Facts of the Case
Four plots of land were in the name of Smt. Ram Raji, the widow of Sheetla Prasad. On the death of Smt. Ram Raji, the name of Smt. Sampata, being the only daughter, was recorded by the Supervisor, Kanoongo.
On 6.7.1974, three persons, Bhikhu, Ram Sumran and Ram Kumar filed a suit against Sampata. They claimed Bhumidhari rights on the plots, based on an unregistered Will. The will was allegedly executed by Smt. Ram Raji. In the Suit, they impleaded the State of U.P. and the Gaon Sabha as parties. The three parties claimed to be the nephews of her Late husband, Shiv Prasad. They denied the existence of Sampata as the daughter of Ram Raji and Sheetla Prasad.
The Suit was contested by Sampata, who pleaded that she is the sole heir of Smt. Ram Raji and had inherited the property in the dispute. The lawsuit was also contested by the State of U.P. by filing written statement. The Suit was remanded to the Sub Divisional Officer, Tarabganj, Gonda. Thereafter, the plaintiffs passed away. Their legal heirs took their place since. The defendant Sampata also passed away. Her legal heir, Kallu Ram, substituted her.
The revenue records had recorded Kallu Ram, as Bhumidhar. Kallu then proceeded to execute two Sale Deeds. One in favour of the Petitioner and one, in the name of Sushila Devi.
Kallu Ram also executed a Power of Attorney in favour of Suraj Lal, husband of Smt. Manju Devi. A power of attorney authorised him to prosecute the declaratory Suit pending before the Sub Divisional Officer, on behalf of Kallu Ram. In the meantime, the second purchaser, Smt. Sushila Devi transferred her share of purchased land in favour of Smt. Manju Devi.
Contentions of the Petitioner
The Petitioner submitted that any person, aggrieved by the judgment, can file an appeal. The Counsel cited recent decisions where the Supreme Court has upheld that a party adversely affected by a judgment has a right to prefer an appeal before the Appellate Court. Thus, the Petitioner argued that the ground taken by the Board of Revenue was misconceived.
Next, the Counsel argued that the Second Appeal was not maintainable. The Counsel argued that based on order of remand passed in the First Appeal, a Second Appeal was not maintainable. To support this argument, the Petitioner relied on a 1961 judgment by the Supreme Court. If after an order of remand, determination of rights of parties is still due, then, the said order is not final. Thus, under article 133, a second appeal will not lie against this order.
The Counsel also cited Section 341 of the U.P. Zamindari Abolition and Land Reforms Act. This provision authorises the applicability of the requirements under the Civil Procedure Code (C.P.C.) unless provided otherwise.
Contentions of the Respondent
The Respondent argued that if the Counsel for the Petitioner is relying upon C.P.C. instead of the U.P.Z.A. and L.R. Act, then, one must also pay attention to Section 96(3) of the C.P.C. Under this provision, no appeal can lie against a compromise Decree.
The Respondent submitted that these Acts are procedural as well as substantive. Owing to this, there can be no new forum of appeal created by the C.P.C. which is not provided in the two legislations. They stated that if the Petitioner contends that Section 96(3) is not applicable, then Order XLI Rule 23A would also not be appropriate.
If the compromise was dishonest, the Petitioner could have challenged it in a separate Suit. The argument was that the Petitioner should have approached the Court of the first instance. Thus, the First Appeal was not maintainable.
Kallu Ram executed the subsequent Power of Attorney in favour of Ayodhya Prasad. In the said Power of Attorney, Kallu Ram revoked the earlier one and registered the following document. The Counsel submitted that the previous document was an unregistered one. The Counsel noted that the Petitioner made no application for impleadment between 2010 and 2014, although they had knowledge of the Suit.
Held
The observation was that neither the Petitioner nor the Respondents filed a copy of Power of Attorney executed in favour of Ayodhya Prasad.
Thus, the Court remained unconvinced with the Petitioner’s argument that a second appeal under Order XLI, Rule 23A of the Civil Procedure Code was not maintainable. The Bench affirmed the order passed by the Additional Commissioner in the First Appeal. In the absence of the State Government and Gaon Sabha, the compromise decree could not be upheld.
Although maintainable, the second appeal saw lack of allowance by the Revenue Board correctly. The Court noted that the Board ought not to have allowed the appeal on the ground that the transferee lis pendens is invalid. This order was then set aside.
Allowing the writ petition, the Court remanded the matter to the Court of the Sub Divisional Officer.
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