High Court

1. Heard Mr. Sunil Kumar Mishra, learned counsel for the petitioner, Mr. Santosh Kumar Shukla, learned counsel for the respondent no.4, learned Standing Counsel for the State-respondents and Mr. Pradeep Singh, learned counsel for the respondent- Gaon Sabha.

2. Brief facts of the case are that the suit for partition under Section 116 of the U.P. Revenue Code, 2006 was filed by the petitioner impleading respondent no.4 as defendant. Plaintiff and defendant are real brothers. Preliminary decree for 1/2 share each to plaintiff and defendant was passed by trial Court. In pursuance of the preliminary decree, kurra was prepared and objection was invited. The kurra prepared by the lekhpal was confirmed. Petitioner challenged the decree dated 19.12.2021 passed by the trial Court in appeal before the Commissioner. The appeal was dismissed by the Commissioner vide judgement dated 11.7.2022. Against the judgment and decree passed by the trial Court/ first appellate Court, second appeal along with stay application has been filed before respondent no.2/ Board of Revenue. Board of Revenue has not disposed of the stay application, accordingly, petitioner filed Writ- B No.2972 of 2024 before this Court, which was disposed of vide order dated 17.9.2024 directing the Board of Revenue to decide the stay application in the light of the ratio of law laid down by this Court in Mool Chandra Yadav Vs. Raja Buland Sugar Company Limited reported in 1982, Volume (3) SCC 484, Board of Revenue has decided the stay application vide order dated 3.12.2024 by which stay application filed by the petitioner in support of second appeal has been rejected, hence this writ petition on behalf of the petitioner for the following reliefs: "i. issue a suitable writ order in the nature of certiorari quashing the impugned order dated 3.12.2024 passed in stay application in Second Appeal No.2301 of 2022 (Computerized Case No.AL20221667002301), Mata Harsh vs. State of U.P. and others under Section 208 of U.P. Revenue Code, 2006. ii. issue a suitable writ order or direction in the nature of mandamus commanding upon the respondents not to dispossess the petitioner over the land in dispute and maintain the status quo till the disposal of the Second Appeal No.2301 of 2022, Computer Case No.AL20221667002301 (Mata Harsh vs. State of U.P. and Others, under Section 208 of U.P. Revenue Code, 2006."

3. Learned counsel for the petitioner submitted that the kurra was prepared by Lekhpal in illegal and arbitrary manner. He further submitted that opportunity to examine the Lekhpal was not given to petitioner, as such, the kurra prepared by the Lekhpal cannot be confirmed. He further submitted that the first appeal filed by the petitioner was initially entertained and interim order was granted but by final order, the first appeal has been dismissed. He further submitted that the second appeal has been filed along with the prayer for interim relief but under the impugned order the application for interim relief has been rejected without considering the case of the petitioner in the light of the ratio of law laid down by Hon'ble Supreme Court in Mool Chandra Yadav (supra). He further submitted that appropriate directed be issued for expeditious disposal of pending second appeal and till the disposal of second appeal, the parties be directed to maintain status quo.

4. On the other hand, learned counsel for respondent no.4 submitted that the Board of Revenue has properly considered the prima-facie case while considering the application for interim relief filed by the petitioner. He further submitted that the Board of Revenue has rejected the application for interim relief recording the finding of fact that petitioner and respondent no.4 are real brothers, as such, both are entitled to 1/2 share and the lekhpal has properly prepared the kurra according to the provisions contained under U.P. Revenue Code Rules, 2016. He further submitted that there is no illegality in the order rejecting the interim relief prayed by the petitioner in second appeal. He further submitted that second appeal is pending, as such, the petitioner should press his second appeal in accordance with law rather writ petition before this Court.

5. I have considered the argument advanced by learned counsel for the parties and perused the records.

6. There is no dispute about the fact that second appeal filed by the petitioner arising out of proceeding under Section 116 of U.P. Revenue Code, 2006 is pending before the Board of Revenue / respondent no.2 and the application for interim relief has been rejected under the impugned order dated 3.12.2024.

7. In order to appreciate the controversy involved in the matter, perusal of the order passed by the Board of Revenue rejecting the application for interim relief in second appeal will be relevant which is as under: " नययययलय शश ओम पकयश रयय, मयननशय सदसय, मणडलल- ववनधययचल, जनपद:- रयजसव पररषद, उ०प०, भददहश गयम - शशपपर पययगरयज वयद ससखयय:- SA /2301/2022/ भददहश परगनय भददहश कमपययटरशकक त वयद ससखयय:- AL20221667002301 मयतय हषर बनयम सरकयर आवद असतगरत धयरयल- 208, उतर पददश रयजसव ससवहतय - 2006 आददश वतथथ:- 03/12/2024 आददश उपरदक वदतशय अपशल मम मय० उचच नययययलय कद समक वदतशय अपशलयथर दयरय ररट ययवचकय ससखयय 2972/2024 यदथजत कक गई थजसमम मय० उचच नययययलय दयरय अपनद आददश वदनयसक 17.09.2024 मम यह आददश पयररत वकयय गयय हह वक सथगनयददश पर एक मयह कद भशतर आददश पयररत करम। अतल मय० उचच नययययलय कद आददश कद अनपपयलन मम उभयपकक कद सथगनयददश पयथरनय पत पर सपनय गयय एवस पतयवलश कय पररशशलन वकयय गयय। पतयवलश कद अवलदकन सद सपष हह वक उक ववभयजन वयद मम अपशलयथर एवस ववपकश ददनक सगद भयई हह तथय ददनक कय 1/2, 1/2 वहससय वववयवदत आरयजश मम हह। ददनक वयवकयक दयरय वववयवदत आरयजश पर मकयन वनवमरत वकयय गयय हह। उतर तरफ वदतशय अपशलकतयर कय मकयन ससथत हह इसशथलए उसद उतर कक तरफ कक भयवम दश गई हह तथय दवकण कक तरफ ववपकश ससखयय 3 मयतयफल कय मकयन हह, इसथलए उसद दवकण कक तरफ भयवम दश गई हह तथय मसनदर कय रकबय वनकयल कर कप रयरफयट बनययय गयय हह। मयतयहषर दयरय थसववल नययययलय मम ववपकश ससखयय 3 ववरद पयथरनय पत यदथजत वकयय गयय थय और उनहम वनमयरण सद रदकनद हदतप पयथरनय कक गयश थश। थसववल नययययलय कद आददश वदनयसक 09.02.2021 सद वदतशय अपशलयथर कय सथगन पयथरनय पत वनरसत वकयय गयय। उभयपकक कद कद तकरस एवस पतयवलश कद अवलदकन सद पथम दषयय सथगनयददश ददनद कय कदई औवचतय पतशत नहह हदतय हह, कयकवक सपववधय कय ससतपलन पथम दषटय कद स एवस अपयणरनशय कवत आवद वदतशय अपशलयथर कद पक मम नहह पररलवकत हदतश हह। अतल सथगन आददश पयररत वकयद जयनद कक कदई आवशयकतय नहह हह। उपरदक कक गई वववदचनय कद आधयर पर उपरदक वदतशय अपशल मम पसतपत सथगन पयथरनय पत वनरसत वकयय जयतय हह। पतयवलश सपनवयई हदतप अवगम वनयत वतथथ 26.12.2024 कद कद पसतपत हद। ह० अप० ओम पकयश रयय) ( आई०ए०एस० सदसय, नययवयक 03.12.2024"

8. Perusal of the finding of fact recorded by the Board of Revenue while rejecting the application for interim relief demonstrate that prima facie case, balance of convenience and irreparable loss has been considered by the Board of Revenue while rejecting the application for interim relief during pendency of second appeal, as such, there is no scope of interference against the order dated 3.12.2024 rejecting the application for interim relief under the impugned.

9. So far as the merit of second appeal is concerned, the same shall be decided by the Board of Revenue in accordance with law expeditiously.

10. Considering the entire facts and circumstances of the case, no interference is required against the impugned order dated 3.12.2024.

11. The writ petition is dismissed and the Board of Revenue, U.P. Prayagraj/ respondent no.2 is directed to decide the pending second appeal after affording proper opportunity of hearing to the parties, expeditiously preferably within a period of three months from the date of production of certified copy of this order before respondent no.2. Order Date :- 7.2.2025 Rameez

1. Heard Mr. Sunil Kumar Mishra, learned counsel for the petitioner, Mr. Santosh Kumar Shukla, learned counsel for the respondent no.4, learned Standing Counsel for the State-respondents and Mr. Pradeep Singh, learned counsel for the respondent- Gaon Sabha.

2. Brief facts of the case are that the suit for partition under Section 116 of the U.P. Revenue Code, 2006 was filed by the petitioner impleading respondent no.4 as defendant. Plaintiff and defendant are real brothers. Preliminary decree for 1/2 share each to plaintiff and defendant was passed by trial Court. In pursuance of the preliminary decree, kurra was prepared and objection was invited. The kurra prepared by the lekhpal was confirmed. Petitioner challenged the decree dated 19.12.2021 passed by the trial Court in appeal before the Commissioner. The appeal was dismissed by the Commissioner vide judgement dated 11.7.2022. Against the judgment and decree passed by the trial Court/ first appellate Court, second appeal along with stay application has been filed before respondent no.2/ Board of Revenue. Board of Revenue has not disposed of the stay application, accordingly, petitioner filed Writ- B No.2972 of 2024 before this Court, which was disposed of vide order dated 17.9.2024 directing the Board of Revenue to decide the stay application in the light of the ratio of law laid down by this Court in Mool Chandra Yadav Vs. Raja Buland Sugar Company Limited reported in 1982, Volume (3) SCC 484, Board of Revenue has decided the stay application vide order dated 3.12.2024 by which stay application filed by the petitioner in support of second appeal has been rejected, hence this writ petition on behalf of the petitioner for the following reliefs: "i. issue a suitable writ order in the nature of certiorari quashing the impugned order dated 3.12.2024 passed in stay application in Second Appeal No.2301 of 2022 (Computerized Case No.AL20221667002301), Mata Harsh vs. State of U.P. and others under Section 208 of U.P. Revenue Code, 2006. ii. issue a suitable writ order or direction in the nature of mandamus commanding upon the respondents not to dispossess the petitioner over the land in dispute and maintain the status quo till the disposal of the Second Appeal No.2301 of 2022, Computer Case No.AL20221667002301 (Mata Harsh vs. State of U.P. and Others, under Section 208 of U.P. Revenue Code, 2006."

3. Learned counsel for the petitioner submitted that the kurra was prepared by Lekhpal in illegal and arbitrary manner. He further submitted that opportunity to examine the Lekhpal was not given to petitioner, as such, the kurra prepared by the Lekhpal cannot be confirmed. He further submitted that the first appeal filed by the petitioner was initially entertained and interim order was granted but by final order, the first appeal has been dismissed. He further submitted that the second appeal has been filed along with the prayer for interim relief but under the impugned order the application for interim relief has been rejected without considering the case of the petitioner in the light of the ratio of law laid down by Hon'ble Supreme Court in Mool Chandra Yadav (supra). He further submitted that appropriate directed be issued for expeditious disposal of pending second appeal and till the disposal of second appeal, the parties be directed to maintain status quo.

4. On the other hand, learned counsel for respondent no.4 submitted that the Board of Revenue has properly considered the prima-facie case while considering the application for interim relief filed by the petitioner. He further submitted that the Board of Revenue has rejected the application for interim relief recording the finding of fact that petitioner and respondent no.4 are real brothers, as such, both are entitled to 1/2 share and the lekhpal has properly prepared the kurra according to the provisions contained under U.P. Revenue Code Rules, 2016. He further submitted that there is no illegality in the order rejecting the interim relief prayed by the petitioner in second appeal. He further submitted that second appeal is pending, as such, the petitioner should press his second appeal in accordance with law rather writ petition before this Court.

5. I have considered the argument advanced by learned counsel for the parties and perused the records.

6. There is no dispute about the fact that second appeal filed by the petitioner arising out of proceeding under Section 116 of U.P. Revenue Code, 2006 is pending before the Board of Revenue / respondent no.2 and the application for interim relief has been rejected under the impugned order dated 3.12.2024.

7. In order to appreciate the controversy involved in the matter, perusal of the order passed by the Board of Revenue rejecting the application for interim relief in second appeal will be relevant which is as under: " नययययलय शश ओम पकयश रयय, मयननशय सदसय, मणडलल- ववनधययचल, जनपद:- रयजसव पररषद, उ०प०, भददहश गयम - शशपपर पययगरयज वयद ससखयय:- SA /2301/2022/ भददहश परगनय भददहश कमपययटरशकक त वयद ससखयय:- AL20221667002301 मयतय हषर बनयम सरकयर आवद असतगरत धयरयल- 208, उतर पददश रयजसव ससवहतय - 2006 आददश वतथथ:- 03/12/2024 आददश उपरदक वदतशय अपशल मम मय० उचच नययययलय कद समक वदतशय अपशलयथर दयरय ररट ययवचकय ससखयय 2972/2024 यदथजत कक गई थजसमम मय० उचच नययययलय दयरय अपनद आददश वदनयसक 17.09.2024 मम यह आददश पयररत वकयय गयय हह वक सथगनयददश पर एक मयह कद भशतर आददश पयररत करम। अतल मय० उचच नययययलय कद आददश कद अनपपयलन मम उभयपकक कद सथगनयददश पयथरनय पत पर सपनय गयय एवस पतयवलश कय पररशशलन वकयय गयय। पतयवलश कद अवलदकन सद सपष हह वक उक ववभयजन वयद मम अपशलयथर एवस ववपकश ददनक सगद भयई हह तथय ददनक कय 1/2, 1/2 वहससय वववयवदत आरयजश मम हह। ददनक वयवकयक दयरय वववयवदत आरयजश पर मकयन वनवमरत वकयय गयय हह। उतर तरफ वदतशय अपशलकतयर कय मकयन ससथत हह इसशथलए उसद उतर कक तरफ कक भयवम दश गई हह तथय दवकण कक तरफ ववपकश ससखयय 3 मयतयफल कय मकयन हह, इसथलए उसद दवकण कक तरफ भयवम दश गई हह तथय मसनदर कय रकबय वनकयल कर कप रयरफयट बनययय गयय हह। मयतयहषर दयरय थसववल नययययलय मम ववपकश ससखयय 3 ववरद पयथरनय पत यदथजत वकयय गयय थय और उनहम वनमयरण सद रदकनद हदतप पयथरनय कक गयश थश। थसववल नययययलय कद आददश वदनयसक 09.02.2021 सद वदतशय अपशलयथर कय सथगन पयथरनय पत वनरसत वकयय गयय। उभयपकक कद कद तकरस एवस पतयवलश कद अवलदकन सद पथम दषयय सथगनयददश ददनद कय कदई औवचतय पतशत नहह हदतय हह, कयकवक सपववधय कय ससतपलन पथम दषटय कद स एवस अपयणरनशय कवत आवद वदतशय अपशलयथर कद पक मम नहह पररलवकत हदतश हह। अतल सथगन आददश पयररत वकयद जयनद कक कदई आवशयकतय नहह हह। उपरदक कक गई वववदचनय कद आधयर पर उपरदक वदतशय अपशल मम पसतपत सथगन पयथरनय पत वनरसत वकयय जयतय हह। पतयवलश सपनवयई हदतप अवगम वनयत वतथथ 26.12.2024 कद कद पसतपत हद। ह० अप० ओम पकयश रयय) ( आई०ए०एस० सदसय, नययवयक 03.12.2024"

8. Perusal of the finding of fact recorded by the Board of Revenue while rejecting the application for interim relief demonstrate that prima facie case, balance of convenience and irreparable loss has been considered by the Board of Revenue while rejecting the application for interim relief during pendency of second appeal, as such, there is no scope of interference against the order dated 3.12.2024 rejecting the application for interim relief under the impugned.

9. So far as the merit of second appeal is concerned, the same shall be decided by the Board of Revenue in accordance with law expeditiously.

10. Considering the entire facts and circumstances of the case, no interference is required against the impugned order dated 3.12.2024.

11. The writ petition is dismissed and the Board of Revenue, U.P. Prayagraj/ respondent no.2 is directed to decide the pending second appeal after affording proper opportunity of hearing to the parties, expeditiously preferably within a period of three months from the date of production of certified copy of this order before respondent no.2. Order Date :- 7.2.2025 Rameez