High Court · 2025

Petitioner :- Bharat Narain Respondent :- B.R. Counsel for Petitioner :- A.K.Sharma,C.P. Srivastava,Kshitij Shailendra (Elevated),Prakash Chandra Gupta,R.N.Sharma,Vinayak Mithal Counsel for Respondent :- Madhav Jain,Narayan Dutt Shukla,R.K.Gupta,Ramendra Asthana,Rishikesh Tripathi,Rituvendra Singh Nagvanshi,S.C.,Santosh Kumar Hon'ble Chandra Kumar Rai,J. Order on Civil Misc. Delay Condonation Application No. 16 of 2022 and Substitution Application No. 17 of 2022.

1. The instant applications have been filed in respect to deceased respondent nos. 7, 8 and 9 with the prayer for condonation of delay.

2. Explanation given for delay is satisfactory.

3. Delay in filing the substitution application is condoned.

4. Let the word "deceased" be mentioned against the name of respondent nos. 7, 8 and 9 and the name of their legal heirs as mentioned in prayer clause be substituted as respondent no. 7/1 & 7/2, 9/2 to 9/4. In respect to respondent no. 8 a note be made that her heirs are already on record of the writ petition.

4. Applications are accordingly allowed. Order on Civil Misc. Substitution Application No. 12 of 2021. In view of the order passed on delay condonation application no. 16 of 2022 and Substitution Application No. 17 of 2022, the instant application is rejected. Order on Civil Misc. Substitution Application No. 6 of 2018. The instant substitution application has been filed in respect to sole petitioner which has already been allowed and the legal heirs of deceased petitioners have already been substituted, as such the instant application is rejected. Order on writ petition

1. Heard Sri Vinayak Mithal, learned counsel for the petitioner, Sri Narayan Dutt Shukla, learned counsel for the contesting respondent nos. 7/1 and 7/2, Sri Avinash Chandra Srivastava, learned counsel for the Gaon Sabha and learned Standing Counsel for the State respondents.

2. Brief facts of the case are that plaintiff petitioner filed a Suit for declaration as well as partition under Section 229B/176 of U.P. Zamindari Abolition Land Reforms Act, 1950 herein after referred to as the U.P.Z.A. & L.R. Act claiming one third share on the ground that disputed property was ancestral property. The disputed plots as mentioned in para 2 of the writ petition as plot nos. 114, 245, 265, 502, 591. A written statement was filed by Sailendra stating therein that he has no objection, if the Suit is decreed. Prem Narayan and Smt. Madhvi filed written statement denying the plaint allegations as well as stating that plot belonged to them exclusively. Bal Mukund and Ghanshyam, who were transferee have also filed written statement stating that they had purchased plot no. 591 from Prem Narayan and Sailendra as well as from Smt. Madhvi on 23.05.1977. They prayed that Suit should be dismissed. The trial Court vide judgement and decreed dated 20.08.1979 decreed the aforementioned Suit in part declaring the plaintiff as co-tenure holder of plot nos. 114, 245, 265, 502 ग, but Suit was dismissed in respect to plot no. 591. Against the judgment and decree dated 20.08.1979 passed by trial Court/Sub-Divisional Officer, petitioner filed an appeal before Commissioner, which was registered as appeal no. 242/1979. The Additional Commissioner vide judgment dated 15.02.1983 dismissed the appeal. Petitioner filed a Second Appeal before respondent no. 1-Board of Revenue, which was registered as Second Appeal No. 63 of 1982-83. The aforementioned second appeal has been allowed setting aside the judgment and decree of the trial Court as well as Commissioner's Court and rejected the plaint under Order 7, Rule 11(d) of the Code of Civil Procedure. Hence, this writ petition on behalf of the petitioners for following reliefs:- "(i) to issue a writ, order or direction in the nature of certiorari quashing the orders passed by the Board of Revenue dated 22.3.84, order passed by the Additional Commissioner, Agra dated 15.2.83 as well as the order passed by the Assistant Collector Khairagarh, Agra, dated 20.8.79. (ii) to issue any other suitable order or direction which this Hon'ble Court may deem proper in the facts and circumstances of the case. (iii) to award costs of this petition to the petitioner."

3. This Court admitted the writ petition on 21.05.1984 and granted interim order directing the parties to maintain status quo in pursuance of the order dated 21.05.1984. The parties have exchanged their pleadings.

4. Learned counsel for the petitioner submitted that Board of Revenue has passed the impugned order in arbitrary manner rejecting the plaint under order 7, Rule 11(d) of the Code of Civil Procedure. He placed the averment made in paragraph no. 8 of the writ petition in order to demonstrate that the impugned order has been passed by Board of Revenue in arbitrary manner, as such the order passed by Board of Revenue should be set aside and the matter should be sent back before the Board of Revenue to decide the second appeal afresh on merit.

5. On the other hand, Sri Narayan Dutt Shukla, learned counsel appearing for contesting respondent submitted that there is no illegality in the order passed by all the three courts. He further submitted that no interference is required against the impugned orders and the writ petition is liable to be dismissed.

6. I have considered the argument advanced by the learned counsel for the parties and perused the record.

7. In order to appreciate the controversy involved in the matter, perusal of the provisions contained under Order 7, Rule 11(d) of the Code of Civil Procedure will be relevant, which is as under:- "Order 7, Rule 11(d) - where the suit appears from the statement in the plaint to be barred by any law"

8. The averment made in the para 8 of the writ petition will be also relevant for a perusal, which is as under:- "That the Board of Revenue rejected the plaint under order VII Rule 11 (d) of the C.P.C. on the ground that the petitioner- plaintiff did not mention in the plaint as to when the notice was given to the State Government and the Gaon Sabha and when these notices were served on them. The Board of Revenue further held that there is no evidence on record to the effect that notices to the Gaon Sabha and the State Government were served on them respectively. The findings recorded by the Board of Revenue in these respects are totally wrong. Under Section 80(1) of the Code of Civil Procedure only this much is required to be stated in the plaint that notices to State Government and the Gaon Sabha had been served. The date of giving and the date of receiving the notices by the State Government and the Gaon Sabha are not required to be stated. Hence, the Board of Revenue committed illegality in holding so. The petitioner served the notice under Sec. 80 C.P.C. on the State Government vide Registered/A.D. receipt no. 192, dated 21.9.77, which had been received by the Collector on 22.9.77. The copy of the registry receipt as well as the acknowledgement, which were filed by the petitioners in Trial Court are being filed herewith and marked as ANNEXURES (2) & (3) to this petition. The view expressed by the Board of Revenue that there is no such proof that notices were sent to the State Government under Section 80 C.P.C. is totally wrong in view of these facts.

9. Considering the averments made in para 8 of the writ petition, the order impugned dated 22.03.1984 passed by Board of Revenue cannot be sustained in the eyes of law.

10. It is also material to mention that Suit for declaration and partition are Suit of special character, but board of revenue has exercised the second appellate jurisdiction in arbitrary manner by which second appeal filed by petitioner has been allowed and plaint has been rejected under Order 7 Rule 11(d) of Civil Prodecdure Code although there was no cross appeal by defendants either before first appellate Court or second appellate Court, as such there was no occasion for board of revenue to reject the plaint under Order 7 Rule 11(d) of Civil Procedure Code.

11. Considering the entire facts and circumstances of the case, the impugned order dated 22.03.1984 passed by respondent no. 1/Board of Revenue is liable to be set aside and same is hereby set aside.

12. The writ petition is allowed in part and matter is remitted back before the respondent no. 1-Board of Revenue, U.P. Allahabad to register the aforementioned second appeal on its original number and decide the second appeal on merit, after affording proper opportunity of hearing to the parties expeditiously, preferably within a period of four months from the date of production of a certified copy of this order. Order Date :- 19.2.2025 Neetu NEETU SINGH High Court of Judicature at Allahabad

Petitioner :- Bharat Narain Respondent :- B.R. Counsel for Petitioner :- A.K.Sharma,C.P. Srivastava,Kshitij Shailendra (Elevated),Prakash Chandra Gupta,R.N.Sharma,Vinayak Mithal Counsel for Respondent :- Madhav Jain,Narayan Dutt Shukla,R.K.Gupta,Ramendra Asthana,Rishikesh Tripathi,Rituvendra Singh Nagvanshi,S.C.,Santosh Kumar Hon'ble Chandra Kumar Rai,J. Order on Civil Misc. Delay Condonation Application No. 16 of 2022 and Substitution Application No. 17 of 2022.

1. The instant applications have been filed in respect to deceased respondent nos. 7, 8 and 9 with the prayer for condonation of delay.

2. Explanation given for delay is satisfactory.

3. Delay in filing the substitution application is condoned.

4. Let the word "deceased" be mentioned against the name of respondent nos. 7, 8 and 9 and the name of their legal heirs as mentioned in prayer clause be substituted as respondent no. 7/1 & 7/2, 9/2 to 9/4. In respect to respondent no. 8 a note be made that her heirs are already on record of the writ petition.

4. Applications are accordingly allowed. Order on Civil Misc. Substitution Application No. 12 of 2021. In view of the order passed on delay condonation application no. 16 of 2022 and Substitution Application No. 17 of 2022, the instant application is rejected. Order on Civil Misc. Substitution Application No. 6 of 2018. The instant substitution application has been filed in respect to sole petitioner which has already been allowed and the legal heirs of deceased petitioners have already been substituted, as such the instant application is rejected. Order on writ petition

1. Heard Sri Vinayak Mithal, learned counsel for the petitioner, Sri Narayan Dutt Shukla, learned counsel for the contesting respondent nos. 7/1 and 7/2, Sri Avinash Chandra Srivastava, learned counsel for the Gaon Sabha and learned Standing Counsel for the State respondents.

2. Brief facts of the case are that plaintiff petitioner filed a Suit for declaration as well as partition under Section 229B/176 of U.P. Zamindari Abolition Land Reforms Act, 1950 herein after referred to as the U.P.Z.A. & L.R. Act claiming one third share on the ground that disputed property was ancestral property. The disputed plots as mentioned in para 2 of the writ petition as plot nos. 114, 245, 265, 502, 591. A written statement was filed by Sailendra stating therein that he has no objection, if the Suit is decreed. Prem Narayan and Smt. Madhvi filed written statement denying the plaint allegations as well as stating that plot belonged to them exclusively. Bal Mukund and Ghanshyam, who were transferee have also filed written statement stating that they had purchased plot no. 591 from Prem Narayan and Sailendra as well as from Smt. Madhvi on 23.05.1977. They prayed that Suit should be dismissed. The trial Court vide judgement and decreed dated 20.08.1979 decreed the aforementioned Suit in part declaring the plaintiff as co-tenure holder of plot nos. 114, 245, 265, 502 ग, but Suit was dismissed in respect to plot no. 591. Against the judgment and decree dated 20.08.1979 passed by trial Court/Sub-Divisional Officer, petitioner filed an appeal before Commissioner, which was registered as appeal no. 242/1979. The Additional Commissioner vide judgment dated 15.02.1983 dismissed the appeal. Petitioner filed a Second Appeal before respondent no. 1-Board of Revenue, which was registered as Second Appeal No. 63 of 1982-83. The aforementioned second appeal has been allowed setting aside the judgment and decree of the trial Court as well as Commissioner's Court and rejected the plaint under Order 7, Rule 11(d) of the Code of Civil Procedure. Hence, this writ petition on behalf of the petitioners for following reliefs:- "(i) to issue a writ, order or direction in the nature of certiorari quashing the orders passed by the Board of Revenue dated 22.3.84, order passed by the Additional Commissioner, Agra dated 15.2.83 as well as the order passed by the Assistant Collector Khairagarh, Agra, dated 20.8.79. (ii) to issue any other suitable order or direction which this Hon'ble Court may deem proper in the facts and circumstances of the case. (iii) to award costs of this petition to the petitioner."

3. This Court admitted the writ petition on 21.05.1984 and granted interim order directing the parties to maintain status quo in pursuance of the order dated 21.05.1984. The parties have exchanged their pleadings.

4. Learned counsel for the petitioner submitted that Board of Revenue has passed the impugned order in arbitrary manner rejecting the plaint under order 7, Rule 11(d) of the Code of Civil Procedure. He placed the averment made in paragraph no. 8 of the writ petition in order to demonstrate that the impugned order has been passed by Board of Revenue in arbitrary manner, as such the order passed by Board of Revenue should be set aside and the matter should be sent back before the Board of Revenue to decide the second appeal afresh on merit.

5. On the other hand, Sri Narayan Dutt Shukla, learned counsel appearing for contesting respondent submitted that there is no illegality in the order passed by all the three courts. He further submitted that no interference is required against the impugned orders and the writ petition is liable to be dismissed.

6. I have considered the argument advanced by the learned counsel for the parties and perused the record.

7. In order to appreciate the controversy involved in the matter, perusal of the provisions contained under Order 7, Rule 11(d) of the Code of Civil Procedure will be relevant, which is as under:- "Order 7, Rule 11(d) - where the suit appears from the statement in the plaint to be barred by any law"

8. The averment made in the para 8 of the writ petition will be also relevant for a perusal, which is as under:- "That the Board of Revenue rejected the plaint under order VII Rule 11 (d) of the C.P.C. on the ground that the petitioner- plaintiff did not mention in the plaint as to when the notice was given to the State Government and the Gaon Sabha and when these notices were served on them. The Board of Revenue further held that there is no evidence on record to the effect that notices to the Gaon Sabha and the State Government were served on them respectively. The findings recorded by the Board of Revenue in these respects are totally wrong. Under Section 80(1) of the Code of Civil Procedure only this much is required to be stated in the plaint that notices to State Government and the Gaon Sabha had been served. The date of giving and the date of receiving the notices by the State Government and the Gaon Sabha are not required to be stated. Hence, the Board of Revenue committed illegality in holding so. The petitioner served the notice under Sec. 80 C.P.C. on the State Government vide Registered/A.D. receipt no. 192, dated 21.9.77, which had been received by the Collector on 22.9.77. The copy of the registry receipt as well as the acknowledgement, which were filed by the petitioners in Trial Court are being filed herewith and marked as ANNEXURES (2) & (3) to this petition. The view expressed by the Board of Revenue that there is no such proof that notices were sent to the State Government under Section 80 C.P.C. is totally wrong in view of these facts.

9. Considering the averments made in para 8 of the writ petition, the order impugned dated 22.03.1984 passed by Board of Revenue cannot be sustained in the eyes of law.

10. It is also material to mention that Suit for declaration and partition are Suit of special character, but board of revenue has exercised the second appellate jurisdiction in arbitrary manner by which second appeal filed by petitioner has been allowed and plaint has been rejected under Order 7 Rule 11(d) of Civil Prodecdure Code although there was no cross appeal by defendants either before first appellate Court or second appellate Court, as such there was no occasion for board of revenue to reject the plaint under Order 7 Rule 11(d) of Civil Procedure Code.

11. Considering the entire facts and circumstances of the case, the impugned order dated 22.03.1984 passed by respondent no. 1/Board of Revenue is liable to be set aside and same is hereby set aside.

12. The writ petition is allowed in part and matter is remitted back before the respondent no. 1-Board of Revenue, U.P. Allahabad to register the aforementioned second appeal on its original number and decide the second appeal on merit, after affording proper opportunity of hearing to the parties expeditiously, preferably within a period of four months from the date of production of a certified copy of this order. Order Date :- 19.2.2025 Neetu NEETU SINGH High Court of Judicature at Allahabad