# Meera Devi & Anr v. The Board of Revenue Uttar Pradesh at Lucknow & Ors

- **Citation:** (2023) 10 ILRA 1073
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-29
- **Case number:** J. Writ-B No. 2800 of 2023
- **Bench:** Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/meera-devi-anr-v-the-board-of-revenue-uttar-pradesh-at-lucknow-ors-49261
- **Pages:** 8

## Headnote

Civil Law - U.P. Land Revenue Act, 1901 -
Sections 34 & 219 - Hindu Minority and
Guardianship Act, 1956 - Section 8(2) -
Mutation Proceedings - Jurisdiction of
Revenue Courts - Validity of Sale Deed -
Principles of Natural Justice - Article 226
The petitioners, Meera Devi and another,
challenged the Board of Revenue's order dated
05.06.2023, which allowed a revision by
respondent Siddhant Gupta, setting aside a
mutation
order
dated
02.02.2022
and
remanding the matter to the Tehsildar, Khadda,
for fresh adjudication. The mutation was based
on a sale deed dated 11.06.2009 executed by
respondent Neelam Devi, including on behalf of
her then-minor son, Siddhant Gupta, without
court permission under Section 8(2) of the
Hindu Minority and Guardianship Act, 1956.

Held: (1) The writ petition was partly allowed.
(2) The Board of Revenue's findings on the
validity of the sale deed were expunged as
beyond its jurisdiction in summary mutation
proceedings, which cannot adjudicate title or
legality of registered sale deeds, per Jitendra
Singh Vs St. of Madhya Pradesh. (3) The
mutation order was ex-parte, violating principles
of natural justice due to lack of notice on case
transfer, justifying remand. (4) The writ was
maintainable
under
Article
226
due
to
jurisdictional error by the Board of Revenue, as
per Madhav Pandey Vs Board of Revenue. (5)
The remand to the Tehsildar was affirmed, but
the Tehsildar was directed to decide afresh
within four months under the U.P. Land
Revenue Act, 1901, without being influenced by
the Board's findings on the sale deed's legality.
(6) A prior civil suit challenging the sale deed,
dismissed on 15.09.2021, was not considered by
the Board, reinforcing the jurisdictional error.

Case Law Cited:

## Text

10 All. Meera Devi & Anr. Vs. The Board of Revenue Uttar Pradesh at Lucknow & Ors.
1073
----------
(2023) 10 ILRA 1073
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2023

BEFORE

THE HON'BLE SYED QAMAR HASAN RIZVI,
J.

Writ-B No. 2800 of 2023

Meera Devi & Anr. ...Petitioners
Versus
The Board of Revenue Uttar Pradesh at
Lucknow & Ors. ...Respondents

Counsel for the Petitioners:
Sri A.P. Singh

Counsel for the Respondents:
C.S.C., Sri Anoop Baranwal, Sri Nitya
Prakash Tiwari

Civil Law - U.P. Land Revenue Act, 1901 -
Sections 34 & 219 - Hindu Minority and
Guardianship Act, 1956 - Section 8(2) -
Mutation Proceedings - Jurisdiction of
Revenue Courts - Validity of Sale Deed -
Principles of Natural Justice - Article 226
The petitioners, Meera Devi and another,
challenged the Board of Revenue's order dated
05.06.2023, which allowed a revision by
respondent Siddhant Gupta, setting aside a
mutation
order
dated
02.02.2022
and
remanding the matter to the Tehsildar, Khadda,
for fresh adjudication. The mutation was based
on a sale deed dated 11.06.2009 executed by
respondent Neelam Devi, including on behalf of
her then-minor son, Siddhant Gupta, without
court permission under Section 8(2) of the
Hindu Minority and Guardianship Act, 1956.

Held: (1) The writ petition was partly allowed.
(2) The Board of Revenue's findings on the
validity of the sale deed were expunged as
beyond its jurisdiction in summary mutation
proceedings, which cannot adjudicate title or
legality of registered sale deeds, per Jitendra
Singh Vs St. of Madhya Pradesh. (3) The
mutation order was ex-parte, violating principles
of natural justice due to lack of notice on case
transfer, justifying remand. (4) The writ was
maintainable
under
Article
226
due
to
jurisdictional error by the Board of Revenue, as
per Madhav Pandey Vs Board of Revenue. (5)
The remand to the Tehsildar was affirmed, but
the Tehsildar was directed to decide afresh
within four months under the U.P. Land
Revenue Act, 1901, without being influenced by
the Board's findings on the sale deed's legality.
(6) A prior civil suit challenging the sale deed,
dismissed on 15.09.2021, was not considered by
the Board, reinforcing the jurisdictional error.

Case Law Cited:

1. Jitendra Singh Vs St. of Madhya Pradesh,
2021 0 Supreme (SC) 487;

2. Saroj Vs Sunder Singh & ors., Civil Appeal No.
10582 of 2013 (SC, 25.11.2013);

3. Smt. Kalawati Vs Board of Revenue & ors.,
2022 (4) ADJ 578;

4. Madhav Pandey & ors. Vs Board of Revenue
& ors., 2002 (2) AWC 1311;

5. Hadisul Nisha Vs Additional 5. Commissioner
(Judicial) Faizabad & ors., 2021 (6) ADJ 176;

6. Amrintansh Pandey Vs St. of U.P. & others,
(2023) 0 Supreme (All) 1107;

(Delivered by Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. Heard Sri Amit Pratap Singh,
learned Counsel for the petitioners, Sri.
Jitendra Narain Rai, learned Additional
Chief Standing Counsel for the State
respondents and Sri Nitya Prakash, learned
Counsel appearing for the respondents no.2
& 3.

2. By means of the instant writ
petition field under Article 226 of the
Constitution of India, the petitioners have
prayed for a writ in the nature of certiorari
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
quashing the judgment and order dated
05.06.2023 passed by the learned Board of
Revenue, U.P. at Lucknow (respondent
no.1) whereby the Revision bearing Case
No. 775 of 2022 (Siddhant Gupta versus
Smt. Meera Devi) under Section 219 of
U.P. Land Revenue Act, 1901, filed by the
respondent no.2 namely Siddhant Gupta
has been allowed.

3. The Board of Revenue vide the
impugned order dated 05.06.2023 allowed
the aforesaid revision by setting aside the
mutation order dated 02.02.2022 passed by
the Tehsildar, Khadda, Kushinagar and
remanded the matter to the Tehsildar
concerned with a direction to decide the
case afresh after affording opportunity of
hearing to the parties concerned 'in the
light of the findings recorded' by it in the
impugned order dated 05.06.2023.

4. The factual matrix of the case in
brief is that the petitioners purchased the
disputed land under a registered sale-deed
dated 11.06.2009. The said sale deed was
jointly executed by Anuj Gupta son of late
Srinath Gupta and Smt. Neelam Devi
widow of late Srinath Gupta (respondent
no.3) in her personal capacity as well as the
mother and natural guardian of her minor
son namely Siddhant (respondent no.2).
After, purchase of the land in question
through the aforesaid registered sale
deed,
the
petitioners
moved
an
application under Section 34 of the U.P.
Revenue Act, 1901 before the Naib
Tehsildar for mutation in respect of the
said land.

5. The Naib-Tehsildar, Padrauna,
District Kushinagar vide order dated
16.12.2009
allowed
the
aforesaid
mutation
application
and
issued
direction to the concerned officials to
mutate the name of the petitioners in the
revenue records over the land in question.

6. Against the aforesaid order dated
16.12.2009 passed by the Naib-Tehsildar,
the respondent no.3 namely Smt. Neelam
Gupta, moved a restoration application on
17.12.2009 which was allowed on the same
day
and
the
mutation
order
dated
16.12.2009 was recalled.

7. From the perusal of the record as is
available before this Court, it is evident that
the petitioner no.1 namely Meera Devi
preferred an appeal before the Sub
Divisional
Officer,
Padrauna,
District
Kushinagar,
assailing
the
aforesaid
restoration order dated 17.12.2009 passed
by the Naib-Tehsildar. On the other hand,
one Shashank son of Srinath also preferred
an appeal before the Sub Divisional Officer
challenging the mutation order dated
16.12.2009 passed by the Naib Tehsildar
concerned.

8. The Sub-Divisional Officer,
Padrauna heard both the aforesaid appeals
together on 08.08.2012 and finally decided
both the aforesaid appeals by a common
judgment and order dated 08.08.2012.

9. By means of the aforesaid
judgment and order dated 08.08.2012, the
Sub Divisional Officer declined to entertain
the appeal filed by the petitioner no.1
namely Meera Devi on the ground that the
order dated 17.12.2009 challenged in the
said appeal is an interlocutory order by
means of which the restoration application
has been allowed and as such, no appeal is
maintainable against the same. Further, the
Sub Divisional Officer vide the same order
dated 08.08.2012 decided not to entertain
the appeal filed by above-mentioned
Shashank
against
the
order
dated
10 All. Meera Devi & Anr. Vs. The Board of Revenue Uttar Pradesh at Lucknow & Ors.
1075
16.12.2009 on the ground that the same had
already been recalled by means of the
restoration order dated 17.12.2009, as such,
no appeal is entertainable against a nonexistent order.

10. The Appellate Court, however,
vide the aforesaid judgment and order
dated 08.08.2012 partly allowed the appeal
filed by Shashank son of Srinath by
remitting the matter to the lower court with
a direction to decide the same on merits
after affording opportunity of hearing to the
parties, within a period of two months. The
respondent no.3 filed a Revision bearing
No. 42/K/2012 against the order dated
08.08.2012; before the Commissioner,
Gorakhpur Division, Gorakhpur, which
was dismissed on 24.05.2019.

11. After the matter was remitted to
the lower court, the learned court of
Tehsildar concerned vide order dated
02.02.2022 rejected the claim of the private
respondents and issued direction to mutate
of the name of the petitioners in the
revenue record on the basis of the sale deed
dated 11.06.2009.

12. The aforesaid judgment and order
dated 02.02.2022 was challenged by means
of a Revision under Section 219 of U.P.
Land Revenue Act, 1901 by the respondent
no.2 namely Sidhhant Gupta, who was
minor at the time of the execution of the
aforesaid sale seed dated 11.06.2009,
raising several grounds challenging the
authority of her mother to execute the
aforesaid sale deed on his behalf without
following the due process of law and also
on the ground that the order of mutation
being
ex-parte
against
him,
is
not
sustainable in the eyes of law, having being
passed in violation of principles of natural
justice.

13. The Revisional Court-respondent
no.1 vide the impugned judgment and order
dated 05.06.2023 allowed the aforesaid
revision with the finding that there is
nothing on record to show that the
permission as required under Section 8(2)
of the Hindu Minority and Guardianship
Act, 1956, has ever been obtained prior to
the execution of the sale deed in respect of
the share of the minor and as such, in the
absence of the aforesaid permission, the
mutation proceeding based on the said sale
deed, is illegal and erroneous. Further, no
notice was issued to the parties on the
transfer of the case from the court of NaibTehsildar, Padrauna to the court of NaibTehsildar Khadda and the order was passed
in an ex-parte manner, which is illegal.

14. With the aforesaid finding, the
learned Board of Revenue (respondent
no.1) remanded the matter to the court of
Tehsildar, Khadda, with the direction to
decide the same in the light of the findings
recorded by it, within a period of four
months after affording opportunity of
hearing to the parties concerned.

15. Being aggrieved by the aforesaid
order dated 05.06.2023 passed by the
Board of Revenue, the instant writ
petition has been filed before this Court
mainly on the ground that the Board of
Revenue while passing the impugned
order has exceeded its jurisdiction by
entering into the domain of adjudication
of the validity of the sale deed dated
11.06.2009 and recorded its categorical
findings on the same, in the mutation case
which
is
admittedly
a
summary
proceeding, and thereafter remanded the
matter to the court of Tehsildar with the
direction to pass orders in the light of the
findings recorded by it in the impugned
order.
1076 INDIAN LAW REPORTS ALLAHABAD SERIES

16. The contention of the learned
counsel for the petitioner is that the
impugned order is bad in law not only on
the ground that the Revenue Courts do not
have the jurisdiction to decide the legality
of a registered sale-deed and further that
the aforesaid findings itself are perverse so
much so, that the judgment passed by the
Apex Court in the case Saroj versus Sunder
Singh & Ors., Civil Appeal No. 10582 of
2013 which has been relied upon by the
Board of Revenue is not at all applicable in
the present case, but the Board of Revenue
without taking into consideration the
factual matrix of the present case, has took
the shelter of said judgment, which has
been passed on a different premise and is
not at all applicable in the present case.

17. Per contra, Sri Nitya Prakash,
learned
appearing
Counsel
for
the
respondent nos. 2 & 3 raised preliminary
objection regarding the maintainability of
the writ petition on the ground that the
order impugned in the instant writ petition
has
been
passed
in
the
mutation
proceedings, which is summary in nature
hence, the present writ petition under
Article 226 of the Constitution of India is
not entertainable. He has placed reliance on
judgments passed by this Court in the case
of Smt. Kalawati versus Board of
Revenue and others, reported in 2022 (4)
ADJ 578, wherein it has been held that in
the
mutation
proceedings
which
are
summary in nature, writ petition under
Article 226 of the Constitution of India is
not
entertainable
except
under
few
circumstances as indicated in Paragraph 40
of the said judgement.

18. Sri. Jitendra Narain Rai learned
Additional
Chief
Standing
Counsel
supported the objection as raised by the
leaned counsel for the respondent no.2 & 3
with regard to the non-maintainability of
the present writ petition. In support of his
submissions, he placed the judgment
passed by this Court in the case of
Amrintansh Pandey Vs. State of UP &
others; reported in (2023) 0 Supreme (All)
1107. In addition to it, he submitted that the
order passed by the Board of Revenue,
Lucknow is only a remand order wherein
the parties have been given full opportunity
to place their contentions before the trial
court and as such no prejudice has been
caused
to
the
petitioners
from
the
impugned order.

19. Sri Amit Pratap Singh, learned
Counsel for the petitioners refuting the
preliminary objection as raised by the
learned Counsel for the respondents,
contended that the present writ petition is
perfectly entertainable. He submits that by
means of the impugned order, the Board of
Revenue has virtually decided the validity
of the sale deed dated 11.06.2009 affecting
the rights and title of the parties and thus,
exceeded its jurisdiction by entering the
domain of adjudication of the validity of
the said sale deed. In support of his
contention, he relied upon the judgment
passed by this court in the case of Madhav
Pandey and others versus Board of
Revenue and others, reported in 2002(2)
AWC 1311 wherein it has been held that
the writ petition is entertainable when there
is lack of jurisdiction. The contention of the
learned counsel for the petitioner is that in
the instant case the Board of Revenue has
recorded its adverse findings against the
execution of the sale deed, virtually holding
it to be illegal and thereby committed a
glaring jurisdictional error.

20. The learned counsel for the
petitioners further submits that a suit for
cancellation of the sale deed in question
10 All. Meera Devi & Anr. Vs. The Board of Revenue Uttar Pradesh at Lucknow & Ors.
1077
was also filed by the private respondents
and their family members against the
petitioners, before the court of Civil Judge
Padrauna District-Kushinagar which was
dismissed on 15-09-2021. The copy of the
order dated 15.09.2021 has been annexed
as annexure no.5 to the writ petition. This
material fact has not been considered by the
Revenue Board and recorded a perverse
finding while setting aside the mutation
order dated 02-02-2022 passed by the
Tehsildar, Khadda, Kushinagar.

21. The preliminary issue before this
Court is with regard to the entertainability
of the present petition in exercise of its writ
jurisdiction under Article 226 of the
Constitution of India, being arising out of
the orders passed in summary proceedings
under Section 34 of the Land Revenue Act,
1901.

22. Normally, the High Court in
exercise of its plenary power does not
entertain writ petition under Article 226 of
the Constitution of India, against the orders
passed by the Revenue Courts in mutation
proceedings. It would not be out of place to
mention here that the power to issue
prerogative writs under Article 226 is
plenary in nature. It does not, in terms,
impose any limitation or restraint on the
exercise of the power to issue writs. It is
the discretion of the Writ Court whether to
entertain writ petition or not depending
upon the facts and circumstances of each
case. It is a self-imposed restriction on the
exercise of the power under Article 226 of
the Constitution that has evolved through
judicial precedents.

23. It is well settled that the orders for
mutation are passed on the basis of the
possession of the parties and since no
substantive rights of the parties are decided
in mutation proceedings, ordinarily the
Writ Courts decline to entertain the writ
petition as not entertainable in respect of
orders passed in mutation proceedings,
unless found to be without jurisdiction or
contrary to the title already decided by the
competent court or the order suffers from
some patent jurisdictional error i.e. in cases
where there is a lack of jurisdiction, excess
of jurisdiction or abuse of jurisdiction; or
there has been a violation of principles of
natural justice or if the rights and title of
the parties have already been decided by
the competent court, and that has been
varied by the mutation courts; or if the
mutation has been directed not on the basis
of possession or simply on the basis of
some title deed, but after entering into a
debate of entitlement to succeed the
property, touching into the merits of the
rival claims.

24.

The
question
regarding
entertainability of the writ petition against
the orders passed in mutation proceedings
came up for consideration before this Court
in several cases viz. Smt. Kalawati vs.
The Board of Revenue (Supra), Madhav
Pandey versus Board of Revenue (Supra)
and
Hadisul
Nisha
vs.
Additional
Commissioner (Judicial) Faizabad and
others reported in 2021 (6) ADJ 176 and
after taking into consideration the scope of
the Writ jurisdiction under Article 226 of
the Constitution of India, this Court carved
out certain exceptions under which this
Court may entertain a Writ petition
exercising of its power under Article 226 of
the Constitution even against the orders
passed in summary proceedings despite the
said order having been affirmed/set aside
by the appellate or revisional court.

25. It is a settled legal proposition that
Revenue courts cannot adjudicate the
legality and validity of a registered Sale-
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
Deed in summary proceedings. In the case
of Jitendra Singh versus State of
Madhya Pradesh; reported in 2021 0
Supreme (Sc) 487; Hon'ble the Supreme
Court of India has been pleased to hold as
under:

"Be that as it may, as per the
settled proposition of law, mutation entry
does not confer any right, title or interest in
favour of the person and the mutation entry
in the revenue record is only for the fiscal
purpose. As per the settled proposition of
law, if there is any dispute with respect to
the title and more particularly when the
mutation entry is sought to be made on the
basis of the will, the party who is claiming
title/right on the basis of the will has to
approach the appropriate civil court/court
and get his rights crystalised and only
thereafter on the basis of the decision
before the civil court necessary mutation
entry can be made."

26. In the instant case, Board of
Revenue while deciding the Revision
recorded the following finding. For ready
reference paragraph (5) and (7) of the
impugned order is quoted below:

"5. तहसीलदार खड्डा द्वारा उपरोक्त वििेचना के
आधार पर वदनाांक 02.02.2022 को विक्रय पत्र वदनाांक
11.06.2009 के आधार पर विक्रेता अनुज गुप्ता पुत्र श्रीनाथ गुप्ता
ि नीलम पत्नी श्रीनाथ गुप्ता खुद ि िली माता एिां सांरक्षक वसांद्ाांत
नाबावलग पुत्र स्ि० श्रीनाथ गुप्ता का नाम वनरस्त करके क्रेतागण
श्रीमती मीरा पत्नी कृपाशांकर ि श्रीमती पूनम पत्नी विजय कुमार गुप्ता
के नाम दजज करने का आदेश पाररत वकया गया। इस सम्बन्ध में सांगत
अवधवनयम उपलब्ध विवध व्यिस्था का अिलोकन वकया गया। वहन्दू
अल्पसांख्यक एिां सांरक्षकता अवधवनयम 1956 की धारा 8(2) में
स्पष्ट प्रािधान है वक वबना न्यायालय की पूिज अनुमवत के नाबावलग
की सम्पवि को बांधक, विक्रय, दान, विवनमय आवद सांरक्षक द्वारा
नहीं वकया जायेगा। वसविल अपील सांख्या 10582/2013, सूरज
बनाम सुन्दर वसांह एिां अन्य में मा० उच्चतम न्यायालय द्वारा वदनाांक
25.11.2013 को पाररत आदेश में स्पष्ट वकया गया है वक
नाबावलग की सम्पवि को विक्रय वगफ्ट विवनमय आवद करने से पूिज
न्यायालय की अनुमवत आिश्यक है।

7. प्रश्नगत िाद में वसद्ाांत गुप्ता पुत्र श्रीनाथ को
विक्रय वनष्पादन के समय नाबावलग होना वसद् है और वसद्ाांत गुप्ता
नाबावलग की माता द्वारा वसद्ाांत के वहस्से के भूवम का बैनामा
वनष्पावदत वकया गया है। बैनामा वनष्पादन के पूिज सक्षम स्तर से
अनुमवत प्रावप्त की गयी है, ऐसा कोई प्रमाण पत्रािली पर उपलब्ध
नहीं है। वकन्तु तहसीलदार द्वारा अपने आदेश से नाबावलग की भूवम
का नामाांतरण स्िीकार वकया है जो अविवधक ि त्रुवटपूणज आदेश है।
इसके अवतररक्त प्रश्नगत िाद नायब तहसीलदार पडरौना न्यायालय से
स्थानाांतररत होकर नायब तहसीलदार खड्डा न्यायालय में जाने के
पश्चात पक्षों को सूचना नहीं दी गयी। इसके अवतररक्त जब नायब
तहसीलदार खड्डा के न्यायालय में पत्रािली प्रेवित की गयी थी, तो
तहसीलदार खड्डा द्वारा वदनाांक 02.02.2022 को वकस आधार
पर आदेश पाररत वकया गया। इसका उल्लेख भी आदेश वदनाांक
02.02.2022 में नहीं वकया गया है।"

27. From the perusal of the aforesaid
finding as recorded by the Board of
Revenue to the effect that it disputes the
validity of the said sale deed dated
11.06.2009
in
the
absence
of
the
permission as required under Section 8(2)
of Hindu Minority and Guardianship Act,
1956 tantamount to travelling beyond the
scope of its jurisdiction. Such a finding
recorded by the Board of Revenue in the
impugned order is unwarranted and dehors
of jurisdiction whereby the Board of
Revenue by casting cloud over the process
of execution of the sale deed dated
11.06.2009 has virtually decided the
legality/validity of the same directly
affecting the right / title of the parties and
thus, exceeded its jurisdiction by entering
the domain of adjudication of the legality
of the said sale deed.

28. The fact that the respondent no.2 /
Revisionist namely Sidhhant Gupta, was a
minor at the time of the execution of the
aforesaid sale seed dated 11.06.2009 when
her mother executed the above-mentioned
10 All. Meera Devi & Anr. Vs. The Board of Revenue Uttar Pradesh at Lucknow & Ors.
1079
sale deed in respect of his share and since
the proceeding for mutation was based on
the said Sale Deed that makes the order of
mutation nonest against him. Further, the
Board
of
Revenue
has
recorded
a
categorical finding that no notice was
issued to the parties on the transfer of the
case from the court of Naib-Tehsildar,
Padrauna to the Court of Naib-Tehsildar,
Khadda and the order was passed ex-parte
which amounts to violation of principle of
natural justice.

29. The aforesaid facts of the instant
case explicitly attracts the exceptions as
carved out by this Court under which this
Court in exercise of its power under Article
226 of the Constitution may entertain a writ
petition against the order passed in
mutation proceedings. Accordingly the
objections raised by the learned counsels
for
the
respondents
challenging
the
maintainability of the present writ petition,
are over ruled.

30. The second issue which requires
consideration of this court is with regards
to paragraph (8) of the impugned order
passed by the Board of Revenue whereby
the Board of Revenue has remanded the
matter to the trial Court to hear it afresh
after affording opportunity of hearing to all
the parties with a direction to decide the
same 'in the light of the finding recorded
above'. Needless to say that if the higher
court remands the matter with certain
findings, either on facts or law, then such
findings would be binding upon the lower
court to which matter has been remanded.

31. Since, the finding as recorded by
the Board of Revenue to the effect that the
said sale deed dated 11.06.2009 is invalid
for want of permission as required under
Section 8(2) of Hindu Minority and
Guardianship Act, 1956 amounts to the
adjudication regarding the validity of the
said sale deed which is admittedly beyond
the jurisdiction of the Revenue Court in the
summary
proceedings
and
thereafter,
remanding the matter to the trial court with
a direction to decide the same afresh 'in the
light of the finding recorded above' restricts
the scope of fresh adjudication by the trial
court so much so that even while deciding
the matter afresh, the trial court is bound by
the findings recorded by the Board of
Revenue in the impugned order. As such,
the finding recorded by the Board of
Revenue in paragraph (7) of the impugned
order to the effect that the sale deed is
invalid deserves to be expunged.

32. Now, in so far as the question of
requirement of remanding the matter to the
trial court is concerned, it is a settled legal
position that an order of remand should not
be passed in a routine manner as it prolongs
and delays the litigation, which runs
contrary to serving the cause of justice.
However, there could, of course, be several
eventualities which may justify an order of
remand or where remand would be rather
necessary depending on the facts and the
given set of circumstances of a case. The
Hon'ble Supreme Court in the case of
Shivkumar
and
others
versus
Sharanabasappa and others reported in
(2021) 11 SCC 227, has categorically held
as follows,

"26.2. ...the appellate court has
the inherent power of remanding a case
where it was considered necessary to do so
in the interest of justice."

33. In the instant case, where the
revision was filed before the Board of
Revenue, by the above mentioned Siddhant
Gupta-respondent no. 2, who was minor at
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
the time of execution of the sale deed by
his mother, in respect of his share,
admittedly deserves opportunity to raise his
claim before the competent court having
jurisdiction. From the perusal of the
document annexed with this writ petition, it
is evident that the aforesaid Siddhant
Gupta-respondent no. 2 did not get due
opportunity to present his case before the
court of Tehsildar who passed the order for
mutation and further, the Board of Revenue
on finding that no notice was issued to the
parties on the transfer of the case from the
court of Naib-Tehsildar, Padrauna to the
Court of Naib-Tehsildar, Khadda, renders
the mutation order ex-parte which amounts
to violation of the principle of audi alteram
partem. As such, the order passed by the
Board of Revenue remanding the matter to
the court of Tehsildar, Khadda to pass
order
on
merits
after
affording
opportunity of hearing is reasonable and
justified.

34. In view of all that is stated
hereinabove, the finding as recorded by
the Board of Revenue in the impugned
order to the extent of adverting to the
legality of sale deed dated 11.06.2009
and directing the Tehsildar to decide the
matter in the light of the said findings; is
wholly unwarranted being dehors of
jurisdiction. I have no doubt that the
Board of Revenue ought not to have
made such a finding. By recording such a
finding, the Board of Revenue in a
summary
proceeding
has
virtually
assumed the powers and functions of Civil
Court. This Court, therefore, expunges the
findings in respect of the legality of the
Sale Deed 11.06.2023 as mentioned in
paragraphs (5), (7) and (8) of the impugned
order dated 05.06.2023 passed by the
Board of Revenue.

35. The order passed by the Board of
Revenue setting aside the aforesaid order
dated 02.02.2022 passed by the Tehsildar,
Khadda, Kushinagar, needs no interference.
So far as the said order of Board of
Revenue remanding the matter to the Court
of Tehsildar, Khadda, Kushinagar is
concerned, the same is affirmed only to the
extent
that
the
Tehsildar,
Khadda,
Kushinagar shall decide the matter afresh
strictly in accordance with the provisions of
the U.P. Land Revenue Act, 1901, after
affording due opportunity of hearing to
concerned parties, within a period of four
months.

36. It is made clear that the Tehsildar,
Khadda, Kushinagar shall decide the matter
afresh, without being influenced by the
findings recorded by the Board of Revenue
regarding the legality of the said sale deed
dated 11.06.2009.

37. With the aforesaid observation,
the instant writ petition is partly allowed.

38. No order as to cost.

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(2023) 10 ILRA 1080
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-B No. 8084 of 1984

Smt. Godawari Devi ...Petitioner
Versus
The Deputy Director of Consolidation,
Deoria & Ors. ...Respondents

Counsel
for
the
Petitioner: