Uttarakhand High Court
Atul Shah And Another … vs & Ors on 26 August, 2025
2025:UHC:7542
Reserved on:20.08.2025
Delivered on:26.08.2025
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No.132 of 2012
Atul Shah and another ......Petitioners
Vs.
Addl. Chief Revenue Commissioner Circuit Court, Nainital, Uttarakhand
& Ors.
.....Respondents
Presence:
Mr. Aditya Singh, learned counsel for the Petitioners.
Ms. Mamta Bisht, learned DAG with Mr. Yogesh Tiwari, learned Addl.
CSC, for the State of Uttarakhand.
Mr. Anil Kumar Joshi, learned counsel for the Respondent Nos.6 and 7.
Hon'ble Ashish Naithani, J.
1. The present writ petition under Article 227 of the Constitution of
India has been filed challenging the order dated 01.10.2011 passed by
the Additional Chief Revenue Commissioner, Circuit Court, Nainital,
whereby the second appeal preferred by Respondents No. 6 and 7 was
allowed, setting aside the judgment and decree dated 26.10.2010
rendered by the Additional Commissioner, Kumaon Mandal, Nainital.
2. The land in dispute is situated in Village Damuadunga, Tehsil
Haldwani, District Nainital, comprising plots originally numbered
95/98 (now 88B, 101 to 113), measuring approximately 96 bighas. The
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Writ Petition (M/S) No. 132 of 2012, Atul Shah and another Vs Addl. Chief Revenue Commissioner, Circuit Court,
Nainital, Uttarakhand and Ors.
Ashish Naithani J.
2025:UHC:7542
land stood recorded as a maurusi tenancy in the name of Shri Heera Lal
Shah, son of Jai Lal Shah. Shri Heera Lal Shah expired in the year
1964, and his three sons, namely Jawahar Lal Shah, Chandra Lal Shah
and Kailash Lal Shah, were recorded as his successors in the revenue
records.
3. In the year 1972, the land was notified as a reserve forest, but the
said declaration was subsequently set aside by the High Court of
Judicature at Allahabad by order dated 06.01.1979. Thereafter, the
names of the aforesaid three brothers continued in the records, and they
were recognised as maurusi kashtkars, and, with the coming into force
of the U.P. Zamindari Abolition and Land Reforms Act in the area, they
became entitled to be treated as bhumidhar tenure holders.
4. It is alleged that, taking advantage of the absence of his brothers,
Shri Jawahar Lal Shah procured mutation of his name exclusively over
the entire land, though he was entitled only to one-third share.
According to the Petitioners, despite requests, no partition was effected.
On the other hand, it is the case of Respondents No. 6 to 8, the sons of
late Jawahar Lal Shah, that the entries were valid and that their
predecessor had also executed a will in his favour.
5. Shri Jawahar Lal Shah passed away on 27.09.1990. He was
succeeded by his three sons, who are Respondents No. 6, 7 and 8
herein. Disputes arose thereafter, leading the Petitioners, who are the
sons of the other two brothers, to file a declaratory suit on 07.09.1991
under Section 229-B of the U.P. Zamindari Abolition and Land
Reforms Act before the Sub-Divisional Magistrate/Assistant Collector,
Haldwani. They sought a declaration of their 1/3rd share each in the
land and consequential correction of the revenue records.
6. The trial court dismissed the suit by judgment dated 14.12.2006
(decree dated 18.12.2006). The Petitioners thereafter preferred ZA
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Writ Petition (M/S) No. 132 of 2012, Atul Shah and another Vs Addl. Chief Revenue Commissioner, Circuit Court,
Nainital, Uttarakhand and Ors.
Ashish Naithani J.
2025:UHC:7542
Appeal Nos. 98 (2006-07) and 84 (2007-08) before the Additional
Commissioner, Kumaon Mandal, Nainital. By judgment dated
26.10.2010, the appeals were allowed. The order of the trial court was
set aside, and it was held that the Petitioners were entitled to 1/3rd
share each, while the remaining 1/3rd share vested in the heirs of late
Shri Jawahar Lal Shah. All such heirs were declared to be bhumidhar
tenure holders.
7. Aggrieved, Respondents No. 6 and 7 preferred Second Appeal
No. 03 of 2010-11 under Section 331 of the U.P. Zamindari Abolition
and Land Reforms Act before the Additional Chief Revenue
Commissioner, Circuit Court, Nainital. The appellate authority, by the
impugned order dated 01.10.2011, allowed the second appeal. It was
observed that since one of the parties (Madan Lal Shah) had
predeceased the decree of the first appellate court and substitution of
his legal heirs had not been carried out, the decree could not stand.
Certain discrepancies in the description of the land were also noted.
Consequently, the decree dated 26.10.2010 was set aside.
8. It is against this order of the Additional Chief Revenue
Commissioner that the Petitioners have approached this Court, praying
for restoration of the judgment and decree dated 26.10.2010.
9. Learned counsel appearing for the Petitioners assailed the
impugned order dated 01.10.2011 of the Additional Chief Revenue
Commissioner on multiple grounds, both of procedure and of
substance.
10. At the outset, it was submitted that the impugned order had been
rendered in the second appellate jurisdiction under Section 331 of the
U.P. Zamindari Abolition and Land Reforms Act. By its very nature,
such jurisdiction is circumscribed and can be exercised only when a
substantial question of law arises. It was argued that in the present case,
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Writ Petition (M/S) No. 132 of 2012, Atul Shah and another Vs Addl. Chief Revenue Commissioner, Circuit Court,
Nainital, Uttarakhand and Ors.
Ashish Naithani J.
2025:UHC:7542
the Additional Chief Revenue Commissioner did not frame any
substantial question of law, nor did he indicate what legal issue
warranted interference. Instead, the appeal was decided summarily,
which, according to the Petitioners, is a clear jurisdictional error that
vitiates the order in its entirety.
11. Learned counsel further urged that the first appellate court's
judgment dated 26.10.2010 was a well-reasoned decision rendered after
appreciating both oral and documentary evidence. That court had
examined the lineage of succession from late Heera Lal Shah, who was
the original recorded tenure holder. It correctly held that upon his death
in 1964, his three sons, namely Jawahar Lal Shah, Chandra Lal Shah
and Kailash Lal Shah, became co-tenure holders in equal shares.
Consequently, the Petitioners, being the sons of Chandra Lal Shah and
Kailash Lal Shah, were entitled to succeed to their respective one-third
shares. The remaining one-third was rightly held to vest in the heirs of
late Jawahar Lal Shah. The decree of 26.10.2010 thus restored the
balance envisaged by law, which the Additional Chief Revenue
Commissioner set aside without adequate reasons.
12. It was next contended that the reasoning adopted in the impugned
order, that the decree of the first appellate court was a nullity because it
stood partly in favour of a deceased person, namely Madan Lal Shah,is
misconceived. The Petitioners' learned counsel submitted that under
Order 22 Rule 4(3) of the Code of Civil Procedure, where no
application for substitution of heirs is made within the prescribed
period, the proceedings abate only as against the deceased party. Such
abatement does not vitiate the entire proceedings nor render the decree
in favour of the surviving parties invalid. Therefore, even assuming that
substitution had not been carried out in time, the decree recognising the
Petitioners' shares could not have been annulled in toto.
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Writ Petition (M/S) No. 132 of 2012, Atul Shah and another Vs Addl. Chief Revenue Commissioner, Circuit Court,
Nainital, Uttarakhand and Ors.
Ashish Naithani J.
2025:UHC:7542
13. Learned counsel for the Petitioners also placed reliance on
Section 87 of the U.P. Tenancy Act, 1939, to submit that even under the
tenancy law, proceedings do not abate in their entirety upon transfer or
devolution of interest during pendency. At the highest, abatement is
only qua the deceased party if substitution is not made, and the rights
of surviving parties remain unaffected. It was contended that the
Additional Chief Revenue Commissioner erred in treating the decree of
26.10.2010 as a nullity in toto on account of the death of Madan Lal
Shah, which is contrary to the statutory mandate.
14. Learned counsel also drew attention to the prolonged history of
the dispute. It was pointed out that the Petitioners had instituted their
declaratory suit under Section 229-B as far back as 1991, seeking
recognition of their shares in the land. That suit was dismissed by the
trial court in 2006, but the appellate authority, in 2010, rectified the
error and granted them the relief they were entitled to. To unsettle such
findings after more than two decades of litigation, on what the
Petitioners described as hyper-technical grounds, causes grave
prejudice and defeats the ends of justice.
15. Learned counsel also highlighted that the Additional Chief
Revenue Commissioner failed to consider the principle that mutation
entries do not create or extinguish title, but are only for fiscal purposes.
It was submitted that the exclusive entry of Jawahar Lal Shah's name in
the revenue records, obtained during the service tenure of his brothers
away from Haldwani, could not confer absolute ownership. The
appellate court, in 2010, had rightly corrected this and declared all three
branches to be entitled co-tenure holders.
16. It was thus prayed that the writ petition be allowed, the order
dated 01.10.2011 be set aside, and the decree dated 26.10.2010 of the
Additional Commissioner be restored.
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Writ Petition (M/S) No. 132 of 2012, Atul Shah and another Vs Addl. Chief Revenue Commissioner, Circuit Court,
Nainital, Uttarakhand and Ors.
Ashish Naithani J.
2025:UHC:7542
17. Per contra, learned counsel for Respondents No. 6 and 7
supported the impugned order. It was contended that the decree dated
26.10.2010 of the Additional Commissioner was unsustainable as it had
the effect of granting relief in favour of Madan Lal Shah, who had
predeceased the decree, without substitution of his heirs. In law, it was
argued, no decree could have been passed in favour of a deceased
person, and the Additional Chief Revenue Commissioner was therefore
justified in holding the decree to be a nullity.
18. It was further submitted that the trial court had, by its order dated
14.12.2006, dismissed the Petitioners' claim after appreciating the
evidence. The first appellate court had interfered without any justifiable
reason. The trial court had correctly recorded that the Petitioners failed
to establish their co-tenancy rights, whereas the Respondents'
possession and title through succession and certain transactions stood
established.
19. The learned Standing Counsel for the State adopted the
arguments advanced on behalf of the private Respondents and
submitted that the impugned order was passed within the jurisdiction of
the Additional Chief Revenue Commissioner and does not warrant
interference in supervisory jurisdiction.
20. Heard learned Counsel for the Parties and perused he records.
21. The first issue that falls for consideration concerns the scope of
jurisdiction vested in this Court while dealing with a second appeal
under Section 331 of the U.P. Zamindari Abolition and Land Reforms
Act. The provision, by its express language, restricts the interference of
the second appellate court to cases where a substantial question of law
is involved. The scheme is in pari materia with Section 100 of the Code
of Civil Procedure, the consistent interpretation of which has been that
the jurisdiction is not to be exercised as a third court of fact, but only in
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Writ Petition (M/S) No. 132 of 2012, Atul Shah and another Vs Addl. Chief Revenue Commissioner, Circuit Court,
Nainital, Uttarakhand and Ors.
Ashish Naithani J.
2025:UHC:7542
circumstances where a question of law of recurring consequence or
general importance requires adjudication
22. In the present case, a plain reading of the impugned order reveals
that no substantial question of law was formulated by the Additional
Chief Revenue Commissioner. Instead, the appeal was allowed on the
twin grounds, namely:
(i) that the decree of the first appellate court stood in favour of
one Madan Lal Shah, who had predeceased the judgment
without substitution of his heirs; and
(ii) (ii) that certain discrepancies in the measurement of the
land area existed between the plaint and the decree. Neither
of these issues qualifies as a substantial question of law to
justify interference. The omission to formulate such a
question strikes at the very root of jurisdiction, and on this
ground alone, the impugned order is rendered vulnerable.
23. Adverting to the merits, the central issue pertains to the
devolution of rights consequent upon the demise of late Shri Heera Lal
Shah in the year 1964. Section 171 of the U.P. Zamindari Abolition and
Land Reforms Act, 1950, is explicit in providing that, upon the death of
a bhumidhar, his interest devolves upon his heirs, who inherit as co-
tenure holders in equal shares, save as otherwise provided by law
24. It is undisputed that late Shri Heera Lal Shah was survived by
three sons, namely Jawahar Lal Shah, Chandra Lal Shah and Kailash
Lal Shah. By operation of Section 171, each of them acquired a one-
third share in the holding. Upon their demise, their respective heirs
stepped into their shoes. The Petitioners, being the sons of Chandra Lal
Shah and Kailash Lal Shah, thus acquired one-third shares each, while
the heirs of late Jawahar Lal Shah inherited the remaining one-third.
7
Writ Petition (M/S) No. 132 of 2012, Atul Shah and another Vs Addl. Chief Revenue Commissioner, Circuit Court,
Nainital, Uttarakhand and Ors.
Ashish Naithani J.
2025:UHC:7542
This statutory position flows directly from Section 171 and admits of
no ambiguity.
25. It is well settled that mutation entries are not conclusive of title;
they are fiscal in nature and serve the purpose of revenue collection.
The exclusive entry of Jawahar Lal Shah's name in the revenue papers,
procured at a time when his brothers were away in service, could not
divest the shares of the other two branches, nor enlarge his own. The
first appellate court, in its judgment dated 26.10.2010, rightly applied
this principle and restored the lawful shares of the Petitioners alongside
those of the heirs of late Jawahar Lal Shah.
26. The second appellate court, however, interfered on the ground
that one of the parties in whose favour the decree stood, namely, Madan
Lal Shah, had died before the appellate judgment, and his heirs were
not substituted. The law on this point is clear. Under Order 22 Rule 4 of
the Code of Civil Procedure, in the event of non-substitution, the
proceedings abate only as against the deceased party. Such abatement
does not nullify the proceedings in their entirety, nor does it invalidate
the relief granted to other surviving parties.
27. It is further significant to observe that Section 87 of the U.P.
Tenancy Act, 1939, which continues to govern proceedings under the
Zamindari Abolition and Land Reforms Act, embodies the principle
that the transfer of a holding or devolution of interest during the
pendency of a suit does not render the proceeding infructuous. The
transferee or heir may, with the leave of the court, be substituted in
place of the original party. In default of such substitution, abatement is
confined only to the interest of the deceased or transferred party. The
entire suit or appeal does not fail.
28. In the present case, the Additional Chief Revenue Commissioner,
while setting aside the decree of 26.10.2010, proceeded on the
8
Writ Petition (M/S) No. 132 of 2012, Atul Shah and another Vs Addl. Chief Revenue Commissioner, Circuit Court,
Nainital, Uttarakhand and Ors.
Ashish Naithani J.
2025:UHC:7542
assumption that the decree was a nullity in toto because one Madan Lal
Shah had predeceased the judgment and his heirs were not brought on
record. Such an approach runs contrary not only to the settled law
under Order 22 CPC but also to the express statutory mandate of
Section 87. Even if the decree could not be enforced to the benefit of
the deceased Madan Lal Shah, the rights of the surviving co-sharers,
including the Petitioners, could not be extinguished.
29. This Court therefore finds that the impugned order overlooks the
combined operation of Section 87 of the Tenancy Act and Order 22
CPC, both of which safeguard continuity of proceedings and protect the
rights of surviving parties.
30. The other reasoning adopted by the second appellate court
pertains to alleged discrepancies in the measurement of the disputed
land. A careful perusal shows that the differences are marginal and stem
from clerical variations between the pleadings and the decree. The
identity of the holding, its location in Village Damuadunga, and its
succession history are not in dispute. It is well established that such
descriptive errors cannot override the substantive rights flowing from
succession under Section 171. The first appellate court was correct in
recognising the Petitioners' shares notwithstanding such discrepancies.
ORDER
In view of the foregoing discussion and for the reasons recorded
hereinabove, the writ petition is hereby allowed.
The impugned order dated 01.10.2011, passed by the Additional
Chief Revenue Commissioner, Circuit Court, Nainital in Second Appeal
No. 03 of 2010-11, is hereby quashed and set aside.
9
Writ Petition (M/S) No. 132 of 2012, Atul Shah and another Vs Addl. Chief Revenue Commissioner, Circuit Court,
Nainital, Uttarakhand and Ors.
Ashish Naithani J.
2025:UHC:7542
The judgment and decree dated 26.10.2010, rendered by the
Additional Commissioner, Kumaon Mandal, Nainital in Appeal Nos. 98
(2006-07) and 84 (2007-08), are hereby restored.
Consequently, it is declared that the Petitioners, namely Atul
Shah and Aseem Shah, are each entitled to one-third share in the
disputed property, while the remaining one-third share shall vest in the
heirs of late Shri Jawahar Lal Shah.
No order as to costs.
(Ashish Naithani J.)
Dated:26.08.2025
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Writ Petition (M/S) No. 132 of 2012, Atul Shah and another Vs Addl. Chief Revenue Commissioner, Circuit Court,
Nainital, Uttarakhand and Ors.
Ashish Naithani J.
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