Jayant Banerji, J.

1. Heard Shri Sanjeev Singh and Shri Amit Pathak, learned counsel for the petitioners and Shri R.C. Singh, learned Senior Advocate assisted by Shri N.D. Shukla, learned counsel appearing for the respondent no. 1. Respondent no. 2 is represented by the learned Standing Counsel. Notice on behalf of the respondent Nos. 3 and 4 has been accepted by Shri Bhupendra Kumar Tripathi, learned counsel.

2. This writ petition has been filed for setting aside the order dated 17.3.2016 passed by the Board of Revenue, U.P. at Allahabad in Second Appeal No. 917 of 2015 (Aliyar Vs. Ram Dular and others). By means of the impugned decision of the Board, (i) a preliminary decree dated 30.11.1998 and the final decree dated 12.8.1999 passed in a suit filed by the petitioners against the respondents under the provisions of Section 229B and Section 176 of the U.P.Z.A. and L.R. Act, 19501 were set aside and (ii) the order dated 20.9.2014 passed by the Assistant Collector (Class I), Varanasi rejecting the restoration application of the respondent no. 1 on the ground of it being barred by the limitation was set aside and, further, (iii) the order passed by the Additional Commissioner (Administration), Varanasi Division, Varanasi dated 7.4.2015 was also set aside.

3. The case of the petitioners is that they and the respondent no. 1 along with one Sambhoo Nath are the heirs of one Mansha Ram. The pedigree of the family is mentioned in paragraph no. 3 of the writ petition, which is as follows:

4. It is stated that Mansha Ram was married to the daughter of one Chirkit resident of Village Bachchhawan (Pashchimpur), Pargana Kaswar Raja, Tehsil and District Varanasi. Chirkit had no male issues. He had landed properties in Village Bachchhawan (Pashchimpur) as well as in Village Khalilpur, which two villages are adjacent to each other. It is stated that after the death of Chirkit, his land and other properties were inherited by Mansha Ram and after the death of Mansha Ram, the land was inherited by his three sons, namely, Sambhoo Nath, Babulal and Mangaroo jointly. All three sons of Mansha Ram became the joint tenants of the aforementioned landed properties belonging to Late Chirkit. It is stated that since Babulal was the Karta in the joint Hindu family, only his name was entered in the revenue records, although the lands were under the joint tenancy of Sambhoo Nath, Babulal and Mangaroo. It is stated that there was mutual understanding between the three brothers and nobody objected to the name of the Babulal as Karta in the joint Hindu family to be entered into the revenue records. It is stated that after the death of Babulal, his son Aliyar became the Karta in the joint Hindu family and only his name was mentioned in the revenue records with regard to the landed properties aforesaid. It is stated that consolidation operations in the villages Bachchhawan and Khalilpur were started by a notification made under the Consolidation of Holdings Act, 19532 followed by a notification under Section 52 in the year 1988. It is stated that even though the whole family was a joint family, to avoid future disputes a memo of partition was prepared on 15.1.1998 which was termed as a family settlement. It is stated that to avoid any further controversy or dispute, an Original Suit No. 197 of 1998 was instituted under Section 176 read with Section 229B of the Zamindari Abolition Act in the court of the Sub-Divisional Officer by the petitioners on 5.5.1998. It is alleged that a written statement was filed by the respondent no. 1, who admitted the plaint. One Shri R.K. Srivastava was the advocate for the respondent no. 1, who also affixed his signature in the written statement. It is stated that in order to fortify the admissions made in the written statement a compromise was entered into between the co-tenants on 31.8.1998 which was also filed. On the several dates fixed in the aforesaid suit, the respondent no. 1 himself and his counsel affixed their signatures on the order-sheet. Testimony of P.W.1-Mangaroo and P.W.2-Doodhnath and D.W.1-Aliyar was also recorded. On 21.11.1998, an order was passed by the Sub-Divisional Officer by way of a preliminary decree. The Lekhpal prepared a 'phat' (partition memo) and objections were invited against that memo of partition. It is stated that respondent no. 1 filed his no-objection to the memo of partition prepared by the Lekhpal. Accordingly, a final decree was made by the Sub-Divisional Officer on 12.8.1998.

5. After passage of nearly 15 years, an application under Order 9 Rule 13 of the Code of Civil Procedure, 19083 read with Section 151 was filed by the respondent no. 1 in the trial court on 4.9.2013 contending that he never participated in the proceedings of the suit and he had no notice of the proceedings. The aforesaid application was supported by an application under Section 5 of the Limitation Act. Two sets of objections were filed by the petitioners. By an order dated 20.9.2014, the Assistant Collector (First Class) dismissed the applications of the respondent no. 1. The respondent no. 1, thereafter, filed a Misc. Appeal in the court of the Commissioner, Varanasi Division. The Additional Commissioner (Administration) dismissed the appeal on 7.4.2015 while affirming all the findings of the trial court and observed that no application under Order 9 Rule 13 would lie and only court which has jurisdiction to set aside the concerned decree was the civil court. Aggrieved against the order dated 7.4.2015, a second appeal was filed by the respondent no. 1 before the Board of Revenue in which the order impugned was passed.

6. Shri Sanjeev Singh, learned counsel for the petitioner has urged that the respondent no. 1, who was the defendant no. 1 in the aforesaid suit could not have filed the application under Order 9 Rule 13 CPC as he had appeared in the suit and participated in the proceedings till the passing of the final decree. Learned counsel has referred to the observations made by the Assistant Collector in the order dated 20.9.2014 while rejecting the application under Order 9 Rule 13 CPC. It is contended that the suit was filed after the notification under Section 52 of the Consolidation Act was issued by the State Government and, therefore, it could not have been held that the suit was barred under Section 49. Shri Sanjeev Singh contended that there was no occasion to stake any claim with regard to the suit property during consolidation proceedings as no one objected to the name of Babulal appearing in the revenue records in the capacity as Karta of joint Hindu family. It is stated that after consolidation proceedings a decision was taken within the family to avoid future controversies and as such the aforesaid suit was filed in which a compromise was entered into between the parties and the suit came to be decreed. The contention of the learned counsel is that the second appellate court was deciding the matter that arose out of an application filed by the petitioners under Order 9 Rule 13 CPC, therefore, could not have decided the suit itself but the proper course for the second appellate court was to have remanded the matter to the trial court for adjudication. The learned counsel has referred to the provisions of Order 9 Rule 13 CPC to refer to its scope and extent. It is contended that the order of the second appellate court in dismissing the suit is beyond jurisdiction.

7. Shri R.C. Singh, learned Senior Advocate appearing for the respondent no. 1 has stated, after referring to the pedigree of the family, that Aliyar was the sole recorded tenant of the property in dispute that he inherited from his father, namely, Babulal. It is his contention that the aforesaid Chirkit had executed a gift deed in favour of his father Babulal way back on 28.1.1915 which is a registered document. It is stated that the petitioners had no right whatsoever over the property in dispute as it was the property that was gifted to Babulal by his maternal grandfather out of love and affection since Babulal's mother was the sole daughter of Chirkit. It is stated that in the year 1970, consolidation operations were initiated in respect of the villages by means of a notification made under Section 4 of the Consolidation Act by the State Government. It is stated that in the year 1982 a notification under Section 52 of the Consolidation Act was issued by the State Government. It is stated that during the entire period of 12 years of the pendency of the consolidation proceedings no objections were raised by the plaintiff-petitioners regarding any right that they may have had with regard to the suit property. Learned counsel has placed the provisions of Section 49 of the Consolidation Act which bars any proceedings or suit in civil or revenue courts with respect to rights in such land that are covered by notification issued under sub-section (2) of Section 4 or with respect to any other matter for which a proceeding could or ought to have been taken under the Consolidation Act. It is stated that clearly the aforesaid suit filed by the petitioners/theirs predecessor was barred.

It is next contended that since the suit property was not the ancestral property of the petitioners, therefore, co-tenancy rights could not be conferred on Sambhoo Nath or Mangroo or their heirs as it would amount to co-option. Learned counsel has referred to a judgment of this Court in the case of Budhlal and another Vs. Deputy Director of Consolidation and others 1982 All. LJ 864 (para 3, 4, 14 and 16) in support of his contention. It is contended that co-tenancy could have been conferred prior to coming into force during currency of U.P. Tenancy Act, 1939, but not after its repeal.

Learned counsel has referred to the provisions of Order 23 Rule 3 of the CPC and has stated that a perusal of the application made under Order 9 Rule 13 CPC reflects that a clear statement was made by the respondent no. 1 regarding want of notice in the suit and his non-participation therein. Learned counsel has also states that an imposter had been set up in the suit in place of the respondent no. 1. It is his contention that the compromise entered into between the parties is fraudulent and no decree could have been passed thereon. It is contended that where an allegation has been made regarding a fraudulent decree, the burden of proof is on the decree holder to establish that the decree was not fraudulent. Learned counsel has relied upon a judgment of this Court in the case of Mohan Dhobi Vs. Smt. Kastoori Devi 1976 All. LJ 174 (para 9) in support of his contention. It is next contended that the court of the Assistant Collector and Additional Commissioner have been swayed away by the fact that the application under Order 9 Rule 13 was filed way beyond time, little considering the aspect of fraud that was reflected in the application under Order 9 Rule 13 filed by the respondent no. 1. It is contended that the bar of limitation would not apply in cases of fraud as has been held in a judgment of the Supreme Court in the case of Santosh Vs. Jagat Ram and another 2010 AIR SCW 6540 ( para 11 and 12).

Shri R.C. Singh, learned Senior Counsel states that the trial court as well as the first appellate court, while considering the application under Order 9 Rule 13 CPC, recorded no finding regarding the aspect of service/ service of summons on the respondent no. 1 but proceeded on the basis of a conjecture that the respondent no. 1 could have had knowledge on the basis of the entries made in the Khatauni. It is also stated that the trial court could not have compared the signature of the respondent no. 1 with the signature appearing in the application made under Order 9 Rule 13 CPC when it was seriously disputed fact by the respondent no. 1 that he had not signed the pleading or the documents filed in the suit aforesaid. He contends that the first appellate court has shifted the burden on the respondent no. 1 of his failure to prove the signatures appearing on the compromise and the testimony as not being his. He contends that the first appellate court had misdirected itself in observing that legality of the concerned decree could be challenged only before a competent civil court and such a decree could not be examined by the revenue court. On the aspect of maintainability of the second appeal, learned counsel for the respondent no. 1 has relied upon a judgment of this Court in the case of Mani Ram and others Vs. Viresh Kumar and others 1985 RD 375 (para 17 to 21) to contend that against an order passed in first appeal from order, a second appeal would lie before the second appellate court.

Learned counsel has contended while referring to the judgment of the Supreme Court in the case of R. Rajanna Vs. S.R. Venkataswamy and others AIR 2015 Supreme Court 706 (para 8, 9 and 10) to contend that challenge to a decree obtained by fraud has to be made before the same court which has passed the decree.

On the aspect of want of requirement of framing a substantial question of law by the second appellate court in revenue jurisdiction, learned counsel relies upon a judgment of the Supreme Court in the case of State of Uttarakhand Vs. Mohan Singh and others AIR 2013 SC 38 [LQ/SC/2012/778] (para 26). On the issue of maintainability of the suit given the provisions of Section 49 of the Consolidation Act, learned counsel for the respondent no. 1 has stated that there would be inherent lack of jurisdiction of the trial court in entertaining the suit itself in view of the bar of Section 49 of the Consolidation Act. In support of his contention, learned counsel has relied upon a judgment of the Supreme Court in the case of Hindustan Zinc Limited Vs. Ajmer Vidyut Vitran Nigam Limited 2019 (17) SCC 82 (paras 24, 22, 25 and 26) and judgment of a Coordinate Bench of this Court in the case of Committee of Management, Krishna Sahkari Awas Samiti Limited and others Vs. State of U.P. and others 2022 (3) ADJ 110 ( para 19 to 24). Learned counsel states that in the present case the second appeal had been decreed at the admission stage itself but there is no error as substantial justice has been done given the fact that Babulal was continuously recorded in the revenue records as the bhumidhar with transferable rights and the decree that was obtained fraudulently was correctly set aside by the second appellate court and as such, this Court may not interfere in exercise of writ jurisdiction. Learned counsel in this regard has relied upon two judgments of the Supreme Court (i) S.D.S. Shipping Pvt. Ltd. Vs. Jay Container Services Co. Pvt. Ltd. And others AIR 2003 Supreme Court 2186 (para 12) (ii) State of Punjab and others Vs. Savinderjit Kaur AIR 2004 Supreme Court 3224 (para 16). Learned counsel has concluded his arguments by pointing out that the written statement and the compromise deed were allegedly signed and filed on the same day, that is, 4.6.1998 and the decree was made soon thereafter which evinces that the entire process which was rushed through by the petitioners, and that itself reflects suspicious circumstances.

8. In his rejoinder, Shri Sanjeev Singh, has rebutted the contention of the learned counsel for the respondent to contend that the notification under Section 52 of the Act, 1953 was issued in the year 1988 and not 1982 as pointed out by the learned counsel for the respondent. It is stated that the case at hand is not a case of fraud but of an allegedly unlawful decree purportedly made in contravention of Section 49 of the Consolidation Act and, therefore, the second appellate court ought to have remanded the matter to the trial court for consideration rather then proceeding to dismiss the suit itself, knowing that it was exercising jurisdiction in second appeal against an order and not against a decree. It is stated that given contentious issues raised by learned counsel for the respondent it was all more important for case to be remanded to the competent trial court, rather than the second appellate court proceeding to decide the same summarily. Learned counsel would contend that given the provisions of Order 41 Rule 11 CPC, at the admission stage, the second appellate court would have jurisdiction only to dismiss the appeal but not adjudicate and allow the appeal without framing a substantial question of law and giving due opportunity to the counsel for the petitioners to address it on the question.

9. I have perused the record and considered the rival submissions made by the learned counsel for the parties.

10. After the suit was decreed on the basis of a compromise allegedly entered into between the parties, the aforesaid application under Order 9 Rule 13 CPC dated 4.9.2013 was filed alongwith an application under Section 5 of the Limitation Act on the same day. Both these applications were supported by affidavits. Objections were filed on behalf of the petitioners. Thereafter, the order dated 20.9.2014 was passed by the Assistant Collector, First Class/Additional City Magistrate-IV, Varanasi and the applications were dismissed. In the operative part of the order, it was observed that with regard to the delay in filing the application, the sole fact that has been stated is that when the plaintiffs made efforts to sell the plots in dispute and started showing them to the prospective purchasers of the plots in dispute, then on the basis of suspicion, and after perusing the record on 27.8.2013, all facts relating to fraud came to light. The Court observed that the applicant does not appear to be telling truth, as after the orders were passed, (it is improbable that) the applicant never inspected the revenue record during the past 15-16 years. The Court noticed that signature of the applicant on compromise deed was made and the same was verified and the signature appearing on the application and the order sheet, prima facie, match his signature appearing in the restoration application. It was accordingly held that it appears that the applicant had prior knowledge of the order dated 30.11.1998 and 12.8.1999. Accordingly, it was held that the restoration is extremely time barred and accordingly the application was dismissed.

11. Thereafter, an appeal was filed in the year 2014 by the respondent no.1 under Section 331 of the Zamindari Abolition Act against the aforesaid order dated 20.9.2014. It was observed in the judgment dated 7.4.2015 passed in appeal that the appellant had failed to establish that fraud has taken place in the original suit and that his signature did not appear in the compromise deed or his testimony. It was held that the decree was a consent decree and to impugn the same, the civil court had to be approached as the revenue court could not try the validity and legality of the consent decree. Accordingly, it was held that the appeal is not maintainable and was dismissed.

12. The order of first appellate court dated 7.4.2015 was challenged before the Board of Revenue in second appeal purportedly filed under Section 331(4) of the Zamindari Abolition Act. The appellate court observed that the trial court could have verified the compromise after calling the witnesses to the compromise deed and recording necessary evidence. It was observed that once the appellant had played fraud and stated that the compromise was not signed by him, then the trial court ought not to have recorded a finding on the basis of prima facie similarity of signature. While relying on a judgment of the Supreme Court, the Board observed that where there is dispute with regard to compromise decree regarding its genuineness, the jurisdiction to try such a dispute lies with the court which made the compromise decree. The appellate court held that plots in dispute was never recorded in the name of Mansha Ram and there being no proof on record that the plots in dispute were given to Mansha Ram, in such a situation, the plots in dispute could not be considered to be belonging to the family. It was observed that Babu Lal was given the property in dispute by his grand-father, whereafter his name was recorded and thereafter, name of Aliyar, respondent no.1 came to be recorded in the revenue record. It was noted that the revenue entries are very old and the petitioner-defendant did not raise any objection during the consolidation proceedings and neither were statement of co-tenure holder proved and, therefore, the dispute with regard to the plots in dispute would be barred under the provisions of Section 49 of the Consolidation Holding Act.

13. On the basis of the aforesaid discussion, the second appeal was allowed at the stage of admission and the order of the trial court and the appellate court dated 20.9.2014 and 7.4.2015, on the issue of restoration, were set aside. However, the orders dated 30.11.1998 and 12.8.1999 were also set aside by the Board and the suit was dismissed.

14. At this stage it would be pertinent to refer to the provisions of Section 331 of the Zamindari Abolition Act which read as under:-

"331. Cognizance of suits, etc. under this Act-(1) Except as provided by or under this Act no court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application.

Provided that where a declaration has been made under Section 143 in respect or any, holding or part thereof, the provisions of Schedule II insofar as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.

Explanation-If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.

(1-A) Notwithstanding anything in sub-section (i), an objection, that a court mentioned in Column 4 of Schedule II, or, as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or, proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(2) Except as hereinafter provided no appeal shall lie from an order or decree passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid:

(3) An appeal shall lie from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908 (V of 1908) or in Order 43, Rule 1 of the First Schedule to that Code passed by a court mentioned in column No. 4 of Schedule II to this Act in proceedings mentioned in Column 3 thereof to the court or authority mentioned in column No. 5 thereof.

(4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid."

(emphasis supplied)

15. It is noted that the orders aforesaid dated 20.9.2014 and 7.4.2015 were passed by the trial court and the appellate court in proceedings for restoration arising out of application filed by the respondent no.1 under Order 9 Rule 13 CPC and under Section 5 of the Limitation Act. The second appeal preferred by the respondent no.1 was not a second appeal from a decree but a second appeal from a final order passed in the first appeal, which first appeal arose from an order of the trial court rejecting the application for restoration filed under Order 9 Rule 13 CPC as well as the application under Section 5 of the Limitation Act. The Board, while deciding the second appeal has clearly exceeded its jurisdiction in dismissing the suit as well as the ex-parte decree made in the suit.

16. The second appeal before the Board as stated above, was against an order and not against a decree and in view of the facts and circumstances of the case, the Board ought to have confined its opinion/judgment to the merits of the order that was under challenge before it.

17. As such, the order passed in the second appeal dated 17.3.2016 by the Board of Revenue cannot stand and is hereby set aside. The Board shall, therefore, would proceed to decide the second appeal afresh in accordance with law.

18. This petition is, accordingly, allowed. Pending applications, if any, are disposed of.