# Amarjeet v. State of U.P. & Anr

- **Citation:** (2021) 3 ILRA 41
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-10
- **Case number:** Misc. Single No. 3140 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amarjeet-v-state-of-u-p-anr-46888
- **Pages:** 25

## Headnote

(A) Civil Law - Code of Civil Procedure
,1908 - Sections 96 or 97 - U.P. Revenue
Code 2006 - Section 207 - first appeal,
Section 209-bar against certain appeals,
Section 210 - revision Section 116 - Suit
for division of holding, Section 117 - Duty
of the court in suits for division of
holdings , Revenue Rules, 2016 -Rule 107-
Suit for division of holding, Rule 108-Suit
for division of several holdings , Rule 109 -
Preliminary and final decrees-powers of
revision under Section 210 of the U.P.
Revenue Code - wide enough to examine
the legality, propriety and regularity of
any order passed in a suit or proceeding
by any Subordinate Revenue Court in
which no appeal lies - no fetters like
those provided in Section 115 of the Code
of Civil Procedure. (Para - 78)

Petitioner is a tenure holder - filed an
application for division of holdings under Section
116 of the U.P. Revenue Code 2006 before the
Sub-Divisional Magistrate - Sub-Divisional
Magistrate passed a preliminary decree about
the shares of the tenure holders relying upon
the revenue records - preliminary decree was
challenged by filing a First Appeal under Section
207 of the U.P. Revenue Code 2006 before
Additional Commissioner - preliminary objection
before the Additional Commissioner regarding
maintainability of the Appeal - Present writ
petition filed by the petitioner for quashing the
order passed by the Additional Commissioner in
Appeal. (Para -1,2)

HELD: -The Appeal was wrongly admitted by
the
Additional
Commissioner,
and
also
because the Additional Commissioners' order
does not give any reason for entertaining the
Appeal, the order impugned is set aside.
(Para - 79)

Writ Petition allowed. (E-6)

List of Cases cited: -

## Text

_Characters 0–39,945 of 85,460. This is a partial read: ask again with offset=39945 for what follows._

3 All. Amarjeet Vs. State of U.P. & Anr.
41
comes under the purview of the litigants.
On account of this reason, the argument on
behalf of the applicant that order dated
23.03.2020 has not been passed for the
benefit of the prosecution, is not liable to
be accepted.

Result

18- In view of above, this Court cannot
ignore the order dated 23.03.2020 of the Apex
Court, which is binding upon this Court.
Accordingly the claim of the applicant for grant
of default bail to him in this case is not liable to
be accepted in the light of discussion, as
mentioned above considering the order dated
23.03.2020(supra) of the Apex Court.

19- As a fallout and consequence thereof,
instant bail application is rejected.

20- However, considering the facts and
circumstances of the case, the trial Court is
directed to make an endeavor to conclude the
trial expeditiously preferably within a period of
one year from the date of production of copy of
this order without granting unnecessary
adjournment to either of the parties.
----------
(2021)03ILR A41
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.02.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 3140 of 2021

Amarjeet ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Surendra Kumar

Counsel for the Respondents:
C.S.C.

(A) Civil Law - Code of Civil Procedure
,1908 - Sections 96 or 97 - U.P. Revenue
Code 2006 - Section 207 - first appeal,
Section 209-bar against certain appeals,
Section 210 - revision Section 116 - Suit
for division of holding, Section 117 - Duty
of the court in suits for division of
holdings , Revenue Rules, 2016 -Rule 107-
Suit for division of holding, Rule 108-Suit
for division of several holdings , Rule 109 -
Preliminary and final decrees-powers of
revision under Section 210 of the U.P.
Revenue Code - wide enough to examine
the legality, propriety and regularity of
any order passed in a suit or proceeding
by any Subordinate Revenue Court in
which no appeal lies - no fetters like
those provided in Section 115 of the Code
of Civil Procedure. (Para - 78)

Petitioner is a tenure holder - filed an
application for division of holdings under Section
116 of the U.P. Revenue Code 2006 before the
Sub-Divisional Magistrate - Sub-Divisional
Magistrate passed a preliminary decree about
the shares of the tenure holders relying upon
the revenue records - preliminary decree was
challenged by filing a First Appeal under Section
207 of the U.P. Revenue Code 2006 before
Additional Commissioner - preliminary objection
before the Additional Commissioner regarding
maintainability of the Appeal - Present writ
petition filed by the petitioner for quashing the
order passed by the Additional Commissioner in
Appeal. (Para -1,2)

HELD: -The Appeal was wrongly admitted by
the
Additional
Commissioner,
and
also
because the Additional Commissioners' order
does not give any reason for entertaining the
Appeal, the order impugned is set aside.
(Para - 79)

Writ Petition allowed. (E-6)

List of Cases cited: -

1. National Institute of Technology & ors. Vs
Niraj Kumar Singh, (2007) 2 SCC 481
42 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Buddharaj Vs St. of U.P. & ors., (2017) 3 ADJ
465, and Hariom Vs St. of U.P. & ors., (2013) 6
ADJ 345

3. Secretary and Curator Victoria Memorial Vs
Howrah Gantantrik Nagrik Samiti & ors., JT
2010 (2)

4. Chitturi Subbanna Vs Kudapa Subbanna,
1965 SCR (2) 661

5. Venkata Reddy Vs Pethi Reddy, AIR 1963 SC
992

6. Mool Chandra & ors. Vs Deputy Director of
Consolidation & ors., (1995) 5 SCC 631

7. Venkat Reddy Vs Pethi Reddy, AIR 1963
Supreme Court 992

8. Gyarsi Bai Vs Dhansukh Lal, AIR 1965
Supreme Court 1055

9.
Bhivchandra
Shankar
More
Vs.
Balu
Gangaram More & ors., (2019) 6 SCC 387

10.
Hari
Shankar
Vs
Rao
Girdhari
Lal
Chowdhury, 1963 AIR SC 698

11. Shiv Shakti Cooperative Housing Society Vs
M/s Swaraj Developers & ors., (2003) 6 SCC 659

12.
Pankajakshi
(dead
through
legal
representatives) & ors. Vs Chandrika & ors.,
(2016) 6 SCC 157

13. Custodian of Evacuee Property, Bangalore
Vs Khan Saheb Abdul Shukoor,( 1961) 3 SCR
855

14. Maru Ram Vs U.O.I., (1981) 1 SCC 107

15. L.I.C. Vs DJ Bahadur & ors, (1981) 1 SCC
315

16. M/s Atmaram Properties Pvt. Ltd. Vs
Oriental insurance Comp. Pvt. Ltd., (2018) 2
SCC 27

17. Gobind Sugar Mills Ltd. Vs St. of Bihar,
(1999) 7 SCC 76

18. Commercial Tax Officer Vs Binani Cements
Ltd., (2014) 8 SCC 319

19. State of Bihar & ors. Vs Bihar Raj
M.S.E.S.K.K. Maha Sangh & ors., (2005) 9 SCC
129

20. U.O.I. & ors. Vs Ajit Singh, (2013) 4 SCC
186

21. Iridium India Telecom Ltd. Vs Motorola Inc.,
(2005) 2 SCC 145

22. State (NCT Delhi) Vs Narender, (2014) 13
SCC 100

23. Shankar Balwant Lokhande Vs Chandrakant
Shankar Lokhande, (1995) 3 SCC 413

24. Phoolchand Vs Gopal Lal, AIR 1967 Supreme
Court 1470

25. (Shankar Balwant Lokhande Vs Chandrakant
Shankar Lokhande, (1995) 3 SCC 413

26. Bikoba Deora Gaikwad Vs Hirabai Maruthi
Rao Ghorghare, (2008) 8 SCC 198

27. S. Satnam Singh Vs Surinder Kaur, (2009) 2
SCC 562

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

Heard Sri Sunendra Kumar, learned
counsel for the petitioner.

The petition is allowed.

The order dated 21.01.2021 passed by
the Additional Commissioner (Judicial),
Lucknow, is set aside.

Detailed reasons to follow.

Learned counsel for the petitioner and
learned standing counsel may give written
submission and case laws with regard to the
arguments made today.
3 All. Amarjeet Vs. State of U.P. & Anr.
43

Hon'ble Mrs. Sangeeta Chandra,J.

1. By means of the present writ
petition the petitioner seeks a writ in the
nature of Certiorari quashing the order
dated 21.01.2021 passed by the Additional
Commissioner
(Judicial),
Lucknow
Division, Lucknow in Appeal No. 01741 of
2020 Amrik Singh and others vs Amarjeet
Singh and others. The petitioner is a tenure
holder of Gata no. 48/2, ad-measuring
1.207 ha situated at village Bahadur Nagar,
Pargana Aurangabad,
Tehsil
Mithauli,
District
Lakhimpur
Kheri
and
on
19.11.2020, the petitioner had filed an
application for division of holdings under
Section 116 of the U.P. Revenue Code 2006
before
the
Sub-Divisional
Magistrate
Mithauli Kheri, which was registered as
Case No.04112 of 2002: Amarjeet and
others versus Subash Chander and others.
On
23.12.2020,
the
Sub-Divisional
Magistrate Mithauli, Kheri, had passed a
preliminary decree about the shares of the
tenure holders relying upon the revenue
records.

2. The preliminary decree dated
23.12.2020 was challenged by Amrik Singh
and others by filing a First Appeal under
Section 207 of the U.P. Revenue Code 2006
(hereinafter referred to as "the Code of
2006") which was registered as Appeal
No.01741 of 2020. The petitioner had
already filed a caveat application and when
the Appeal was listed on 04.01.2015 for
admission, the counsel for the petitioner
raised a preliminary objection in writing
with regard to the maintainability of the
Appeal.
The
petitioner
specifically
mentioned
before
the
Additional
Commissioner that the Appeal is not
maintainable because it has been filed only
against a preliminary decree, which is an
order of an interim nature, because the
remaining proceedings are still to be
concluded
before
the
Sub-Divisional
Magistrate and Section 207 of the Code of
2006 states that an Appeal would lie only
against a final order or decree. It was also
argued that the impugned order is of an
''interim nature' and further proceedings
under Rule 109 still remain to be
completed,
and
the
Sub
Divisional
Magistrate has called for objections to be
filed by the parties. It was also argued that
the First Appeal was barred under Section
209 sub clause (f) of the Code of 2006,
because the said Section specifically states
that no Appeal shall lie against any order or
decree, where such order and "decree is of
an interim nature", yet the Additional
Commissioner admitted the Appeal of the
contesting respondents by a non-speaking
order.

3. The learned counsel for the
petitioner has referred to Section 207 of the
Code of 2006 to state that under the said
Section, a provision has been made for
filing First Appeal and any party aggreived
by a final order or decree passed in any
suit, application or proceeding specified in
column 2 of the Third Schedule, may prefer
a First Appeal to the Court or Officer
specified against it in column 4, where such
order or decree was passed by a court or
officer specified against it. The emphasis
has been laid upon the word "final order" or
"decree". It has been argued that the
preliminary decree is not a final decree
against which a first Appeal would lie
under the Revenue Code.

4. The learned counsel for the
petitioner has argued on the basis of Blacks'
Law Dictionary, defining a preliminary
decree as follows:- "decrees in equity are
either final or interlocutory. Final decree is
one which fully and finally disposes of the
44 INDIAN LAW REPORTS ALLAHABAD SERIES
whole litigation, determining all questions
raised by the case and leaving nothing that
requires
further
judicial
action.
An
interlocutory decree is a provisional or a
preliminary decree, which is not final and
does not determine the suit, but directs
some further proceedings preparatory to
the final decree. It is a decree pronounced
for the purpose of ascertaining matter of
law or fact preparatory to a final decree."

5. It has been submitted on the basis
of Websters' Legal Dictionary that the word
''interim'' means "in the meantime", or
"temporary" and a preliminary decree is
only a temporary decree, as further
proceedings under Section 116, Rule 109,
are still to be concluded before the SubDivisional Magistrate.

6. The learned counsel for the
petitioner has also referred to the Hindi
translation of Section 207 of the Revenue
Code wherein the word used are "Antim
Adesh Ya Decree", to argue that First
Appeal is maintainable only against a final
Adjudication and not at the interim stage
when a preliminary decree is passed by the
Court concerned in a partition suit.

7. The learned counsel for the
petitioner has also referred to Section 209
sub-clause (f), which starts with a nonobstante
clause,
and
says
that
"notwithstanding anything contained in
sections 207 and 208, no Appeal shall lie
against any order or decree.......... where
such order or decree is of an interim
nature." It has been submitted that Section
209 creates a bar against filing Appeals
against orders or decrees which have been
mentioned in the sub-clauses thereof. The
Revenue Court being a special Statute and
enacted later in point of time than the Civil
Procedure
Code,
shall
override
any
provision in Sections 96 or 97 of the C.P.C.
which permit the filing of an Appeal
against a preliminary decree also. It has
been argued that the legislature is supposed
to know all the law existing on the Statute
Book before it enacts a special legislation.
If the legislature has barred any Appeal
then the Civil Procedure Code which is
only procedural law cannot provide that
which is specifically barred into substantial
provisions of a Special Statute. Procedural
law can supplement the Statute but it
cannot be enforced contrary to the original
Statute. If Section 209 (f) specifically says
that against an interim decree no Appeal
lies,
then
such
Appeals
cannot
be
entertained
contrary
to
the
specific
substantive provisions.

8. Learned counsel for the petitioner
has referred to judgement rendered by the
honourable Supreme Court in the case of
Kiran Singh and others versus Chaman
Paswan and others, AIR 1954 Supreme
Court 340, to say that a "decree passed by
a Court without jurisdiction is a nullity and
it's invalidity could be set up whenever and
wherever it is sought to be enforced and
relied upon, even at the stage of execution
and even in collateral proceedings. A defect
of jurisdiction whether it is pecuniary or
territorial, or whether it is in respect of the
subject matter of the action, strikes at the
very authority of the Court to pass any
decree, and such a defect cannot be cured
even by consent of parties."

The learned counsel for the
petitioner placed reliance upon another
Supreme Court decision rendered in
National Institute of Technology and others
versus Niraj Kumar Singh (2007) 2 SCC
481, wherein observations to the same
effect have been made in paragraph 22 of
the Report.
3 All. Amarjeet Vs. State of U.P. & Anr.
45

9. The learned counsel for the petitioner
has further argued that if this court is pleased
to hold that the Appeal is maintainable before
the Additional Commissioner, even then the
order of the Additional Commissioner would
still be vitiated as the Supreme Court in
several cases has already held that a statutory
authority is bound to pass a reasoned order.
The
order
passed
by
the Additional
Commissioner impugned in this writ petition
being a non-reasoned order cannot be
sustained. To give reasons is the Rule of
natural justice and not recording of reasons,
non
consideration
of
evidence,
or
consideration
of
inadmissible
evidence,
renders the order to be unsustainable and
further, failure to disclose reasons in an order
renders it indefensible/unsustainable.

10. The learned counsel for the
petitioner
has
placed
reliance
upon
Coordinate Bench decisions rendered by
this Court in Buddharaj vs. State of U.P.
and others, (2017) 3 ADJ 465, and Hariom
vs. State of U.P. and others, (2013) 6 ADJ
345; wherein this Court had placed reliance
upon judgement of the Supreme Court
rendered in the case of the Secretary and
Curator Victoria Memorial vs Howrah
Gantantrik Nagrik Samiti and others JT
2010 (2) Supreme Court 566; paragraph 31
to 33 whereof are being quoted here in
below :-

"31.
It
is
a
settled
legal
proposition that not only administrative but
also judicial order must be supported by
reasons, recorded in it. Thus, while
deciding an issue, the court is bound to
give reasons for its conclusion. It is the
duty and obligation on the part of the Court
to record reasons while disposing of the
case. The hallmark of an order in exercise
of judicial power in a judicial forum is to
disclose its reasons by it self, and giving of
reasons has always been insisted upon as
one
of
the
fundamentals
of
sound
administration of justice delivery system, to
make known that there had been proper
and due application of mind to the issue
before the Court and also as an essential
requisite of the principles of natural justice.
The giving of reasons for a decision is an
essential
attribute
of
judicial,
and,
judicious disposal of matters before Courts,
and which is the only indication to know
about the manner and quality of exercise
undertaken, as also the fact that the Court
concerned had really applied its mind.
(vide State of Orissa versus Dhani Ram
Luhar JT 2004 (2) Supreme Court 172 ,
and State of Rajasthan versus Sohan Lal
and others (2004) 5 SCC 573)".

The Supreme Court went on to
observe :-"

32. "Reason is the heartbeat of
every conclusion. It introduces clarity in an
order and without the same, it becomes
lifeless. Reasons substitute subjectivity by
objectivity. Absence of reasons renders the
order
indefensible/unsustainable
particularly when the order is subject to
further challenge before a higher forum.
(Raj Kishore Jha versus State of Bihar and
others AIR 2003 Supreme Court 4664;
Vishnu Deo Sharma versus State of Uttar
Pradesh and others (2008) 3 SCC 172;
Steel Authority of India Limited versus
Sales Tax Officer Rourkela 1, Circle, and
others (2008) 9 SCC 407; State of
Uttaranchal and another versus Sunil
Kumar Singh Negi AIR 2008 Supreme
Court 2026; U.P.S.R.T.C. versus Jagdish
Prasad Gupta, AIR 2009 Supreme Court
2328; Ram Pal versus State of Haryana
and others (2009) 3 SCC 258; Mohammad
Yousuf versus Faiz Mohammad and others
(2009) 3 SCC 513; State of Himachal
Pradesh versus Sada Ram and another
(2009) 4 SCC 422)"
46 INDIAN LAW REPORTS ALLAHABAD SERIES

33. "Thus it is evident that the
recording of reasons is a principle of
natural justice and every judicial order
must be supported by reasons recorded in
writing. It ensures transparency and
fairness in decision making. The person
who is adversely affected may know as to
why his application has been rejected."

11. Sri Hemant Kumar Pandey,
learned Standing Counsel, argued that
under Section 207 of the Revenue Code,
2006 appeal would lie against "Final order
or Decree". The expression does not say
that "Final order or final Decree" or "Final
order and Decree". The use of word "or"
between "Final order" and "decree" clearly
indicates that both the expressions "Final
order" and "decree" are separate to each
other. The word 'or' is disjunctive, not
conjunctive. Thus the provision is clear and
unambiguous, and the word 'or' cannot be
read as 'and', therefore, the word "decree" is
separate from expression "Final order".

12. It has been argued by learned
Standing Counsel that the use of the word 'or'
and 'and' whether conjunctive and disjunctive
in form has been discussed in Chapter-V
Syn.7 by the author Justice G.P. Singh in his
book "Principles of Statutory Interpretation",
(9th Edition, 2004) at page 404, which read
as follows:-

"The
word
'or'
is
normally
disjunctive and 'and' is normally conjunctive
at times but they are read as vice-versa, to
give effect to the manifest intention of the
Legislature as disclosed from the context.
One can read 'or' as 'and' in a statute. But it
cannot be done unless one is obliged because
'or' does not generally mean 'and' and 'and'
does not generally mean 'or'. According to
Lord Halsbury the reading of 'or' as 'and' is
not to be resorted to, "unless some other part
of the same statute or the clear intention
which requires that to be done". But if the
literal reading of the words produces an
unintelligible or absurd result 'and' may be
read as 'or even though the result of so
modifying the words is less favourable to the
subject, provided that the intention of the
legislature is otherwise quite clear. Speaking
generally, a distinction may be made between
positive and negative conditions prescribed
by statute for acquiring a right or benefit.
Positive conditions separated by 'or' are read
in the alternative but negative conditions
connected by 'or' are construed as cumulative
and 'or' is read as 'nor' or 'and' (Ref. G.P.
Singh
on
Principles
of
Statutory
Interpretation).

13. The second argument raised by
learned Standing Counsel is that Rule 109 (1)
of the Revenue Rules, 2016 provides that if
the plaint referred to in Rule 107 or Rule 108
is in order, it shall be registered as a suit and
the defendants shall be called upon to file
their written statements. The suit shall then be
decided according to the provisions of the
Code of Civil Procedure, 1908. Therefore,
after institution of the suit for partition under
section 116 of the Revenue Code, only the
provisions of the Code of Civil Procedure,
1908 would apply. Thus the only remedy
available against the Preliminary decree is to
file an appeal under section 207 of the
Revenue Code, 2006 read with Third
Schedule (for sections 206, 207 and 208) of
the Revenue Code, 2006, and if the petitioner
fails to file an appeal against a preliminary
decree he shall be precluded from disputing
its correctness in any appeal which may be
preferred from the final decree.

14. Learned Standing Counsel has
submitted that under Section 97 of the
C.P.C., it has been provided that where any
party aggrieved by a preliminary decree
3 All. Amarjeet Vs. State of U.P. & Anr.
47
passed after the commencement of this
Code does not Appeal from such decree, he
shall be precluded from disputing its
correctness in any Appeal which may be
preferred from the final decree. It has been
argued by the counsel for the State
Respondents Sri Hemant Kumar Pandey
that unless the litigant challenges the
preliminary decree in a First Appeal, he
cannot challenge the correctness of such
Decree in any Appeal which he may prefer
later on from the final decree.

15. The failure to appeal against a
preliminary decree is a bar to raising any
objection to it in the appeal against a final
decree. The Hon'ble Supreme Court in the
case of Chitturi Subbanna vs Kudapa
Subbanna 1965 SCR (2) 661 provides that,
the object of the section is that questions
which have been urged by the parties and
decided by the Court at the stage of the
preliminary decree will not be open for reagitation at the stage of preparation of the
final decree. It would be considered as
finally decided if no appeal is preferred
against it.

16. It has been argued further by Sri
Hemant Kumar Pandey that in the case of
Venkata Reddy v. Pethi Reddy AIR 1963 SC
992, the Supreme Court laid down the
following principle on this aspect of the
matter:--

"A decision is said to be final
when, so far as the Court rendering it is
concerned, it is unalterable except by resort
to such provisions of the Code of Civil
Procedure
as
permit
its
reversal,
modification or amendment. Similarly, a
final decision would mean a decision which
would operate as res judicata between the
parties if it is not sought to be modified or
reversed by preferring an appeal or
revision or a review application as is
permitted by the Code. A preliminary
decree passed, whether it is in a mortgage
suit or a partition suit, is not a tentative
decree but must, in so far as the matters
dealt with by it are concerned, be regarded
as conclusive. No doubt, in suits which
contemplate the making of two decrees -- a
preliminary decree and a final decree--the
decree which would be executable would be
the final decree. But the finality of a decree
or a decision does not necessarily depend
upon its being executable. The legislature
in its wisdom has thought that suits of
certain types should be decided in stages,
and though the suits in such cases can be
regarded as fully and completely decided
only after a final decree is made, the
decision of the Court arrived at the earlier
stage also has a finality attached to it.
Section 97, Code of Civil Procedure clearly
indicates that as to the matters covered by
it, a preliminary decree is regarded as
embodying the final decision of the Court
passing that decree."

17. It has been pointed out by Sri
Hemant Pandey that the Supreme Court in
Mool Chandra and others versus Deputy
Director of Consolidation and others
(1995) 5 SCC 631 was considering the
effect of a notification under section 4 of
the U.P. Consolidation of Holdings act as
provided under section 5(2) of the said Act,
on a Preliminary decree and whether it
would also be abated even if it was not put
under challenge in Appeal in the suit which
stood abated under section 5(2). It was
contended by the Respondents that a suit
for partition or for that matter any other
suit, for example, a suit for redemption or
foreclosure, based on the mortgage, in
which two decrees, viz, a preliminary
decree and a final decree are passed, has to
be distinguished from an ordinary suit in
48 INDIAN LAW REPORTS ALLAHABAD SERIES
which only one decree is passed, and said
that in the case before it if a preliminary
decree for partition had already been
passed, the notification under Section 4
read with Section 52 of the Act would have
the effect of abating the proceedings for
preparation of final decree which were at
the relevant time pending in the Court but
the preliminary decree would not be abated
as it had attained finality. It was contended
that since the rights of the parties had
already been determined by a preliminary
decree for partition, the consolidation
authorities as well as the High Court was
justified in relying upon that decree and in
granting a share to the respondents in the
plots in question. The Supreme Court
considered Sections 4 and section 5 (2) of
the Consolidation of Holdings Act and the
definition of decree given in Section 2 (2)
of Code of Civil Procedure and the
Explanation appended to it. It further
observed while referring to Order 20 Rule
18, and Order 26 Rules 13 and 14, in
paragraphs 12 to 18, that under Order 20
Rule 18 which provides for a decree in a
suit for partition of property or separate
possession of a share therein, the decree
shall declare the rights of several parties
interested in the property and shall direct
the partition or separation of the said shares
to be made by the officer deputed in this
behalf, and if such a decree relates to
movable property whose the partition or
separation cannot be conveniently made
without further enquiry, pass a preliminary
decree declaring the rights of the several
parties interested in the property, and give
such further directions as may be required.
Sub rule (2) of Rule 18 would indicate that
the Court has to pass a preliminary decree
where it cannot immediately partition the
property in respect of which the suit was
filed. Under Order 26 Rules 13 and 14, it is
provided that where a preliminary decree
for partition has been passed the Court may
issue a commission to such person as it
thinks fit, to make partition or separation
according to the rights as declared in such
decree. The commissioner shall after such
enquiry as may be necessary, divide the
property into as many shares as may be
directed by the order under which the
commission was issued, and shall allot such
shares to the parties and may award sums
to be paid for the purpose of equalising the
value of the shares. The commissioner shall
then prepare a signed report or the
Commissioner may prepare even separate
reports, appointing the share of each party
and distinguishing each share by metes and
bounds. The Court after hearing any
objections which the parties may make to
the report or reports, shall confirm vary or
set aside the same. Whether the Court
confirms or varies the report or reports, it
shall pass a decree in accordance with the
same as confirmed or varied; but where the
court sets aside the report or reports, it shall
either issue a new commission or make
such order as it thinks fit. The court
observed in paragraphs 15, 16 and 17 thus:-

15. "the definition of decree
contained in section 2(2) read with
provisions contained in Order 20 Rule 18
(2) as also Order 26 Rule 14 of the Code
indicates that a preliminary decree has first
to be passed in a partition suit and
thereafter a final decree is passed for
actual separation of shares in accordance
with the proceedings held under Order 26.
There are, thus, two stages in a suit for
partition. The first stage is reached when
The preliminary decree is passed under
which the rights of parties in the property
in question are determined and declared.
The second stage is the stage when a final
decree is passed which concludes the
proceedings before the Court and the suit is
3 All. Amarjeet Vs. State of U.P. & Anr.
49
stated to have come to an end for all
practical purposes. (emphasis supplied)

16. "Unless otherwise expressly
provided, suits filed in revenue court under
U.P.Z.A. & L.R. Act are regulated by
provisions of the Code of Civil Procedure
as provided by Section 341 of that Act."

17. "A suit for partition of a
holding is filed under Section 176 of the
U.P. Z.A. & L.R. Act; and Section 178
provides for the modes of division and
Sections 179, 180, 181 and 182 (B) are
other relevant sections. Under Rule 157,
before making a decision the Court shall
determine separately the shares of the
plaintiff and each of the other co-tenure
holders, and record which, if any, of the cotenure holders wish to remain joint, then
make a valuation of the holding or holdings
in accordance with the rent rate applicable
to each plot in the holding and, determine
separately the value of the share of the
plaintiff and each of the co-tenure holder."

The Supreme Court observed in
paragraph 19 as follows:

19. "From a perusal of the above
provisions it would appear that in a suit for
partition, the revenue court also, like the
civil court, has first to pass a preliminary
decree determining and declaring the rights
of the parties and their shares, if any, in the
holding.
Thereafter,
proceedings
for
preparation of the final decree are initiated
under Rules 158 to 164, which lay down the
various modes in which a decree for
partition can be implemented and the
respective shares of the tenure holders
separated, in accordance with the rights
and shares already determined under the
preliminary decree."

18. It has been argued by Sri Hemant
Kumar Pandey that in Mool Chandra
(supra),
the
question
therefore
was,
"whether a notification under Section 4 of
the Consolidation of Holdings Act would
abate the entire suit or will it not affect the
proceedings up to the stage of and
including, preliminary
decree,
if
the
notification was issued after the passing of
the preliminary decree?"

18A.The
Supreme
Court
observed in Mool Chandra Yadav (supra)
paragraph 29 thus:-

29. "there is, thus, a distinction
between a case in which an Appeal is filed
against a preliminary decree and a case in
which a preliminary decree is not Appealed
against and its correctness is not assailed.
If, therefore, a notification under Section 4
of the Act is issued in a case where an
Appeal against the preliminary decree was
not pending, the latter, viz., the preliminary
decree, will remain unaffected and will not
abate but if the preliminary decree has
been assailed in Appeal, and the Appeal is
pending on the date of notification, it will
have the effect of abating the entire
suit/proceedings
including
preliminary
decree passed therein. On the contrary, if
an Appeal is filed against the final decree
without there being any Appeal against the
preliminary decree, and the preliminary
decree becomes unassailable on account of
section 97 of the C.P.C., the notification
under
section
4
would
abate
the
proceedings relating to the final decree,
without in any way touching, impairing or
affecting the preliminary decree. The
reason, to repeat, is obvious. Once a
preliminary
decree
is
passed,
the
proceedings so far as the declaration of
rights or interest in the land are concerned,
come to an end. Those rights are to be
worked out by the final decree. In a case,
therefore where a preliminary decree has
already
been
passed
and
only
the
proceedings relating to preparation of final
decree are pending in any court, either at
50 INDIAN LAW REPORTS ALLAHABAD SERIES
the original stage or at the appellate or
revisional stage, it cannot be said that the
proceedings relating to ''declaration or
determination of rights in the land'' within
the meaning of Section 5(2) of the Act are
pending."

19. The Supreme Court observed that a
preliminary decree is an Appealable decree
and under Section 97 of the Code, if an
Appeal is not filed against a preliminary
decree, its correctness it is not challenged, it
becomes final and the party aggrieved there
by will not be permitted to challenge its
correctness in an Appeal against the final
decree.

20. The Supreme Court relied upon the
observations made in Venkat Reddy versus
Pethi Reddy, AIR 1963 Supreme Court 992;
where it was held that the impact of section
97 is that the preliminary decree, so far as the
matter is covered by it are concerned, is
regarded as embodied in the final decision of
the Court passing the decree. It was observed
in the said case of Venkat Reddy thus: - "A
preliminary decree passed, whether it is in
the mortgage Suit or a partition suit, is not a
tentative degree but must, in so far as the
matters dealt with by it are concerned, be
recorded as imparting - - - the final decision
of the court passing that decree.

21. The Supreme Court relied upon
observations made in Gyarsi Bai versus
Dhansukh Lal, AIR 1965 Supreme Court
1055 wherein it was observed :- "it is true
that a preliminary decree is final in respect
of the matters to be decided before it is
made........ It is undisputable that in a
mortgage suit there will be two decrees
namely, preliminary decree and final
decree, and that ordinarily the preliminary
decree settles the rights of the parties and
the final decree works out those rights."

22.

Recently
in
the
case
of
Bhivchandra Shankar More vs. Balu
Gangaram More and Ors, (2019) 6 SCC
387, the Hon'ble Supreme Court observed
that where any party aggrieved by a
preliminary decree does not appeal from
such decree, he shall be precluded from
disputing its correctness in any appeal
which may be preferred from the final
decree. The object is that the questions
decided by the Court at the stage of passing
preliminary decree cannot be challenged at
the time of final decree. If no appeal had
been preferred against the preliminary
decree, the suit filed by the Respondentsplaintiffs being a suit for partition, the
Appellant would be deprived of the
opportunity in challenging the decree on
merits.

23. With regard to the arguments
raised by the learned counsel for the
petitioner that the respondent had remedy
of filing a Revision before this court or the
Board of Revenue under Section 210 of the
Code of 2006, learned counsel for the State
Respondents
has
submitted
that
the
jurisdiction in Revision is very limited. The
Supreme Court in Hari Shankar vs Rao
Girdhari Lal Chowdhury, 1963 AIR SC
698, emphasized the basic distinction
between an Appeal and a Revision:

"The
distinction
between
an
appeal and a revision is a real one. A right
of appeal carries with it a right of
rehearing on law as well as fact, unless the
statute conferring the right of appeal limits
the rehearing in some way as, we find, has
been done in second appeals arising under
the Code of Civil Procedure. The power to
hear a revision is generally given to a
superior Court so that it may satisfy itself
that a particular case has been decided
according to law. Under section 115 of the
3 All. Amarjeet Vs. State of U.P. & Anr.
51
Code of Civil Procedure the High Court's
powers are limited to see whether in a case
decided, there has been an assumption of
jurisdiction where none existed, or a
refusal of jurisdiction where it did, or there
has been material irregularity or illegality
in the exercise of that jurisdiction. The
right there is confined to jurisdiction and
jurisdiction alone. In other acts, the power
is not so limited, and the High Court is
enabled to call for the record of a case to
satisfy itself that the decision therein is
according to law and to pass such orders in
relation to the case, as it thinks fit."

24.

The
same
principle
was
enunciated in a subsequent decision in Shiv
Shakti Cooperative Housing Society vs. M/s
Swaraj Developers and Others, reported at
2003 (6) SCC 659 where it was held as
follows:

"An appeal is continuation of the
proceedings;
in
effect
the
entire
proceedings are before the appellate
authority and it has power to review the
evidence subject to statutory limitations
prescribed. But in the case of revision,
whatever powers the revisional authority
may or may not have, it has no power to
review the evidence, unless the statute
expressly confers on it that power."

25. It has also been argued by the
learned counsel appearing for the State
Respondents that under Rule 109 of the
Rules framed under the Revenue Code, it
has been provided that a Suit under Section
116 of the U.P. Revenue Code shall be
registered as a regular suit and it shall
proceed in accordance with the provisions
of the Civil Procedure Code. It has hence
been argued that it is settled law that once
the word "shall" is used, it is mandatory in
nature and therefore all the provisions of
the C.P.C. relevant for deciding the
partition suit would apply in matters filed
under the Revenue Code under

26. Having heard the learned counsel
for the parties, this Court shall consider the
statutory provisions first. Under the U.P.
Revenue Code 2006 Section 4 sub-section
26 of the Definitions clause says, "decree"
shall have the same meaning as assigned to
it in the Code of Civil Procedure, 1908.

Under
the
Code
of
Civil
Procedure, 1908 Definitions clause, under
sub-section 2 states, that "decree" ''means
the formal expression of an adjudication
which, so far as regards the court
expressing it, conclusively determines the
rights of the parties with regard to all or
any of the matters in controversy in the suit,
and maybe either preliminary or final.' It
shall be deemed to include the rejection of
plaint, and the determination of any
question within section 144, but shall not
include: a) any adjudication from which an
Appeal lies as an Appeal from an order, or
any order of dismissal for default. In the
Explanation attached to sub-section 2, it
has been mentioned that "a decree is
preliminary when further proceedings have
to be taken before the suit can be
completely disposed of. It is final when
such adjudication completely disposes of
the suit. It may be partly preliminary and
partly final."

27. Section 96 of the C.P.C. refers to
an Appeal from an original degree. It
provides thus:- "1) Save as otherwise
expressly provided in the body of this Code
or, by any other law for the time being in
force, an Appeal shall lie from every decree
passed by any court exercising original
jurisdiction to the court authorized to hear
Appeals from the decisions of such Court;
52 INDIAN LAW REPORTS ALLAHABAD SERIES
2) an Appeal may lie from an original
decree passed ex parte; 3) no Appeal shall
lie from the decree passed by the court with
the consent of the parties; 4) no Appeal
shall lie except on a question of law from a
decree in any suit of the nature cognizable
by the Courts of Small Causes, when the
amount of value of the subject matter of the
original suit does not exceed Rs.10,000.

28. It is apparent from a bare perusal
of the language of Section 96 that it
provides for an Appeal against any decree
unless it is otherwise provided for under
the C.P.C., or under any other law for the
time being in force. This Court shall also
consider as to whether the Revenue Code
2006 can be considered to be special law
governing the right to prefer an Appeal?

29. Section 97 of the CPC provides:-

"Where any party aggrieved by a
preliminary
decree
passed
after
the
commencement of this Code does not
appeal from such decree, he shall be
precluded from disputing its correctness in
any appeal which may be preferred from
the final decree."

30. The relevant provisions of the
U.P. Revenue Code are now being
considered. The relevant extract of Section
116 and 117 of the Code of 2006 is being
quoted hereinbelow:-

"Section 116. Suit for division of
holding - (1) A Bhumidhar may apply for
the division of the holding of which he is a
co-sharer.

(2) in every such suit, the court
may also divide the trees, wells and other
improvements existing on such holding, but
where such a division is not possible, the
trees,
wells
and
other
improvements
aforesaid, and valuation thereof, shall be
divided and adjusted in the manner
prescribed.

4) to every suit under this section,
the gram Panchayat concerned shall be
made a party.

Section 117 Duty of the court in
suits for division of holdings - (1) in every
suit for division of holding under section
116, the court of assistant collector shall -

(a) follow such procedure as may
be prescribed;

(b) apportion the land revenue
payable in respect of each such division.

(c) a division of holding referred
to in section 116 shall not affect the joint
liability of the tenure holders thereof in
respect of the land revenue payable before
the date of the final decree."

31. The supplemental procedural
provisions to Section 116 of the Code are
given under Rule 109 of the Rules.