H.N. Seth, J. - (1.) Mst. Sitawati has filed this petition under Art. 2:26 of the Constitution challenging the order of the Board of Revenue dated 3rd February 1972 allowing a second appeal filed by Bishambhar Singh and remanding the case to the Commissioner for fresh adjudication. One Brijendra Singh, respondent No. 4 to this writ petition, filed a suit under Section 176 of the U. P. Zamindari Abolition and Land Reforms Act against the petitioner Mst. Sitawati, claiming that he had half share in the property in dispute. The suit was contested by the petitioner inter alia on the ground that Brijendra Singh had merely 1/9th share in the property. During the pendency of the suit, Brijendra Sinai transferred the half share in the property, claimed by him, to Bishambhar Singh and others. Thereafter, Bishambhar Singh and others moved' an application before the trial court for bringing their names on the record. The trial court disposed of that application on 19-2-1969 by the following order:- "Heard. The transfer allegedly took place during the pendency of the suit. Hence no substitution can be ordered. However allowed to prosecute under Order 22, Rule 10, C. P. C." Thereafter, the suit filed by Brijendra Singh was decreed, and it was held that he had a half share in the property in dispute. Being aggrieved by the decree passed by the trial court Smt, Sitawati went up in appeal before the Additional Commissioner. In that appeal she impleaded Brijendra Singh the plaintiff as a respondent but did not implead his transferees as parties. Subsequently, Brijendra Singh and Sitawati moved an application stating that they had entered into a compromise according to which Brijendra Singh had merely 1/9th share in the property in dispute and praying that the appeal be disposed of accordingly. The Commissioner accepted the compromise and passed a decree in terms thereof. When Bishambhar Singh and others, transferees of Brijendra Singh, came to know about the decree passed by the Additional Commissioner, they filed a second appeal before the Board of Revenue. In second appeal Smt, Sitawati took a preliminary objection and urged that Bishambhar Singh and others, not being parties to the suit, had no locus standi to maintain the appeal, specially when they were a mere transferees from the plaintiff and their application for substitution had already been rejected. The Board repelled the preliminary objection and held that the appeal, at the instance of Bishambhar Singh, was maintainable. It came to the conclusion that once a transferee had been permitted to prosecute the suit under Order 22, Rule 10, C.P.C., the Commissioner erred in accepting the compromise filed by Brijendra Singh and Smt. Sitawati,. Accordingly, by an order dated 3-2-1972, he allowed the appeal and remanded the case to the Commissioner for deciding the appeal, filed by Sitawati, afresh. Being aggrieved by the order of the Board, Smt. Sitawati has filed the present writ petition.
(2.) Learned Counsel for the petitioner contended that as in the appeal filed before the Additional Commissioner, Bishambhar Singh was not a party, no second appeal was maintainable at his instance. I am unable to accept this submission. The second appeal was filed under Section 331 of the U.P. Zamindari Abolition and Land Reforms Act. Sub-sec. (4) there of provides that a second appeal shall lie against a decree passed by the Commissioner in appeal, to the Board of Revenue on the grounds specified in Section 100 of the Civil Procedure Code. This section no where lays down that it is only a person who is a party to an appeal before the Commissioner who alone is entitled to maintain a second appeal. It also does not define the persons who are entitled to file a second appeal against an appellate decree passed by the Additional Commissioner. In my opinion any person whose rights are directly affected by the appellate decree passed by the Additional Commissioner and who is aggrieved by it, can be permitted to approach the Board of Revenue by way of second appeal. As Bishambhar Singh and others claimed that they has purchased the entire interest of Brijendra Singh plaintiff in the property in dispute and they were permitted by the trial court to prosecute the suit under Order 22 Rule 10, C.P.C., it is obvious that their interest was directly affected by the appellate decree passed by the Additional Commissioner. In the circumstances Bishambhar Singh way rightly permitted to maintain the second appeal before the Board of Revenue.
(3.) Learned counsel for the petitioner then contended that as the transfer made in favour of Bishambhar Singh was a transfer pendente lite, was subject to the ultimate decision in the suit. Such transfer pending lite did not preclude the transfer from entering into compromise and any decree passed in the suit would bind the transferee as well. Accordingly, the compromise entered into between Brijendra Singh and the petitioner was lawful compromise which was equally binding on Brijendra Singh's transferees and the lower appellate court was bound to pass the decree in terms of the compromise as provided in Order 23, Rule 3, C.P.C. There is no force in this submission. For the application of Order 23, Rule 3, C.P.C. the court, passing a decree in terms of the compromise, has to be satisfied that the suit has been adjusted wholly or in part by a lawful agreement or compromise. In a case where the plaintiff or the defendant has assigned his interest in the property involved in the suit and as provided in Order 22, Rule 10, C.P.C. the Court permits such transferee to prosecute the suit, the suit can be wholly adjusted only with the consent of the transferee who had been permitted by the trial court to prosecute the suit. In the circumstances the Board of Revenue was right in holding that there had been no such legal adjustment of the suit, as is contemplated by Order 23, Rule 3, C.P.C. and the Commissioner erred in passing a decree in terms of the compromise entered into between Brijendra Singh and the present petitioner.;