# Manish Shukla v. Board of Revenue & Ors

- **Citation:** (2023) 3 ILRA 1050
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-21
- **Case number:** Writ -C No. 31271 of 2022
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manish-shukla-v-board-of-revenue-ors-49770
- **Pages:** 6

## Headnote

CiviL Law - U.P. Revenue Code, 2006 -
Section 144 - Declaratory suit - Declaratory
suit dismissed without framing issue - Held - if
no issue has been framed on a question which
arises out of the pleading of the parties, the
Court cannot proceed to record a finding on that
point - judgment passed by the Trial Court
cannot be maintained on merit (Para 10)

Civil Law -U.P. Revenue Code, 2006-
Section 144 - Limitation - there is no limitation
for filing suit for declaration under Section 229 B
of U.P.Z.A. & L.R. Act (Para 12)

Constitution of India, 1950 -Article, 226
- Quashing of order - an order, which is
illegal, cannot be quashed or set aside in writ
jurisdiction, if quashing of it, results in
bringing on record another illegal order- if as
a result of quashing of an order, another
wrong and illegal order would be restored,
High Court under Article would refuse to
interfere with the impugned order which
appears to be quite proper equitable and just
order (Para 13)

Dismissed. (E-5)

List of Cases cited:

## Text

1050 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 3 ILRA 1050
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ -C No. 31271 of 2022

Manish Shukla ...Petitioner
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar, Sri Chandrama Singh

Counsel for the Respondents:
C.S.C., Sri Dheeraj Kumar Dwivedi

CiviL Law - U.P. Revenue Code, 2006 -
Section 144 - Declaratory suit - Declaratory
suit dismissed without framing issue - Held - if
no issue has been framed on a question which
arises out of the pleading of the parties, the
Court cannot proceed to record a finding on that
point - judgment passed by the Trial Court
cannot be maintained on merit (Para 10)

Civil Law -U.P. Revenue Code, 2006-
Section 144 - Limitation - there is no limitation
for filing suit for declaration under Section 229 B
of U.P.Z.A. & L.R. Act (Para 12)

Constitution of India, 1950 -Article, 226
- Quashing of order - an order, which is
illegal, cannot be quashed or set aside in writ
jurisdiction, if quashing of it, results in
bringing on record another illegal order- if as
a result of quashing of an order, another
wrong and illegal order would be restored,
High Court under Article would refuse to
interfere with the impugned order which
appears to be quite proper equitable and just
order (Para 13)

Dismissed. (E-5)

List of Cases cited:

1. Babu Vs Mahaveer 2020 RD (140) 186
2. Kaniz Fatima & anr. Vs Shah Naim Ashraf AIR
1983 Allahabad 450

3. Pan Kumari Vs Board of Revenue, U.P. at
Allahabad & ors. 2005 (99) R.D. 529

4. Paras Nath Singh Vs Deputy Director of
Consolidation & ors. 1985 R.D. 71

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

1. Counsel for the petitioner is
permitted to implead Upziladhikari, Kanpur
Nagar as respondent No.5 in the array of
parties during the course of day.

2. Heard Mr. Ajay Kumar, Counsel
for the petitioner, learned Standing Counsel
for the State-respondents and Mr. Dheeraj
Kumar Dwivedi for respondent No.4.

3. The instant petition has been filed
against the order of Board of Revenue
dated 26.4.2022, by which, the second
appeal filed by respondent No.4 has been
allowed setting aside the judgment of the
Courts below and proceeding of the suit has
been remitted back before the Trial Court to
decide the suit afresh after impleadment of
the Gaon Sabha.

4.

Counsel
for
the
petitioner
submitted that the suit under Section 144 of
the U.P. Revenue Code, 2006 filed by
respondent No.4 has been dismissed by the
Trial Court and the decree has been
maintained in first appeal but Appellate
Court has arbitrarily allowed the second
appeal and remitted the matter back before
the Trial Court for fresh trial. He further
submitted that suit for declaration filed by
respondent No.4 was rightly dismissed by
Trial Court and First Appellate Court as no
claim was raised during consolidation
operation. He further submitted that Second
3 All. Manish Shukla Vs. Board of Revenue & Ors.
1051
Appellate
Court
has
exceeded
his
jurisdiction in allowing the second appeal,
as such, the impugned judgment be set
aside against the order of Trial Court.

5. In reply, Counsel for respondent
No.4 submitted that suit under Section 144
of the U.P. Revenue Code, 2006, filed by
respondent No.4 has been dismissed
without framing issues and giving parties to
lead the evidence according to the issues
framed in the suit as such the same was
wholly illegal. He further submitted that
there is no limitation for filing the suit
under Section 144 of the U.P. Revenue
Code, 2006 but the plaintiff suit has been
dismissed arbitrarily holding that it is
barred by limitation. He further submitted
that Second Appellate Court has allowed
the second appeal and remitted the matter
back for filing fresh suit under Section 144
of the U.P. Revenue Code, 2006.

6. Counsel for the respondent No. 4
placed reliance upon the judgment of this
Court reported in 2020 RD (140) 186 Babu
vs. Mahaveer in which it has been held that
unless the issues are framed in the suit for
declaration under Section 144 of the U.P.
Revenue Code, 2006, the judgment cannot
be passed on merit. He further submitted
that there is no limitation for filing suit
under Section 144 of U.P. Revenue Code,
2006. He finally submitted that no
interference is required against the order of
Board of Revenue by which the matter has
been remanded back to the Trial Court to
decide the suit afresh on merits.

7. I have considered the arguments
advanced by learned counsel for the parties
and perused the record.

8. There is no dispute about the fact
that the suit under Section 144 of U.P.
Revenue Code, 2006 filed by respondent
No.4 has been dismissed without framing
issue in the suit.

9. There is also no dispute about the
fact that the suit has been dismissed on the
ground of limitation also and the judgment
and decree of the Trial Court has been
maintained in First Appeal but in Second
Appeal, the judgments of Trial Court and
First Appellate Court have been set aside
and the matter has been remanded back to
the Trial Court to decide the suit afresh on
merit.

10. Since, the suit under Section 144
of U.P. Revenue Code, 2006 has been
decided without framing issue, as such, in
view of ratio of law laid down by this Court
in Babu (Supra), judgment passed by the
Trial Court cannot be maintained on merit.
The paragraph Nos. 2, 3, 4, 5 & 6 of the
judgment rendered in Babu (Supra) is
relevant for perusal which are as under:-

"2. The manner in which the suit
instituted by the respondent no.1 under
Section 229-B of U.P. Z.A. & L.R.Act has
been decided by the impugned order dated
28.01.2019 cannot be appreciated. The
trial court has neither framed issues nor
has provided any opportunity of leading
evidence to the parties to prove their
respective cases. The provisions contained
in Code of Civil Procedure has been given
a go bye.

3. As already observed above by the
Court in its order dated 21.02.2019, the
proceedings under Section 229-B of
U.P.Z.A
&
L.R
Act
are
regular
proceedings where declaration of rights in
a holding is decided on the basis of
evidence.

4. Learned counsel for respondent
no.1 has also not been able to defend the
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order; rather he appears to
agree that the matter ought to have been
remanded to the Sub-Divisional Officer
concerned.

5. For the aforesaid reasons, this
petition is allowed and the judgment and
order dated 28.01.2019 passed by the SubDivisional Officer, Malihabad, Lucknow
in
Computerized
Case
No.T201810460101621; Mahavir vs Babu
and others, under Section 229-B of U.P.
Z.A & L.R.Act, as is contained in
annexure no.1 to the writ petition, is
hereby quashed.

6. The Sub-Divisional Officer is
directed to decide the suit afresh in
accordance with law and also by following
the procedure as prescribed under the
provision of the Code of Civil Procedure.
The Sub-Divisional Officer shall expedite
the proceedings of the suit and conclude
the same within a period of six months
from the date of production of a certified
copy of this order."

11. This court in the case reported in
AIR 1983 Allahabad 450 Smt. Kaniz
Fatima and another Vs. Shah Naim
Ashraf has held that if no issue has been
framed on a question which arises out of
the pleading of the parties, the Court cannot
proceed to record a finding on that point.
The paragraph nos. 19 & 20 of the
judgement are relevant, which are as
under:-

"19. There is no dispute with the
proposition of law laid down in the
aforesaid decision but the true scope of
the said rule would be that where the
parties have led their entire evidence on
all the pleas raised by them, they cannot
be permitted to urge at the conclusion of
the proceedings or in appeal that they
were taken by surprise by non-framing of
an issue on that particular point on which
they
have
already
exhausted
their
evidence. In such a case it cannot be said
that the parties are prejudiced in any
manner whatsoever by non-framing of an
issue. But the said rule cannot be
construed to cover those cases as well
where the evidence was led on issues on
which the parties actually went, to trial
because it is well settled that the evidence
adduced on any particular issue by the
parties cannot be made foundation for
decision of any other and different plea on
which no issue has been framed, because
in the absence of an issue on the point
they cannot be said to have an opportunity
of adducing evidence in support of it or in
rebuttal of it. It cannot be assumed that
the parties have exhaustively led evidence
on all the pleas raised in the pleadings. A
party is supposed to lead evidence only on
the issues framed in the suit. The other
party can object and the Court can always
refuse to record evidence which does not
relate to the issues framed in the suit.
Even if evidence has been led and brought
on record, the court will not be justified to
look into that evidence for deciding a
point not covered by the issues. Thus, it
cannot be said that it the parties had led
evidence in the case it should be construed
to cover all the pleas raised in the
pleadings although no issue has been
framed on that point.

20. The object of framing the issue is
to direct that attention of the parties to
lead evidence on that specific issue frame
and if no evidence is led (one line
obliterated.
Ed.)
drawn
against
the
concerned parties for holding that it has
no evidence to support or to rebut the plea
covered by the issue in question. But in
the absence of the proper issues covering
all the pleas raised in pleadings it cannot
be said that the parties have exhausted all
3 All. Manish Shukla Vs. Board of Revenue & Ors.
1053
their evidence or all the pleas raised by
them although the same are not covered
by the issues framed. In the view of the
matter, we find that in the present case
since proper issues have not been framed,
which arise out of the pleadings of the
parties as well as in the statement of the
case recorded under Order 10 Rule 2 of
the Code, it cannot be said that the
defendants have led all their evidence
which they would have led in support of
the pleas, which are not covered by the
issued framed in the suit. The decision
recorded by court below, therefore, cannot
be sustained on the said ground urged by
learned counsel of the plaintiff. The case,
therefore, deserves to be remanded to the
trial court for decision afresh after
framing proper additional issues in the
suit and giving full opportunity to the
parties to lead their evidence which they
may like to produce in support of their
case. Learned court below will carefully
scrutinize pleadings and frame necessary
additional issues."

12. So far as the limitation question is
concerned, the law is well settled that there
is no limitation for filing suit for
declaration under Section 229 B of
U.P.Z.A. & L.R. Act. This Court in the case
reported in 2005 (99) R.D. 529, Pan
Kumari Vs. Board of Revenue, U.P. at
Allahabad & Others has held that there is
no limitation for filing suit under Section
229 B of U.P.Z.A. & L.R. Act, the
paragraph no.6 of the judgment is relevant,
which is as follows:

"6. Sri. R.C. Singh submits that the
suit under Section 229-B was barred by
limitation. In support of this contention he
relies upon Section 341 of the U.P.
Zamindari Abolition and Land Reforms
Act, which provides that the Limitation
Act would be applicable to proceedings
under the U.P. Zamindari Abolition and
Land Reforms Act and limitation in a suit
for declaration would be governed by
Article 137 of Schedule 1 of the Limitation
Act as there is no period prescribed for
such a suit under the U.P.Z.A. & L.R. Act.
Section 341 itself provides that the
provisions of certain Acts including the
Limitation
Act
shall
apply
to
the
proceedings under the U.P.Z.A. & L.R. Act
unless otherwise provided in the U.P.Z.A.
& L.R. Act. Rule 338 of the U.P.Z.A. and
L.R. Rules provides that the suits,
applications
and
other
proceedings
specified in Appendix III shall be
instituted within the time specified therein
for them respectively. Recourse to the
provisions of the Limitation Act would be
available only If there is no provision
under Rules in respect of the period of
limitation for the different classes of suits
or proceedings mentioned therein. In
Appendix III the period of limitation
provided for different classes of suits has
been given. As regards suits under Section
229-B column 4, which prescribes the
period of limitation for different classes of
suit says "none". It would therefore be
treated that there is no limitation for filing
a suit under Section 229-B. Section 9 of
the Civil Procedure Code provides that all
suits of civil nature shall be instituted in
the civil Court except those, which have
been excepted. A suit under Section 229-B
falls within the excepted category and
such suits even though they involve
declaration
are
suits
of
a
special
character. Article 137 of the Limitation
Act relied upon by Sri Singh in any case is
applicable only to applications and not to
suits and therefore has no play. When the
rule making authority has provided
different periods of limitation for different
classes of suits it would be treated that
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions prescribing period of limitation
in the Limitation Act would not be
applicable to suits under the U.P.Z.A. &
L.R. Act. Section 189 U.P.Z.A. & L.R. Act
sets out the circumstances in which the
interest of a bhumidar is extinguished.
Clauses (a), (aa) and (b) relate to cases
where the bhumidar dies leaving no heir,
or where he has let out his holding in
contravention of the provisions of the Act
or where the land is acquired. Sub-section
(c) of Section 189 provides that where a
bhumidar
has
lost-possession
the
bhumidari right would extinguish when
the right to recover possession is lost. In
Ram Naresh v. Board of Revenue 1985
Rev Dec. 444 relied upon by Sri R.C.
Singh it was held that the provisions of
Section 27 of the Limitation Act would be
attracted to suits instituted under Section
229-B. Section 27 provides that on the
determination of the period limited for
instituting a suit for possession the right to
such property shall be extinguished. The
rule is an exception to the general rule
that limitation bars the remedy but does
not extinguish the right. If, however, a
person is in possession his right can not
be extinguished unless the case is covered
by Clauses (a), (aa) and (b) of Section
189. He can therefore seek a declaration
of his right at any point of time. If a
person has been dispossessed he would
have to institute a suit under Section 129
U.P.Z.A. & L.R. Act. Appendix III
provides the period for limitation for filing
a suit under Section 209. It would follow
therefore that a suit under Section 229-B
would be
barred
by
limitation
the
bhumidar is out of possession and his
right to file a suit under Section 209 is
barred by limitation. The finding of fact
recorded on the question of possession is
that the plaintiffs have established their
continuous possession over the disputed
land. The finding is not shown to be
vitiated by any error. As the rights of the
plaintiff were never extinguished no
question of limitation arises. For the
reasons given above the writ petition lacks
merit and is dismissed."

13. So far as exercise of jurisdiction
of this Court under Article 226 of the
Constitution of India against the impugned
order of Board of Revenue is concerned,
this Court in the case reported in 1985 R.D.
71, Paras Nath Singh Vs. Deputy Director
of Consolidation and Others has held that
if as a result of quashing the impugned
order another illegal order would be
restored then Court would refuse to
interfere
with
the
impugned
order.
Paragraph No.21 of the judgment is as
follows:

"21. It is, no doubt, correct to say that
any order passed without jurisdiction is a
nullity and deserves to be quashed. But if
as a result of quashing that order another
wrong and illegal order would be restored,
this Court would refuse to interfere with
the impugned order which appears to be
quite proper equitable and just order. As
mentioned above, the power under Article
226 of the Constitution is devised to
advance justice and not to thwart it. To me
it appears to be well settled that an order
which is illegal cannot be quashed or set
aside in writ jurisdiction if quasing of it
results in bringing on record another
illegal order."

14. Considering the entire facts and
circumstances, of the case as well as ratio
of law laid down by this Court there is no
illegality or infirmity in the judgment of
Board of Revenue by which the judgment
and decree of the Trial Court and First
Appellate Court have been set aside and the
3 All. Chandrashekhar Tiwari Vs. State of U.P. & Ors.
1055
matter has been remitted back to the Trial
Court to decide the suit afresh on merit.

15. No interference is required against
the impugned judgment.

16. Writ petition is devoid of merit
and, is accordingly, dismissed.

17.

However,
Trial
Court
-
Upziladhikari, Kanpur Nagar is directed to
decide the suit under Section 144 of U.P.
Revenue Code, 2006 after framing issue
and permitting authorities to lead evidence,
in accordance with law. The suit will be
decided, expeditiously, preferably within a
period of one year from the date of
production of certified copy of this order.
----------
(2023) 3 ILRA 1055
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2023

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Special Appeal No. 70 of 2023

Chandrashekhar Tiwari ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Siddharth Khare

Counsel for the Respondents:
C.S.C., Sri Hritudhwaj Pratap Sahi, Sri G.K. Singh
(Sr. Advocate)

A. Special Law -Allahabad High Court
Rules,
1952
-Ch.
VII
Rule
5-U.P.
Intermediate Education Act, 1921-Section
16-D(4)-State
Govt.
superseded
the
Committee of Management in exercise of
power under Section 16 D(4) of the ActOpportunity of hearing was not afforded
by State Govt. while superseding the
Management-State Government under law
is
empowered
to
supersede
the
Committee of Management by an order
'for reasons to be recorded'-State Govt.
was thus enjoined with the duty to
consider the reply and give reasons for not
accepting the reply, which has not been
done-Thus, resulted in gross violation of
principles of natural justice-Hence, no
interference requires. (Para 1 to 20)

The appeal is dismissed. (E-6)

List of Cases cited:
Committee of Mgmt. Gautam Buddhha Inter
College & anr.. Vs St. of U.P & ors.

(Delivered by Hon'ble Manoj Kumar
Gupta, J. & Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. Heard Sri Siddharth Khare, counsel
for the appellant, learned Standing Counsel
for the State respondents and Sri G.K.
Singh learned Senior Counsel assisted by
Sri H.P. Sahi for respondent Nos. 5 and 6.

2. This intra-court appeal arises out of
judgment and order dated 19.12.2022
passed by learned Single Judge in Writ-C
No. 37460 of 2022 filed by respondent
Nos. 5 and 6 (hereinafter referred to as 'the
petitioners').

3. The petitioners in the Writ Petition
were the Committee of Management of
Goswami Tulsi Das Inter College, a
recognized Institution under the U.P.
Intermediate
Education
Act,
1921
(hereinafter referred to as 'the Act') and its
Manager (respondents no.5 & 6 in the
instant appeal). They had, in the writ
petition,
assailed
the
order
dated
04.11.2022 passed by the State Government
superseding the Committee of Management