express any opinion upon the allegations that the Vakalatnama was fictitious, that the written statement was unauthorised, that the proceedings were manipulated, that the kurra phaat was illegal or that the petitioner procured an unfair allotment. Those matters are the subject of controversy before the statutory forums and shall be dealt with by the authority competent to decide them.

What follows from the above discussion is that the petitioner has not established the patent and total absence of jurisdiction which alone would justify interdiction of the pending statutory proceeding by a writ of prohibition.

At the same time, this Court considers it appropriate to clarify that the refusal to issue prohibition is not a declaration that Revision No. REV/1549/2025 is finally maintainable. The Board of Revenue shall independently consider the preliminary objection regarding maintainability in the light of Sections 207, 209(g), 209(h) and 210 of the Code.

In doing so, the Board shall consider whether the decree dated 22.06.2022 is, on the basis of the record, an order or decree against which an appeal lies under Section 207 or whether, by reason of the actual circumstances in which it was passed, the case falls within Section 209(g) or Section 209(h). Only thereafter shall the Board proceed to examine the other requirements of Section 210.

This course is also consistent with the legislative structure. Section 210 does not confer an unrestricted appellate jurisdiction upon the Board. It is a revisional jurisdiction conditioned by the statutory requirement that no appeal lie and by the jurisdictional circumstances specified in clauses (a), (b) and (c).

The Court therefore does not accept the petitioner's prayer that the Board should be prohibited from even examining Revision No. REV/1549/2025. The petitioner may, however, raise before the Board all objections available to him regarding the applicability of Section 209, the existence of an appellate remedy and the fulfillment of the conditions of Section 210.

The Board shall decide those objections in accordance with law and on the basis of the record, without being influenced by any observation made in the present judgment.

For the reasons aforesaid, the petitioner has failed to establish that respondent no.1, Board of Revenue, Uttar Pradesh, Prayagraj, is proceeding in Revision No. REV/1549/2025 in a manner which is demonstrably and wholly without jurisdiction so as to warrant issuance of a writ of prohibition.

The writ petition is, accordingly, disposed of with the following directions:

The prayer for issuance of a writ of prohibition restraining respondent no.1 from proceeding with Revision No. REV/1549/2025 is rejected.

The Board of Revenue shall consider and decide, in accordance with law, the objection regarding maintainability of the revision, including the applicability of Sections 209(g), 209(h) and 210 of the U.P. Revenue Code, 2006.

While considering Section 209(h), the Board shall bear in mind that the statutory bar against an appeal under that clause is attracted where the order or decree has in fact been passed exparte or by default. The mere assertion of a party that the order was exparte shall not, by itself, be treated as conclusive of the question.

Similarly, the applicability of Section 209(g) shall be determined upon consideration of whether the order or decree was in fact passed with the consent of the parties.

Nothing contained in this judgment shall be construed as a finding that the judgment and decree dated 22.06.2022 was passed exparte, by default or with the consent of the parties.

No finding is recorded by this Court upon the allegations of fraud, misrepresentation, unauthorised appearance, genuineness or otherwise of the Vakalatnama or written statement, validity of the family settlement, preparation or validity of the kurra phaat/lots, allotment of particular parcels, or any alleged manipulation of the proceedings before the Sub-Divisional Officer.

All such questions are expressly left open for consideration by the competent authority in the pending statutory proceedings.

The Board of Revenue shall decide the question of maintainability and thereafter the revision, if found maintainable, strictly in accordance with law and after affording due opportunity of hearing to all concerned parties, within a period of six months from the date of the production of the certified copy of this order.