Decided on March 12,2013

MEGH RAJ Respondents


V.K.BIST, J. - (1.) INSTANT petition has been filed by the petitioner challenging the order dated 21.01.2009 passed by Addl. Chief Revenue Commissioner, Garhwal Mandal, Pauri, Camp -Dehradun in Second Appeal No. 57 of 2005 -06 Megh Raj Vs. Narendra Singh and others.
(2.) IT is asserted that petitioner filed suit for partition under Section 176 of U.P.Z.A. & L.R. Act in respect of property situate in village Saliyar Salhapur (Mushtakam), Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar in the Court of Assistant Collector (1st Class). The trial Court although framed 10 issues on the pleadings of the parties. It is asserted that the trial Court did not decide the issues except issue no.9 and passed judgment on 23.09.2003 without recording any findings on the issues. Thereafter, the petitioner preferred an appeal no. 3 of 2003 -04 before the Commissioner, Garhwal Mandal, Pauri, against the preliminary decree. In the meantime, the Assistant Collector (1st Class), Roorkee, while preparing the final decree, accepted the Kurras. Then the petitioner constrained to prefer another appeal against the final decree. Both the appeals were consolidated. The Addl. Commissioner, after setting -aside the judgment and order dated 23.09.2003 and 12.12.2003 remanded the matter to the trial Court to decide the matter on merit, after giving findings on all the issues. Aggrieved by the order of Addl. Commissioner, the respondent no.1 preferred a Second Appeal no. 57 of 2005 -06 and the Second Appellate Court i.e. the Addl. Chief Revenue Commissioner, Garhwal Mandal, Pauri at Dehradun without framing any substantial question of law or question of law and without reversing the findings recorded by the 1st Appellate Court, allowed the Second Appeal in toto and maintained the judgment of the trial Court dated 23.09.2003 and 12.12.2003.
(3.) I have heard Mr. Lok Pal Singh, Advocate for the petitioner, Mr. B.D. Pandey & Mr. H.C. Pathak, Advocates for respondent no.1, Mr. Arvind K. Sharma, Advocate for the respondent no.2 and perused the record. Relying on Section 341 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act) learned counsel for the petitioner submitted that provisions of Code of Civil Procedure 1908 shall apply to the proceedings of the Act. He also referred Section 331 (4) of the Act and submitted that a Second Appeal shall lie on any of the grounds specified in Section 100 of C.P.C. from the final order or decree passed in an appeal under sub -section (3), to the authority, if any. Learned counsel for the petitioner submits that the Addl. Chief Revenue Commissioner, Garhwal Mandal, Pauri, Camp - Dehradun decided the Second Appeal without setting -aside the findings recorded by the 1st Appellate Court and also without framing of any substantial questions of law as provided under Section 331 (4) of the Act. In support of his arguments learned counsel for the petitioner relied upon the judgment of Honble the Apex Court, reported in 2013 (1) U.D. -21, " State of Uttarakhand vs. Mohan Singh and others". He also referred the judgment of Honble the Supreme Court, reported in (2011) 4 SCC 240, "H. Siddiqui (dead) by Lrs. Vs. A Ramalingam" and (2012) 2 SCC 161, " Y. Nagaraj vs. Jalajakshi and others".;

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