High Court · 2025

Judgment

1. This writ petition is directed against an order of the Board of Revenue, Circuit Court-2, Agra dated 08.05.2025 passed in Second

Appeal No. 410 /2016/Firozabad arising out of a final decree in a suit for partition. The petitioner instituted Suit No. 76 of 1987, under Section 176 of the U.P.Z.A.&L.R. Act, 1950 (for short, 'the Act of 1950’) before the Sub Divisional Officer, Firozabad seeking a moiety in the suit property, arraying the predecessor-in-title of respondent nos. 7 to 11 as the defendant. A preliminary decree was passed in the suit, declaring a half share for both parties, that is to say, the plaintiff and the defendant. After the preliminary decree was passed, an application was made for preparation of final decree. The Sub Divisional Officer, Shikohabad, District Firozabad passed a final decree on 16.07.1992.

2. Aggrieved by the final decree, a First Appeal was carried to the Commissioner, Agra Division, Agra. The appeal being Appeal No. 32 of 2014/20140100001805/14 came up for determination before the Additional Commissioner (Judicial), Agra Division, Agra, who, vide his judgement and decree dated 31.03.2016, dismissed the appeal and affirmed the Trial Court.

3. Aggrieved by the decree of the appellate court, an appeal from the appellate decree or a Second Appeal was carried to the Board by one Balwant Singh, the predecessor-in-title of respondent nos. 7 to 11. In the course of time, the said appeal came up for hearing before the Board of Revenue, Circuit Court-2, Agra. The Board by the impugned judgement and order dated 08.05.2025 have allowed the appeal and remanded the matter to the Trial Court with a direction to decide afresh after hearing parties, bearing in mind the remarks in the judgement.

4. Admit.

5. Mr. Shailendra Sharma and Mr. Rishi Kant Rai, Advocates who appear on behalf of the contesting respondent nos. 7 to 11 waive their right to file a counter affidavit. Likewise, Mr. Rohit Singh Parmar, Advocate holding brief of Mr. Avinash Chandra Srivastava, learned counsel for respondent no. 5 & 6 waives his right to file a counter and so does the learned Standing Counsel appearing on behalf of the State.

6. Since a short point is involved, this petition is taken up for hearing forthwith and decide by this judgement.

7. Mr. Gautam Baghel, learned counsel for the petitioner argues that the judgement and order passed by the Board of Revenue in Second Appeal, is without jurisdiction inasmuch as the appeal has been decided by the Board in breach of the mandate of sub-Section (4) of Section 331 of the Act of 1950, requiring a Second Appeal to lie on grounds mentioned under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code'). Section 100 of the Code provides that a Second Appeal lies from an appellate decree if the High Court is satisfied that the case involves a substantial question of law. The submission is that unless a substantial question of law is involved, framed and decided, jurisdiction under Section 331 cannot be exercised on account of the provisions of Section 100 of the Code. Mr. Baghel submits that a perusal of the 2 of 4 impugned judgement shows that neither any substantial question of law was framed by the Board nor decided, while allowing the appeal and setting aside the judgement of the Lower Appellate Court with a remand to the Trial Court.

8. Mr. Shailendra Sharma, learned counsel appearing on behalf of respondent nos. 7 to 11 submits that the order impugned is an order of remand and not a decree, and, therefore, different considerations would apply. It is not imperative to formulate or decide substantial questions of law in an appeal decided in the aforesaid manner.

9. We are afraid that the contention of Mr. Sharma cannot be countenanced. The decree passed by an Appellate Court is final, subject to scrutiny of the Second Appellate Court, strictly according to the conditions laid down there. The decree of an Appellate Court as distinguished from an original decree, is rendered vulnerable only if in the appeal from the appellate decree substantial questions of law are shown to be involved. It is not an open appeal where all questions of law and fact are at large for adjudication before the Court, as it is in a First Appeal. The Court is obliged to formulate substantial questions of law at the time of admission of the Second Appeal and then decide the appeal answering those questions. There is no other jurisdiction that is vested in a Court of Second Appeal. There is no other manner in which jurisdiction can be exercised by a Court of Second Appeal, even under Section 331 of the Act of 1950.

10. The question involved here fell for consideration in Gandhi Nagar Sahkari Awas Samiti Limited through Secretary Rajendra Prasad v. Board of Revenue, Uttar Pradesh, Allahabad and others, 2016(117)ALR 114. In Gandhi Nagar Sahkari Awas Samiti Limited (supra), it has been held: 3 of 4 “8. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of Code.

9. In the case of (Miss) Louiza D’souza v. John Claudis Andrews and others, 2001 (92) R.D. 64, Hon’ble the Supreme Court held that deciding the second appeal without framing substantial question of law by a court is contrary to the provisions as provided under Section 100 C.P.C. and on the said ground set aside the order under challenge passed in second appeal and remanded the matter to decide afresh.”

11. In view of the aforesaid settled position of the law, the impugned order passed by the Board of Revenue, U.P. at Prayagraj cannot be sustained.

12. In the result, this writ petition succeeds and is allowed. The impugned order dated 08.05.2025 passed in Second Appeal No. 410/2016/ Firozabad, is hereby quashed. The appeal shall stand restored to the file of the Board, who will, in the first instance, proceed to frame substantial questions of law involved and then decide the appeal giving parties opportunity of hearing. The Board will make it convenient to decide the appeal expeditiously in the manner that at least two dates of effective hearing shall be fixed every month.

13. There shall be no order as to costs. Order Date :- 20.8.2025 Brijesh Maurya BRIJESH KUMAR High Court of Judicature at Allahabad 4 of 4

Appeal No. 410 /2016/Firozabad arising out of a final decree in a suit for partition. The petitioner instituted Suit No. 76 of 1987, under Section 176 of the U.P.Z.A.&L.R. Act, 1950 (for short, 'the Act of 1950’) before the Sub Divisional Officer, Firozabad seeking a moiety in the suit property, arraying the predecessor-in-title of respondent nos. 7 to 11 as the defendant. A preliminary decree was passed in the suit, declaring a half share for both parties, that is to say, the plaintiff and the defendant. After the preliminary decree was passed, an application was made for preparation of final decree. The Sub Divisional Officer, Shikohabad, District Firozabad passed a final decree on 16.07.1992.

2. Aggrieved by the final decree, a First Appeal was carried to the Commissioner, Agra Division, Agra. The appeal being Appeal No. 32 of 2014/20140100001805/14 came up for determination before the Additional Commissioner (Judicial), Agra Division, Agra, who, vide his judgement and decree dated 31.03.2016, dismissed the appeal and affirmed the Trial Court.

3. Aggrieved by the decree of the appellate court, an appeal from the appellate decree or a Second Appeal was carried to the Board by one Balwant Singh, the predecessor-in-title of respondent nos. 7 to 11. In the course of time, the said appeal came up for hearing before the Board of Revenue, Circuit Court-2, Agra. The Board by the impugned judgement and order dated 08.05.2025 have allowed the appeal and remanded the matter to the Trial Court with a direction to decide afresh after hearing parties, bearing in mind the remarks in the judgement.

4. Admit.

5. Mr. Shailendra Sharma and Mr. Rishi Kant Rai, Advocates who appear on behalf of the contesting respondent nos. 7 to 11 waive their right to file a counter affidavit. Likewise, Mr. Rohit Singh Parmar, Advocate holding brief of Mr. Avinash Chandra Srivastava, learned counsel for respondent no. 5 & 6 waives his right to file a counter and so does the learned Standing Counsel appearing on behalf of the State.

6. Since a short point is involved, this petition is taken up for hearing forthwith and decide by this judgement.

7. Mr. Gautam Baghel, learned counsel for the petitioner argues that the judgement and order passed by the Board of Revenue in Second Appeal, is without jurisdiction inasmuch as the appeal has been decided by the Board in breach of the mandate of sub-Section (4) of Section 331 of the Act of 1950, requiring a Second Appeal to lie on grounds mentioned under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code'). Section 100 of the Code provides that a Second Appeal lies from an appellate decree if the High Court is satisfied that the case involves a substantial question of law. The submission is that unless a substantial question of law is involved, framed and decided, jurisdiction under Section 331 cannot be exercised on account of the provisions of Section 100 of the Code. Mr. Baghel submits that a perusal of the 2 of 4 impugned judgement shows that neither any substantial question of law was framed by the Board nor decided, while allowing the appeal and setting aside the judgement of the Lower Appellate Court with a remand to the Trial Court.

8. Mr. Shailendra Sharma, learned counsel appearing on behalf of respondent nos. 7 to 11 submits that the order impugned is an order of remand and not a decree, and, therefore, different considerations would apply. It is not imperative to formulate or decide substantial questions of law in an appeal decided in the aforesaid manner.

9. We are afraid that the contention of Mr. Sharma cannot be countenanced. The decree passed by an Appellate Court is final, subject to scrutiny of the Second Appellate Court, strictly according to the conditions laid down there. The decree of an Appellate Court as distinguished from an original decree, is rendered vulnerable only if in the appeal from the appellate decree substantial questions of law are shown to be involved. It is not an open appeal where all questions of law and fact are at large for adjudication before the Court, as it is in a First Appeal. The Court is obliged to formulate substantial questions of law at the time of admission of the Second Appeal and then decide the appeal answering those questions. There is no other jurisdiction that is vested in a Court of Second Appeal. There is no other manner in which jurisdiction can be exercised by a Court of Second Appeal, even under Section 331 of the Act of 1950.

10. The question involved here fell for consideration in Gandhi Nagar Sahkari Awas Samiti Limited through Secretary Rajendra Prasad v. Board of Revenue, Uttar Pradesh, Allahabad and others, 2016(117)ALR 114. In Gandhi Nagar Sahkari Awas Samiti Limited (supra), it has been held: 3 of 4 “8. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of Code.

9. In the case of (Miss) Louiza D’souza v. John Claudis Andrews and others, 2001 (92) R.D. 64, Hon’ble the Supreme Court held that deciding the second appeal without framing substantial question of law by a court is contrary to the provisions as provided under Section 100 C.P.C. and on the said ground set aside the order under challenge passed in second appeal and remanded the matter to decide afresh.”

11. In view of the aforesaid settled position of the law, the impugned order passed by the Board of Revenue, U.P. at Prayagraj cannot be sustained.

12. In the result, this writ petition succeeds and is allowed. The impugned order dated 08.05.2025 passed in Second Appeal No. 410/2016/ Firozabad, is hereby quashed. The appeal shall stand restored to the file of the Board, who will, in the first instance, proceed to frame substantial questions of law involved and then decide the appeal giving parties opportunity of hearing. The Board will make it convenient to decide the appeal expeditiously in the manner that at least two dates of effective hearing shall be fixed every month.

13. There shall be no order as to costs. Order Date :- 20.8.2025 Brijesh Maurya BRIJESH KUMAR High Court of Judicature at Allahabad 4 of 4