# Ved Prakash & Ors v. State of U.P. & Ors. 1398 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 9 ILRA 1397
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-26
- **Case number:** Writ -C No. 17513 of 2024
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ved-prakash-ors-v-state-of-u-p-ors-1398-indian-law-reports-allahabad-series-52502
- **Pages:** 8

## Headnote

Civil Law - The Constitution of India,
1950-Article 226 - The Uttar Pradesh
Revenue Code, 2006 - Section 207 - Uttar
Pradesh Revenue Code Rules, 2006-Rule
183- The duty of the appellate court is to
review the findings of the trial court and decide
whether to reverse or affirm them. The
appellate court has the power to rehear the
case on both the question of law and fact. It is
essential for the appellate court to address all
the issues and contentions raised by the parties
in the appeal- The order to be passed in appeal
must reflect a conscious application of mind and
record findings supported by reasons on all
issues arising from the contentions put forth and
pressed by the parties- The appeal under
Section 207 of the Revenue Code, being a
regular first appeal, it would be the duty of the
first appellate court to write a self-contained
judgment after applying its mind to the facts of
the case, recording findings and arriving at a
conclusion based on reasons. (Para 17-19)

Petition allowed. (E-15)

## Text

9 All. Ved Prakash & Ors. Vs. State of U.P. & Ors.
1397
-------*****-----*****----
******-----*****-----
WAY
FORWARD
TO
CORRECTIVE MEASURES
33. This is the opportune
time to remind the Advocates about
the
Standard
of
Professional
misconduct
and
Etiquettes
as
contained in Chapter II Part VI of
the Bar Council of India Rules. As
stated in the Preamble thereof, an
Advocate
shall,
at
all
times,
comport himself in a manner
befitting his status as an officer of
the Court, a privileged member of
the community, and a gentleman,
bearing in mind that what may be
lawful and moral for a person who
is not a member of the Bar, or for a
member of the Bar in his nonprofessional capacity, may still be
improper for an advocate. Though
an
Advocate
is
expected
to
fearlessly uphold the interests of his
client, his conduct must conform to
the Rules of Conduct and Etiquettes
laid down in the said Chapter, both
in letter and in spirit.
34. The role and the duty of
the
Advocates
particularly
Advocates-on-
Record
are
contained
in
Order
IV
of
the Supreme Court Rules, 2013.
The relevant part of Rule 7 Order
IV of the said Rules reads as under:
"7. (a). ..........
(b)
(i)
Where
the
vakalatnama is executed in the
presence
of
the
Advocate-onRecord, he shall certify that it was
executed in his presence.
(ii) Where the Advocate-onRecord
merely
accepts
the
vakalatnama which is already duly
executed in the presence of a
Notary or an advocate, he shall
make an endorsement thereon that
he has satisfied himself about the
due execution of the vakalatnama."

36. For all the aforesaid reasons,
this Court comes to a definite conclusion
that
the
petition
suffers
now
gross
concealment of material facts. The petition
is vague, no personal cause of action of the
petitioners has been made out coupled with
the fact that the petition suffers from
concealment of material fact and is an
attempt to waste the precious time of the
court by resorting to filing a frivolous
petition and if the State Counsel and the
Gaon Sabha would not have brought the
facts to the notice of the Court, the
petitioners would have had a leverage by
getting away with concealment and non
disclosure of material facts.

37. In light of the detailed
discussions, this Court finds that it is a fit
case for dismissing the petition but it also is
a case where exemplary cost must be
imposed. Accordingly, the petition is
dismissed with the cost of Rs.50,000/- to be
deposited with the District Legal Aid
Services Authority, Lucknow within a
period of eight weeks from today.
----------
(2024) 9 ILRA 1397
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2024

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ -C No. 17513 of 2024

Ved Prakash & Ors. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
1398 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Akhilesh Tripathi, Anant Agarwal

Counsel for the Respondents:
C.S.C., Kailash Nath Singh, Sandeep Kumar
Pathak

Civil Law - The Constitution of India,
1950-Article 226 - The Uttar Pradesh
Revenue Code, 2006 - Section 207 - Uttar
Pradesh Revenue Code Rules, 2006-Rule
183- The duty of the appellate court is to
review the findings of the trial court and decide
whether to reverse or affirm them. The
appellate court has the power to rehear the
case on both the question of law and fact. It is
essential for the appellate court to address all
the issues and contentions raised by the parties
in the appeal- The order to be passed in appeal
must reflect a conscious application of mind and
record findings supported by reasons on all
issues arising from the contentions put forth and
pressed by the parties- The appeal under
Section 207 of the Revenue Code, being a
regular first appeal, it would be the duty of the
first appellate court to write a self-contained
judgment after applying its mind to the facts of
the case, recording findings and arriving at a
conclusion based on reasons. (Para 17-19)

Petition allowed. (E-15)

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Akhilesh Tripathi, learned
counsel for the petitioners, Sri Abhishek
Shukla, learned Additional Chief Standing
Counsel appearing for the State-respondents
and Sri Kailash Nath Singh, learned counsel
for the respondent no.4.

2. The present petition has been filed
seeking to assail the order dated 30.01.2024
passed by respondent no.2, Additional
Commissioner (Administration), Varanasi
Division, Varanasi in Case No.2418 of 2023
(Computerized
Case
No.C202314000002481, Jay Prakash Vs. Om
Prakash), under Section 207 of the UP
Revenue Code, 20061, and also the earlier
order dated 14.11.2023 passed by respondent
no.3, Sub-Divisional Officer, Tehsil Pindra,
District Varanasi, in Case No.14091 of 2021
(Computerized Case No.T202114700214091,
Om Prakash Vs. Ved Prakash), under Section
116 of the Revenue Code.

3. Briefly stated facts of the case are
as follows.

4. The petitioners claim to be cosharers of the respondent no.4 in land bearing
arazi nos.466, 472, 475 and 459 situate at the
village in question. A suit bearing Case
No.861 of 2022 (Om Prakash Singh Vs. Ved
Prakash and others), under Section 116 of the
Code, was instituted, and on 16.02.2023, an
order was passed for making a preliminary
decree. The aforesaid order is stated to have
been passed ex parte against the petitioners
herein.

5. An application seeking recall of
the aforesaid order, filed by the petitioners
was dismissed by an order dated 14.11.2023,
and in terms of the said order, the kurra report
submitted by the Lekhpal, was confirmed and
a direction was issued for making final
decree.

6. Aggrieved by the aforesaid
order, the petitioners preferred an appeal,
registered as Case No.2418 of 2023, which
has been dismissed by the respondent no.2
by an order dated 30.01.2024.

7. It is the aforesaid order dated
30.01.2024 passed by respondent no.2,
against which the present writ petition has
been preferred.

8. Contention of the counsel for
the petitioners is that the order dated
9 All. Ved Prakash & Ors. Vs. State of U.P. & Ors.
1399
16.02.2023, passed in proceedings under
Section 116, of which recall had been
sought, was ex parte, and that, accordingly,
the said order, in terms of which the kurra
report had been accepted, was legally
unsustainable.

9. It has been submitted that
despite the aforesaid grounds having been
taken before the respondent no.2, an order
has been passed without adverting to the
grounds raised in the memo of appeal.

10. Section 116 of the Revenue
Code relates to suits for division of
holdings, and as per the provisions
contained therein, a bhumidhar may sue for
the division of the holding of which he is a
co-sharer.

11. Section 117 of the Revenue
Code refers to the duty of the court in suits
for division of holding, and it provides that
the Court of Assistant Collector shall
follow
such
procedure
as
may
be
prescribed.

12. For ease of reference, the
aforementioned
statutory
provisions
contained in Sections 116 and 117 of the
Revenue Code, are being extracted below:

"116. Suit for division of
holding.-(1) A bhumidhar may
sue 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 division is not possible, the
trees,
wells
and
other
improvements
aforesaid
and
valuation thereof shall be divided
and
adjusted
in
the
manner
prescribed.
(3)
One
suit
may
be
instituted for the division of more
holdings than one where all the
parties to the suit other than the
Gram
Panchayat
are,
jointly
interested in each of the holdings.
(4) to every suit under this
section,
the
Gram
Panchayat
concerned shall be made a party.
117. Duty of Court in
suits for division of holding.-(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.
(2) 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."

13. The rules related to Sections
116 and 117, as aforesaid, have been
provided under Rules 107, 108 and 109 of
the UP Revenue Code Rules, 20162, and in
terms thereof the case is to be registered as
a suit to be decided according to the
provisions of the Code of Civil Procedure,
1908. The court has been enjoined to
determine shares of the parties, make
valuation of the holdings and to pass a
preliminary decree. The kurra report, is to
be prepared by the Lekhpal upon which
objections are to be invited, and thereafter
an appropriate order is to be passed by the
Sub-Divisional
Officer
after
affording
opportunity of hearing to the parties, and
considering the objections filed against the
1400 INDIAN LAW REPORTS ALLAHABAD SERIES
report submitted by the Lekhpal. Upon the
confirmation of the report and the kurra,
the final decree is to follow.

14. The relevant rules under the
Revenue Code Rules, are being reproduced
below:-

"107. Suit for division of
holding
(Section
116).-Every
plaint in a suit for division of a
holding (including trees, wells and
other improvements) shall contain
the following particulars:-
(1) Name, parentage and
address of the plaintiff.
(2) Name parentage and
address of other co-sharers of the
holding.
(3) Share claimed by the
plaintiff.
(4) Share of other co-tenure
holders.
(5) Detailed particulars of
the holding including plot numbers,
area and land revenue.
(6) Whether the plaintiff is
a recorded or unrecorded tenure
holder.
Note: The plaint shall be
accompanied by a certified copy of
the Khatauni and other documents
relied upon by the plaintiff.
108. Suit for division for
several holdings (Section 116).-
Where the suit relates to the
division of more than one holding,
the particulars specified in rule 107
shall be mentioned in the plaint in
respect of all such holdings.
109.
Preliminary
and
Final decrees (Section 117).-(1)
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.
(2)
Before
making
a
division the court shall-
(a) determine separately the
share of the plaintiff and each of
the other co-tenure holders ;
(b) record which, if any, of
the co-tenure holders wish to
remain joint ; and
(c) make valuation of the
holding (or holdings) in accordance
with the circle rate fixed by the
Collector applicable to each plot in
the holding.
(3) If the suit is decreed,
the Court shall pass a preliminary
decree declaring the share of the
plaintiff.
(4) After the preparation of
preliminary
decree
the
Sub
Divisional Officer shall get the
Kurra
prepared
through
the
Lekhpal.
(5)
The
Lekhpal
shall
submit the Kurra report within a
period of one month from the date
of receiving the order in this regard
and at the time of preparation of
Kurra
he
shall
observe
the
following principles-

(a) the plot or plots shall be
allotted
to
each
party
in
proportionate to his share in the
holding;
(b) the portion allotted to
each party shall be as compact as
possible;
(c) as far as possible no
party shall be given all the inferior
or all the superior classes of land;
9 All. Ved Prakash & Ors. Vs. State of U.P. & Ors.
1401
(d) as far as possible
existing fields shall not be split up;
(e) Plots which are in the
separate possession of a tenure
holder shall, as far as possible, be
allotted to such tenure holder if
they are not in access of his share;
(f) If the plot or any part
thereof is of commercial value or is
adjacent to road, abadi or any other
land of commercial value, the same
shall be allotted to each tenure
holder proportionately and in the
case of second condition the same
shall be allotted proportionately
adjacent to road, abadi or other
land of commercial value; and
(g) If the co-tenure holders
are in separate possession on the
basis of mutual consent or family
settlement, the Kurra shall, as far as
possible, be fixed accordingly.
(6)
When
the
report
regarding Kurra is submitted by the
Lekhpal, the objection shall be
invited thereon and thereafter the
appropriate order shall be passed
by the Sub Divisional Officer after
affording opportunity of hearing to
the parties and considering the
objection, if any, filed against the
report submitted by the Lekhpal.
(7) If the report and Kurra
is confirmed by the Sub Divisional
Officer, the final decree shall
follow it.
(8) At the stage of the final
decree, the Court shall-

(a) Separate the share of
the plaintiff from that of the
defendant by metes and bounds.
(b) Place on record a map
showing in different colours the
properties given to plaintiff as
distinct from those given to the
defendant.
(c) Apportion the land
revenue payable by the parties.
(d) Direct the record of
rights and map to be corrected
accordingly.
(9) If, for adjusting the
equities
between
the
parties,
payment
of
compensation
regarding trees, wells or other
improvements becomes necessary,
the revenue Court concerned may
also pass necessary orders at the
stage of final decree.
(10) The Sub-Divisional
Officer shall make an endeavour to
decide the suit within the period of
six months and if the suit is not
decided within such period, the
reason shall be recorded."

15. Any party aggrieved by a final
order or decree passed in a suit for division
of holdings under Section 116, is entitled to
the remedy of a first appeal under Section
207 of the Revenue Code. The appeal is to
be
preferred
before
the
Court
of
Commissioner, as per the provisions
contained under Section 207 read with the
Third Schedule. The power of appellate
court has been stated under Rule 183 of the
Revenue Code Rules, whereunder it is
provided that the appellate court may either
admit the appeal, or after giving the
appellant an opportunity of being heard,
summarily reject it. Upon the appeal being
admitted, a date is to be fixed for hearing of
the case and a notice is to be served on the
respondent or the opposite party.

16. The provisions relating to a
first appeal, under Section 207 of the
Revenue Code, and the corresponding Rule
183 of the Revenue Code Rules, which
1402 INDIAN LAW REPORTS ALLAHABAD SERIES
describes the power of the appellate court,
are being extracted below:-

"207. First appeal.-(1)
Any party aggrieved 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 in
Column 3 thereof.
(2) A first appeal shall also
lie against an order of nature
specified-
(a) in Section 47 of the
Code of Civil Procedure, 1908; or
(b) in Section 104 of the
said Code; or
(c) in Order XLIII, Rule 1
of the First Schedule to the said
Code.
(3) The period of limitation
for filing a first appeal under this
section shall be thirty days from the
date of the order or decree appealed
against.
183. Power of appellate
and revisional Court (Sections
207, 208 and 210).-(1) The
appellate or revisional Court may
either admit the appeal or revision,
as the case may be, or after giving
the appellant or the revisionist an
opportunity
of
being
heard,
summarily reject it.
(2) If the appeal or revision
is admitted a date shall be fixed for
hearing of the case and notice shall
be served on the respondent or the
opposite party.
(3) The appellate or the
revisional court may, with the
consent of the parties, finally
dispose of the appeal or revision at
the stage of admission.
(4) The appellate or the
revisional court shall, endeavor to
finally
decide
the
appeal
or
revision, as the case may be, within
a period of six months from the
date of filing the appeal or revision
and if the appeal or revision is not
decided within the aforesaid period,
the reason for the same shall be
recorded."

17. The duty of the appellate court,
as has been consistently held, is to review
the findings of the trial court and decide
whether to reverse or affirm them. The
appellate court has the power to rehear the
case on both the question of law and fact. It
is essential for the appellate court to
address all the issues and contentions raised
by the parties in the appeal.

18. The order to be passed in
appeal must reflect a conscious application
of mind and record findings supported by
reasons on all issues arising from the
contentions put forth and pressed by the
parties. The judgment of the appellate court
must not only record the decision but also
give reasons for the same. This is necessary
as it allows the parties to understand the
reasons behind the court's decision and to
challenge it if necessary before a higher
statutory forum. In the present case the
order passed by the first appellate court
under Section 207 is subject to the remedy
of a further second appeal under Section
208 of the Revenue Code.

19. The appeal under Section 207
of the Revenue Code, being a regular first
appeal, it would be the duty of the first
appellate court to write a self-contained
9 All. Ved Prakash & Ors. Vs. State of U.P. & Ors.
1403
judgment after applying its mind to the
facts of the case, recording findings and
arriving at a conclusion based on reasons.

20. It is well settled that an appeal
is the continuation of the proceedings of the
original
court,
and
the
appellate
jurisdiction, ordinarily, involves a rehearing
on law as well as on facts. The appellate
court's duty to advert to the grounds stated
in the memorandum of appeal and pressed
by the party concerned, is a fundamental
aspect of the judicial process ensuring that
the decision in the appeal is well reasoned
and is seen to be just to the parties.

21. The first appeal being a valuable
right of the appellant, all questions of fact and
law decided by the trial court are open for
reconsideration. The appellate court, is
therefore required to address itself to all the
issues and the order of the appellate court
must display conscious application of mind
and record findings supported by reasons on
all issues and contentions.

22. The respondent no.2 has neither
adverted to the grounds raised in the appeal
nor has it given any cogent reason for passing
the order. The order impugned dated
30.01.2024 passed by the appellate court,
apart from being cryptic, appears to have
been passed without examining any of the
aspects which are required to be gone into in
a regular appeal.

23. Counsel for the respondent no.4
has not been able to dispute that the order
passed by the appellate authority is without
following the settled principles in regard to
the duties of a court exercising appellate
jurisdiction.

24. Counsel for the contesting
parties are ad idem on the point that it
would serve the ends of justice if the case is
remitted to the respondent no.2 for passing
of a fresh order, after according due
consideration to the grounds raised in the
memo of appeal and granting opportunity
to the parties concerned.

25. Having regard to the aforesaid,
this Court deems it appropriate to set aside
the order dated 30.01.2024 passed by the
respondent no.2 in Case No.2418 of 2023
(Computerized
Case
No.C202314000002481, Jay Prakash Vs.
Om Prakash), under Section 207 of the
Revenue Code.

26. The matter is remitted to
the respondent no.2 to pass a fresh
order in accordance with law, after
giving due opportunity to the parties
concerned,
and
according
consideration to the grounds raised in
the memo of appeal.

27. A prayer is made by the
counsel for the petitioner, at this stage, that
the appeal be decided by the concerned
respondent expeditiously and within a
stipulated time period.

28. Counsel for the respondents
have not opposed the aforesaid prayer.

29. It is accordingly provided that
the
concerned
respondent
would
be
expected to conclude the proceedings
expeditiously and preferably within a
period of six months from the date of
production of certified copy of the instant
order, provided there is no other legal
impediment.

30. The petition stands allowed to
the extent indicated above.
----------
1404 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 9 ILRA 1404
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.09.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ A No. 8771 of 2024

Aniruddh Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner
Ravi Singh, Raghvendra Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - Re-fixation of salary after
retirement - Recovery of Rs. 5,68,082/- -
Permissibility - Government Order dated
16.01.2007
permit
the
employer
to
examine the last 34 months period of an
employee after his retirement for refixation of salary - Violation thereof -
Effect - High Court found the impugned
recovery
order
in
violation
of
the
instructions being issued by the Hon'ble
Apex Court in Rafiq Masih's case - Held,
re-fixation of salary beyond the period of
34 months not permissible in view of the
Government Order dated 16.01.2007 -
Sushil Kumar Singhal's case relied upon
(Para 11)

Writ allowed. (E-1)

List of Cases cited:

1. St. of Punj. & ors. Vs Rafiq Masih & ors.;
(2005) 4 SSC 334

2. High Court of Punj. and Har. & ors.Vs Jagdev
Singh; (2014) 16 SCC 267

3. Sushil Kumar Singhal Vs Pramukh Sachiv
Irrigation Department & ors.; (2014) 16 SCC
444
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Ravi Singh, learned
counsel for the petitioner and Sri Ashwani
Kumar Singh Rathore, learned Standing
Counsel.

2. By means of the present petition,
the petitioner has prayed the following
main reliefs:

"I. To issue a writ, order or
direction of or in the nature of certiorari,
thereby
quashing
the
order
dated
06.09.2024, contained in Annexure No. 1 to
this writ petition.

II. To issue a writ, order or
direction of or in the nature of certiorari,
thereby
quashing
the
order
dated
07.09.2024, contained in Annexure No. 2 to
this writ petition.

III. To issue a writ, order or
direction of or in the nature of mandamus
directing the respondents not to recover
any
amount
from
the
petitioner
in
pursuance of impugned orders 06.09.2024
& 07.09.2024, contained in Annexure No. 1
& 2 to this writ petition.

IV. To issue a writ, order or
direction in the nature of mandamus
directing the respondents to release her
entire post retiral dues including pension,
gratuity, leave encashment within the
period to be fixed by this Hon'ble Court."

3. Learned counsel for the petitioner
has stated that the petitioner has retired
from the post of Senior Assistant from the
office of Deputy Director Agriculture,
Barabanki on 31.07.2024. The aforesaid
post comes within the purview of Class--III
post. After his retirement, the impugned
order dated 06.09.2024 (Annexure No. 1)
has been passed re-fixing the salary and