# Man Singh v. Board of Revenue & Ors

- **Citation:** (2022) 11 ILRA 84
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-12
- **Case number:** Writ B No. 47327 of 2013
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/man-singh-v-board-of-revenue-ors-47891
- **Pages:** 7

## Headnote

A. Civil Law - U.P. Land Revenue Act,
1901-Section 34-Since jurisdiction u/s 34
of the Act once has been exercised by
trial court on the basis of evidence on
record after affording opportunity of
hearing to the parties as such there
should be no interference against the
order of trial court unless there is any
error in the order but the appellate Court
has illegally allowed the appeal against
the order passed by trial court and
remanded the matter before trial court for
fresh consideration of evidence without
taking into consideration the principles of
merger as the order of trial court has been
merged in the final order of Revisional
Court
by
which
revision
filed
by
respondent no. 4 (daughter of deceased)
has been dismissed and order of trial court
has
been
maintained-Hence,
the
impugned orders are liable to set
aside.(Para 1 to 15)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

84 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner in the revenue record in respect
to disputed plots within period of six weeks
from the date of production of the certified
copy of this order.

16. No order as to costs.
----------
(2022) 11 ILRA 84
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 47327 of 2013

Man Singh ...Petitioner
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhishek Kumar, Dr. Shrinarayan Singh
Yadav

Counsel for the Respondents:
C.S.C., Sri Arun Kumar, Sri M. Sarwar Khan,
Sri Manoj Kumar Yadav, Sri Ram Sajiwan
Prajapati, Sri Ramakant Tiwari, Sri Umesh
Chandra Tiwari, Sri Alok Sharma

A. Civil Law - U.P. Land Revenue Act,
1901-Section 34-Since jurisdiction u/s 34
of the Act once has been exercised by
trial court on the basis of evidence on
record after affording opportunity of
hearing to the parties as such there
should be no interference against the
order of trial court unless there is any
error in the order but the appellate Court
has illegally allowed the appeal against
the order passed by trial court and
remanded the matter before trial court for
fresh consideration of evidence without
taking into consideration the principles of
merger as the order of trial court has been
merged in the final order of Revisional
Court
by
which
revision
filed
by
respondent no. 4 (daughter of deceased)
has been dismissed and order of trial court
has
been
maintained-Hence,
the
impugned orders are liable to set
aside.(Para 1 to 15)

The writ petition is allowed. (E-6)

List of Cases cited:
1. Paras Nath & anr. Vs DDC, Varanasi & ors.
(2010) 110 RD pg 595

2. Bih. St. Govt. Sec. School Teachers Assn. Vs
Bih. Edu. Service Assn & ors. (2013) AIR SC 487

3. Bhagwati Developers Pvt. Ltd. Vs Peerless
General Finance Investment Co. Ltd. & ors.
(2013) 5 SCC 455

4. Nanhey & anr. Vs DDC, Kanpur & ors. (1975)
AWC 1

5. Shankar Ramchandra Abhyakar Vs Krishnaji
Dattatraya Bapat (1970) AIR Supreme Court 1

6. Bhagwah Developers Pvt Ltd VS Peerless
General Finance Investment Co. Ltd & ors.
(2013) 5 SCC 455

7. Saumya Co-operative Housing Society, Alld.
thru its secy. Vs St. of U.P. & ors. (2012) 115
RD 187

8. Smt. Kalawati Vs the Board of Revenue & ors.
(2022) 0 Supreme All 281

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. Abhishek Kumar,
Counsel for the petitioner, Mr. Alok
Sharma, Advocate, holding brief of Mr.
Ram Sajiwan Prajapati and Mr. Rama Kant
Tiwari, Counsel for respondent No.3 as
well as learned Standing Counsel for
respondent Nos.1 and 2.

2. The brief facts of the case are that
Lalla Prasad had three marriages in his life
time.
His
first
wife
was
Dhankali.
11 All. Man Singh Vs. Board of Revenue & Ors.
85
Contesting respondent No.3- Daljeet was
born from wedlock of Lalla Prasad and
Dhankali. After one year of marriage
Dhankali left the house of her husband
accordingly Lalla Prasad solemnized his
second marriage with Gaura Devi and from
the wedlock of Lalla Prasad and Gaura
Devi
two
daughters
Heerawati
and
Bhanwati were born, who are married.
Second wife Gaura died in the life time of
Lalla Prasad accordingly Lalla Prasad was
married with Champa @ Chameli and from
the wedlock of Lalla Prasad and Champa
@ Chameli, petitioner Man Singh was
born. Lalla Prasad died on 23.08.2004 and
after the death of Lalla Prasad, name of
petitioner and respondent No.3 were
recorded by the Registrar Kanoongo vide
order dated 31.03.2004 in the place of Lalla
Prasad in respect to village-Sidhwa and in
respect to village-Mayee report under
Section 34 of U.P. Land Revenue Act was
filed by respondent No.3 that his name
solely be recorded in the place of deceased
Lalla Prasad, the cases were consolidated
and registered as Case No.333 before
Tehsildar (Judicial) Mariyahoo, Jaunpur,
both parties adduced oral and documentary
evidence
in
support
of
their
cases.
Tehsildar after considering the evidences
adduced by both parties in detail has held
vide order dated 10.07.2007 that petitioner
and respondent No.3 are sons of Lalla
Prasad
and
rejected
the
mutation
application filed by respondent No.3 to
record his name solely in the place of Lalla
Prasad, the order of Registrar Kanoogo
dated 31.03.2004 was maintained. Against
the order dated 10.07.2007 respondent
No.4 filed Revision No.380 of 2007 before
Commissioner,
the
petitioner
and
respondent
No.3
were
impleaded
as
opposite parties in the revision who have
contested the proceeding of revision,
respondent
No.3
has
prayed
before
Additional Commissioner that revision of
respondent No.4 be allowed, the Additional
Commissioner vide order dated 25.02.2011
dismissed the revision filed by respondent
No.4 and maintained the order of Tehsildar
dated 10.07.2007. Against the order dated
10.07.2007 respondent No.3 filed an appeal
under Section 210 of U.P. Land Revenue
Act before Sub Divisional officer and the
pandency of the revision against the same
impugned order dated 10.07.2007 was
brought to the notice of appellate Court
(Sub Divisional officer) but appellate court
vide order dated 21.03.2013 allowed the
appeal filed by respondent No.3 set aside
the order dated 10.07.2007 and remanded
the matter for fresh decision by Tehsildar.
Petitioner challenged the appellate order
dated 21.03.2013 through revision under
Section 333 of U.P.Z.A. & L.R. Act before
respondent
No.1,
the
revision
was
dismissed by respondent No.1 vide order
dated 03.06.2013 hence this writ petition
on behalf of petitioner.

3. This Court at the time of admission
after hearing counsel for the petitioner as
well as respondent No.3 passed the detailed
interim order dated 06.09.2013 which is as
follows:

"Heard Shri Abhishek Kumar,
learned counsel for the petitioner and Shri
Sarwar
Khan,
learned
counsel
for
respondent no.3.

Issue notice to respondent no.4
returnable at an early date. Steps within 10
days.

Shri Manoj Kumar Yadav has
accepted notice on behalf of respondent
no.5 and learned Standing Counsel has
accepted notice on behalf of respondents
No.1 and 2. Learned counsel is permitted to
implead
the
concerned
Tehsildar
as
Respondent No.6 on whose behalf also the
86 INDIAN LAW REPORTS ALLAHABAD SERIES
learned
standing
counsel
shall
seek
instructions.

An order came to be passed by
the Tehsildar in relation to mutation of the
holding on 10th July 2007, whereby the
petitioner and respondent no. 3 Daljeet
were both treated to be sons of the
deceased tenure holder Lalla Prasad.
Aggrieved the respondent no.3 filed an
appeal contending that the petitioner is not
the son of Lalla Prasad.

According to the pedigree as
disclosed at page 30 of the paper book one
Smt. Manbhawati, one of the daughters of
late Lalla Prasad filed a revision against
the order dated 10.7.2002 before the
Additional Commissioner under SEction
2/9 of the 1901 Act for setting aside the
order. The respondent no.3 Daljeet also
contested the said revision and conceded
that the order dated 10.7.2007 deserves to
be set aside and he will have no objection
to the same. This was obviously done
because the respondent no.3 had also filed
an appeal against the same order under
SEction 210 of the 1901 Act which was
pending before the Sub-Divisional Officer.

The
revisional
authority
after
assessing the entire evidence that had been
considered by the Tehsildar recorded its
own findings by reciting that the petitioner
and the respondent no.3 are brothers and
are sons of the same father namely Lalla
Prasad. The revision was allowed on
25.2.2011.

It is, therefore, obvious that
respondent no.3 was a party to the said
proceedings
before
the
learned
Commissioner where this finding was
recorded.

During the pendency of the
appeal, this fact of the order of the
Commissioner
dated
25.2.2011
was
brought to the notice of the Sub-Divisional
Officer who was hearing the appeal filed by
respondent
no.3.
The
Sub-Divisional
Officer without recording any finding with
regard to the impact of the said order of the
learned Commissioner has allowed the
appeal and has set aside the order dated
10.7.2007 which had already been upheld
by the learned Commissioner.

Shri Abhishek submits that the
principles of merger would apply inasmuch
as
even
though
they
are
summary
proceedings the order of the Tehsildar
dated 10.7.2007 has already merged into
the order dated 25.2.2011 of the superior
authority under Section 219 of the U.P. of
Land Revenue Act, 1901 namely the order
of the learned Commissioner which has
remained unchallenged. Shri Abhishek
Kumar has relied upon three decisions to
substantiate his submissions namely Paras
Nath and another vs. Deputy Director of
Consolidation,
Varanasi
and
others
reported in 2010 (110) RD page 595;
Bihar State Govt. Secondary School
Teachers Association v. Bihar Education
Service Association and Ors AIR 2013 SC
487 and Bhagwati Developers Private
Limited vs. Peerless General Finance
Invstment Company Limited and others
(2013) 5 SCC 455.

He therefore, contends that the
same will have a direct impact on the
proceedings of the appeal before the SubDivisional Officer arising out of the same
impugned order, and having not considered
the same which was a relevant material,
the order of the Sub-Divisional Officer is
perverse. He has placed reliance upon the
Full Bench decision of this Court in
Nanhey and anor vs.Deputy Director of
Consolidation, Kanpur & others reported
in 1975 AWC 1 to urge that nonconsideration of relevant material amounts
to perversity.

Prima facie, after having heard
Shri Sarwar Khan who has taken the Court
11 All. Man Singh Vs. Board of Revenue & Ors.
87
to the merits of the matter, the contention of
the petitioner appears to be correct.

1. All the respondents may file
counter affidavit within three weeks.

Rejoinder affidavit may be filed
within a week thereafter.

List thereafter.

Until further orders of the Court,
all further proceedings before the Tehsildat
pursuant to the remand order dated
21.3.2013 passed by the Sub-Divisional
Officer shall remain stayed."

4. Counsel for the respondent No.3
has filed his counter affidavit and the
petitioner has filed rejoinder affidavit.
Respondent No.4 has not put in appearance
although
service
is
sufficient
upon
respondent No.4 as per office report dated
11.02.2019.

5.

Counsel
for
the
petitioner
submitted that trial court (Tehsildar) has
decided the application under Section 34 of
U.P. Land Revenue Act taking into
consideration each and every evidence
adduced by the parties and held that
petitioner and respondent No.3 are sons of
late Lalla Prasad as such the case of
respondent No.3 that respondent No.3 is to
recorded exclusively was rejected and the
judgment of trial court was maintained in
revision under Section 219 of U.P. Land
Revenue Act at the instance of respondent
No.4 but appellate Court has illegally
entertained the appeal under Section-210 of
U.P. Land Revenue Act against the order of
trial Court, even allowed the appeal and
remanded the matter before trial court for
fresh decision which is wholly illegal on
the Principles of merger. He further
submitted
that
once
revisional
court
exercise the jurisdiction under Section-219
of U.P. Land Revenue Act by dismissing
the Revision on merit and maintaining the
order of trial court dated 10.07.2007 then
proceeding before appellate court against
the same order of trial court dated
10.07.2007 will be barred by principle of
res judicata also. He further submitted that
appellate
order
dated
21.03.2013
is
perverse. He further submitted that even on
merit the appellate court can not remand
the matter before trial court as trial court
has already decided the proceeding under
Section-34 of U.P. Land Revenue Act after
considering each and every evidence on
record as such impugned orders be set aside
and order of trial court dated 10.07.2007 be
maintained.

6.

He
further
submitted
that
respondent No.1 without considering the
evidence available on record dismissed the
petitioner's revision. Counsel for the
petitioner placed reliance upon following
judgment of Apex court as well as of this
court on the point of principle of merger:

(1) AIR 1970 Supreme Court 1

Shankar Ramchandra Abhyakar
Vs.Krishnaji Dattatraya Bapat.

(2) AIR 2013 SC 487

Bihar State Govt Secondary
School Teachers Association vs. Bihar
Education Service Association and others.

(3) (2013) 5 SCC 455

Bhagwah
Developers
Private
Limited Vs. Peerless General Finance
Investment Company Limited and others.

(4) 2010 (110) RD 595

Para Nath and another vs
Deputy
Direction
of
Consolidation
Varanasi and others.

On the point of perversity of
judgment of appellate Court Counsel for
petitioner placed reliance upon 1975 AWC.
1 Nanhey and another Vs. Deputy
Director of Consolidation Kanpur and
others.
88 INDIAN LAW REPORTS ALLAHABAD SERIES

On the point of maintainability of
the writ petition under Article 226 of the
Constitution of India against the order
passed in summary proceedings under
Section 34 of U.P. Land Revenue Act,
1901 Counsel for the petitioner placed
reliance upon judgment of this Court
reported in 2012 (115) R.D. 187 Saumya
Co-operative Housing Society Allahabad
through its secretary Versus State of
U.P. and others in which it is held that
writ petition would be maintainable against
orders which are without jurisdiction or are
otherwise perverse. Para No.17 of the
judgment is relevant which is as follows:

"..........17. Coming to the issue
of jurisdiction, suffice it to say that even in
matters of mutation this Court in the case
of Lal Cahan V. Board of Revenue, U.P.
Lucknow and others, has held that a writ
petition would be maintainable against
orders which are without jurisdiction or
are otherwise perverse. As would be seen
presently, the present writ petition also
falls within the same category inasmuch
as the Sub-Divisional Magistrate, while
passing the order dated 25.08.2008 has
failed to record any provision which may
empower him to act and proceed contrary
to the directions of the collector contained
in the order dated 24.10.2007."

7. On the other hand Counsel for
respondent No.3 submitted that petitioner is
not son of Lalla Prasad rather he is nephew
of Lalla Prasad as such petitioner cannot
succeed the property of Lalla Prasad. He
further submitted that appeal filed by
respondent No.3 has been rightly allowed
by Sub Divisional officer as the evidence
on
record
have
not
been
properly
considered by trial court. He further
submitted that revision which was filed
against the order of trial court was at the
instance of respondent No.4 as such
dismissal of the same will not come in the
way of respondent No.3 who has filed
appeal under Section 210 of U.P. Land
Revenue Act and the same was rightly
allowed and remanded before trial court for
fresh consideration of evidence. He further
submitted that writ petition filed by
petitioner against the remand order passed
by appellate Court arising out of summary
proceeding under Section-34 of U.P. Land
Revenue Act 1901 is not maintainable and
liable to be dismissed. Counsel for the
respondent No.3 placed reliance upon
judgment of this Court in the Case of Smt.
Kalawati Vs. the Board of Revenue and
others 2022 0 Supreme (All) 281 in order
to demonstrate that writ petition arising out
of mutation proceeding under Section 34 of
U.P.
Land
Revenue
Act
is
not
maintainable.

8. I have considered the argument
advanced by learned counsel for the parties
and perused the records.

9. There is no dispute about the fact
that trial court (Tehsildar) has held that
mutation application filed by respondent
No.3 is liable to be rejected and the order
dated 31.03.2004 passed by Revenue
Inspector for recording the name of
petitioner as well as respondent No.3 being
sons of deceased Lalla Prasad is in
accordance with law, the order of trial court
was maintained in Revision although at the
instance of respondent No.4 (married
daughter of Lalla Prasad) but in the
revision respondent No.3 also contested the
revisional
proceeding,
the
order
of
revisional court dated 25.02.2011 has
attained finality but appellate Court in
appeal filed by respondent No.3 against the
same, order of trial court dated 10.07.2007
has set aside the order dated 10.07.2007
11 All. Man Singh Vs. Board of Revenue & Ors.
89
and remanded the matter vide his order
dated 21.03.2013 before trial court for fresh
consideration in spite of the fact brought
into the notice of the appellate court that
revision filed against the order of trial court
has already been dismissed vide order
dated 25.02.2011.

10. Since jurisdiction under Section
34 of U.P. Land Revenue Act once has
been exercised by trial court on the basis of
evidence
on
record
after
affording
opportunity of hearing to the parties as such
there should be no interference against the
order of trial court unless there is any error
in the order but the appellate Court has
illegally allowed the appeal against the
order passed by trial court under Section 34
of U.P. Land Revenue Act and remanded
the matter before trial court for fresh
consideration of evidence without taking
into consideration the principles of merger
as the order of trial court dated 10.07.2007
has been merged in the final order of
Revisional Court dated 25.02.2011 by
which revision filed by respondent No.4
has been dismissed and order of trial court
dated 10.07.2007 has been maintained.

11. Principles of Merger has been
considered by the Apex Court as well as by
this Court in the cases cited by learned
Counsel for the petitioner, in the case of
Shankar
Ram
Chandra
Abhyankar
(Supra) the Apex Court has held as follows
in paragraph Nos. 8 and 9.

"8. Even on the assumption that
the order of the appellate court had not
merged in the order of the single Judge
who had disposed of the revision petition
we are of the view that a writ petition
ought not to have been entertained by the
High Court when the respondent had
already chosen the remedy under Section
115 of the CPC. If there are two modes of
invoking the jurisdiction of the High
Court and one of those modes has been
chosen and exhausted it would not be a
proper and sound exercise of discretion to
grant relief in the other set of proceedings
in respect of the same order of the
subordinate court. The refusal to grant
relief in such circumstances would be in
consonance with the anxiety of the court
to prevent abuse of process as also to
respect and accord finality to its own
decisions.

9. In the result the appeal is
allowed and the judgment of the division
bench of the High Court is hereby set
aside. The appellant shall be entitled to
costs in this Court."

12. In the present case although
respondent No.3 has not filed revision
against the order of trial court rather
respondent No.4 (daughter of deceasedLalla Prasad) filed revision and respondent
No.3 as well as petitioner contested the
revisional proceeding which has resulted
into dismissal of revision holding that
petitioner and respondent No.3 both being
sons will have right and affirmed the order
of trial court dated 10.07.2007 as such
principle of merger will apply.

13. So far as jurisdiction under Article
226 of the Constitution of India against the
order of mutation Court under Section 34
of U.P. Land Revenue Act, 1901 is
concerned in view of ratio of law laid down
in Saumya Co-operative Housing Society
(Supra) and Smt. Kalawati (Supra) in
which it has been held that if the order of
mutation court is without jurisdiction then
interference can be made in exercise of writ
jurisdiction under Article 226 of the
Constitution of India. In the present case
appellate order dated 21.03.2013 is without
90 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction as the revisional court had
already dismissed the revision against the
order of trial court which attained finality
as such appellate court had no jurisdiction
to allow the appeal against the same order
of trial court.

14. Since the order of trial court dated
10.07.2007 passed under Section 34 of U.P.
Land Revenue Act 1901 under which
petitioner and respondent No.3 were
ordered to be recorded in the revenue
records in the place of deceased tenure
holder as such the petitioner's claim for
exclusive right can be examined in the
regular suit and for that relief petitioner can
avail remedy of suit for declaration of his
exclusive right and title in respect to
disputed plots.

15. Considering the entire facts and
circumstances of the case as well as ratio of
law laid down by Apex Court on the
principles of merger as well as of this Court
on the point of perversity and jurisdiction,
the impugned order dated 03.06.2013
passed by respondent No.1 and 21.03.2013
passed by respondent No.2 are liable to be
set aside and are hereby set aside. The writ
petition stands allowed. No order as to
costs.
----------
(2022) 11 ILRA 90
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 49499 of 2015

Mahendra Singh & Anr. ...Petitioners
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ramesh Chandra, Sri S.C. Varma

Counsel for the Respondents:
C.S.C., Sri Amresh Singh, Sri Brijesh Kumar
Verma, Sri Krishna Mohan, Sri Mohit Kumar,
Sri Rajeev Misra, Sri Rajesh Kumar, Sri Rajiv
Misra, Sri Shiv Nath Singh (Sr. Advocate),
Sri Sher Bahadur Singh

A. Civil Law - Code of Civil Procedure, 1908Order 47 Rule 1-U.P. Zamindari Abolition
and Land Reforms Act, 1950- Section 229-BReview-Delay of 22 years-petitioners filed
two suits u/s 229-B, which got decreedSecond review application filed by State and
Gaon Sabha has been allowed after 22 years
of the date of judgment of the Board of
revenue-Board
of
revenue
illegally
condoned and allowed application ignoring
the provisions under Order 47, Rule 1, CPCImpugned judgment of Board of revenue is
set aside.(Paras 1 to 12)

B. Under Order 47 Rule 1 CPC a judgment
may be open to review inter alia if there is
a mistake or an error apparent on the face
of record. An error which is not self-evident
and has to be detected by a process of
reasoning, can hardly be said to be an error
apparent on the face of the record
justifying the court to exercise its power of
review under Order 47 Rule 1 CPC. In
exercise of the jurisdiction under Order 47
Rule 1 CPC it is not permissible for an
erroneous decision to be "reheard and
corrected". A review petition, it must be
remembered has a limited purpose and
cannot be allowed to be "an appeal in
disguise."(Para 9)

The writ petition is allowed. (E-6)

List of Cases cited:
1. Collector,Land Acqn. Anantnag & anr. Vs Mst.
Katji & ors. (1987) AIR SC 1353

2. Esha Bhattacharjee Vs Managing Committee
of Raghunathpur Nafar Academy & ors. (2013)
12 SCC 649