Kanhiya And 9 Others v. State Of U.P. And 5 Others

Facts of the case are quite peculiar and although relief has been claimed with regard to the disposal of appeal/stay application, after going through the record I find that initially a preliminary decree was drawn in a suit for division of holdings under Section 116 of U.P. Revenue Code-2006 on 20.10.2023. Terming the same to be ex parte, an application for recall was filed on 30.10.2023.

Prima facie it appears that keeping the recall application pending, a final decree was drawn. The final decree does not mention as to whether the petitioner was heard or not. At the same time, certain proceedings for attachment of the property under Section 145 Cr.P.C. were initiated, the property was attached and criminal revision against the said order is pending.

This Court is not concerned with the proceedings under Cr.P.C., as the same would be beyond the jurisdiction of this Court. However, considering the fact that appeal is prima facie not maintainable in view of Section 209(h) of U.P. Revenue Code- 2006, no direction can be issued to decide the appeal on merits or to consider the stay application.

Nevertheless, the petitioners cannot be left remedy-less and in the peculiar facts of the case, the court is inclined to ascertain as to what happened to the recall application dated 30.10.2023 (Annexure-3 to the writ petition) as no case number was mentioned on the said application but the officer concerned had made an endorsement "K.O.F." i.e. kept on file.

Learned Standing Counsel shall obtain instructions from the Sub Divisional Officer concerned about Annexure No. 3 to the writ petition as well as its consideration/non-consideration while finalizing the partition decree. Instructions shall be obtained before the next date fixed.

5. Put up as fresh before appropriate Bench on 23.04.2025.

Learned counsel for the petitioners is permitted to implead concerned Commissioner as respondent no. 2 during the course of the day. Order Date :- 24.3.2025 Pkb/