Uttarakhand High Court
Narendra Singh And Another … … vs Meghraj And Others on 29 July, 2025
2025:UHC:6607
Reserved on : 06.06.2025
Delivered on : 29.07.2025
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 251 of 2009
Narendra Singh and Another ... Petitioners
Versus
Meghraj and others ... Respondents
With
Writ Petition (M/S) 252 of 2009
Narendra Singh and Another ... Petitioners
Versus
Meghraj and others ... Respondents
Presence:
Mr. Ramesh Chandra Saini, learned counsel for the Petitioner No. 1.
Mr. M. S. Tyagi, learned Senior Advocate assisted by Mr. Nikhil Singhal and
Mr. Chandra Prakash for the Petitioner No. 2.
Mr. Chandra Shekhar, learned counsel assisted by Mr. Sachin Panwar and Mr.
Prashant Shekhar, learned counsel for the Respondent No. 1.
Hon'ble Ashish Naithani, J.
1. The present dispute pertains to agricultural land situated at Mauja
Saliyar Salhapur, Pargana Bhagwanpur, Tehsil Roorkee, District
Haridwar. Upon the demise of Shri Deshraj, the recorded co-owners of
the property, as reflected in the revenue records, became his legal heirs
namely, petitioner No. 1, Narendra Singh; respondent No. 1, Meghraj;
and respondent No. 2, Ravindra Singh. The property continued to be
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jointly recorded in their names, without any demarcation or partition by
metes and bounds.
2. Narendra Singh, claiming that he and Ravindra Singh each had a 1/4th
share and that Meghraj had a 1/2 share, filed a partition suit under
Section 176 of the U.P. Zamindari Abolition and Land Reforms Act.
The partition suit in the present case was instituted under Section 176
of the U.P. Zamindari Abolition and Land Reforms Act, 1950 which
provides that a bhumidar or asami having a share in a holding may sue
for the division of his share. Section 176 confers a statutory right upon
co-tenure holders to demand partition by metes and bounds, regardless
of whether the property has been physically divided previously. The
partition is mandatory if sought, unless prohibited by any specific
statutory bar or legal impediment
3. Meghraj, in response, contended that an oral partition had already taken
place in 1972, whereby khasra no. 332 fell to his exclusive share and
other plots to the share of Deshraj. Despite this claim, it is admitted by
Meghraj himself during cross-examination that the land continues to be
jointly recorded and that such joint entry had never been objected to.
4. The Trial Court, by preliminary decree dated 23.09.2003, held that
khasra no. 332 belonged exclusively to Meghraj based on possession,
even in the absence of a counterclaim. The Court, however, failed to
adjudicate on the remaining 9 out of 10 issues framed.
5. Narendra Singh preferred ZA Appeal Nos. 03/2003-04 and 11/2003-04
before the Commissioner, Garhwal Mandal, who allowed the appeals
by order dated 04.04.2006. The Commissioner observed that the Trial
Court's decision was contrary to evidence and had improperly ignored
the joint ownership reflected in revenue records. The matter was
remanded for a fresh decision.
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6. Meghraj challenged the remand by filing Second Appeals (Nos. 56 and
57 of 2005-06), which were allowed by the Additional Chief Revenue
Commissioner on 21.01.2009. The Second Appellate Authority set
aside the remand order without framing substantial questions of law.
7. Narendra Singh filed Writ Petitions (WPMS Nos. 251/2009 and
252/2009) under Article 227, challenging the Second Appellate order.
While the writ petitions were pending, Narendra Singh executed a
registered sale deed on 30.06.2015 in favour of petitioner no.2 (and
another purchaser). Ravindra Singh also executed an agreement to sell
on 11.02.2020. A civil suit seeking specific performance of the said
agreement is pending before the Civil Judge, Senior Division, Roorkee.
8. On 12.03.2013, the High Court allowed the writ petitions and
remanded the matter back to the Additional Chief Revenue
Commissioner (now Board of Revenue).
9. Review of this order was rejected on 18.10.2019. Thereafter, Meghraj's
legal heirs filed Special Leave Petitions (SLP Nos. 3219-3222 of 2020)
before the Hon'ble Supreme Court.
10. By judgment dated 21.11.2023, the Supreme Court allowed the SLPs in
part, set aside the High Court's orders dated 12.03.2013 and
18.10.2019, and remitted the matter back to the High Court for fresh
adjudication of the writ petitions within six weeks of receipt of the
order.
11. Heard learned counsel for the parties and perused the records.
12. The learned counsel for the Petitioners contended that the entire
property remains jointly recorded in the names of the parties and has
not been partitioned by metes and bounds. They argue that the Trial
Court erroneously treated Meghraj's possession as conclusive
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ownership of khasra No. 332 without any counterclaim or proof of
exclusive title.
13. Learned counsel emphasized that Meghraj himself admitted during
cross-examination that the land was jointly recorded and that he never
objected to such recording. The Commissioner was therefore justified
in setting aside the Trial Court's order and remanding the matter for
fresh adjudication.
14. It was further contended that the Second Appellate Authority acted
beyond its jurisdiction in entertaining a second appeal against a remand
order, especially without framing any substantial question of law. The
impugned order is assailed for disturbing findings of fact without
proper reasoning.
15. Learned counsel appearing on behalf of Petitioner No.2 claims to be the
bona fide purchaser of Narendra Singh's share through a registered sale
deed dated 30.06.2015. It is submitted that after this transfer, Petitioner
No. 1 has no subsisting right or interest in the property, and any
subsequent collusion between Petitioner No. 1 and Respondent No. 1 is
an act of fraud on the Court.
16. It was also argued on behalf of the Petitioners that, as the land remains
undivided, any assertion of exclusive ownership by Meghraj is
untenable in law, and that the possession of one co-sharer is possession
on behalf of all co-sharers.
17. Learned counsel appearing on behalf of respondent Meghraj submits
that the respondent has remained in uninterrupted possession of the
land in question ever since the alleged oral partition, and that the Trial
Court rightly took this fact into account while passing the preliminary
decree.
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18. Learned counsel asserts that the Commissioner's remand order was
erroneous as the Trial Court had already considered the material
evidence. The Second Appellate Authority was correct in setting aside
the remand.
19. It is further contended that the sale deeds and agreements executed by
Narendra Singh and Ravindra Singh during the pendency of litigation
are hit by the doctrine of lis pendens and do not confer valid title.
20. Lastly, it is submitted that the Supreme Court's order remanding the
matter must be respected, and the High Court should now
independently decide the writ petitions based on facts and law.
21. Upon a meticulous examination of the record and appreciation of the
arguments advanced, this Court is constrained to observe that the
Second Appellate Authority acted in patent breach of jurisdictional
limits by entertaining and allowing second appeals against a remand
order without framing or addressing any substantial question of law.
22. It is a well-settled principle of law that the scope of a second appeal,
whether under Section 100 CPC or its equivalent principles in revenue
adjudication, is confined to cases involving a substantial question of
law, not merely a re-appreciation of factual disputes.
23. This restriction is not merely procedural but statutorily embedded in
Section 331(4) of the U.P. Zamindari Abolition and Land Reforms Act,
1950, which explicitly provides that a second appeal shall lie only if the
case involves a substantial question of law. The provision mirrors the
mandate under Section 100 of the Code of Civil Procedure, 1908. In the
case at hand, no such question was formulated, nor did the Second
Appellate Authority make any finding that the remand order was
perverse, contrary to law, or based on misapplication of settled
principles.
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24. The Appellate Commissioner, by his detailed and well-reasoned order
dated 04.04.2006, rightly found that the Trial Court had committed an
error in deciding only one issue out of the ten framed. The correctness
of the remand order is supported by the principles codified under Order
41, Rule 25 of the CPC, which enables an appellate court to frame and
refer issues for trial where the lower court has failed to determine them.
25. This procedural safeguard ensures that no party suffers prejudice due to
incomplete adjudication. The Commissioner, exercising equivalent
powers in revenue appeals, was justified in directing a fresh decision on
all framed issues to secure complete and fair adjudication. This
procedural lapse was not merely technical, but one that went to the root
of fair adjudication.
26. The Trial Court's preliminary decree was passed solely on the basis of
possession, and not on title, despite the admitted fact that the property
continued to be jointly recorded in the names of all co-sharers. The oral
partition of 1972, as alleged by Respondent Meghraj, was not
substantiated by any documentary evidence, and no declaratory relief
was ever sought in that regard.
27. Further, this Court finds that the continued joint entries in the revenue
records, coupled with the absence of any mutation or lawful partition,
fortify the case of the petitioners that no partition by metes and bounds
has ever validly taken place.
28. The reliance placed by respondent Meghraj on possession and irrigation
records may, at best, demonstrate usage of the land. However, in law,
mere possession by one co-owner does not extinguish the title of other
co-owners unless a case of ouster is specifically pleaded and duly
proved, which, in the present case, is conspicuously absent.
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29. The sale deed dated 30.06.2015, executed by petitioner no.1, and the
agreement to sell executed by respondent no.2, further reflects the
recognition of undivided co-ownership status and were based on the
respective shares as claimed in the partition suit.
30. These transactions, although executed during litigation, are protected
under law unless it is shown that they defeated the ends of justice or
contravened any specific order which is not the case here. The doctrine
of lis pendens does not ipso facto invalidate such a transfer but makes it
subject to the outcome of the pending litigation.
31. Section 52 of the Transfer of Property Act, 1882, encapsulates the
doctrine of lis pendens, which mandates that any transfer of immovable
property during the pendency of a suit involving rights to that property
shall remain subject to the outcome of the suit. Such a transfer is
neither void nor illegal but remains subordinate to the final
adjudication. It merely operates as a caveat, indicating that the rights of
the transferee shall remain subject to the decree that may ultimately be
passed in the pending litigation.
32. This Court is not oblivious to the fact that the matter has remained
pending for over two decades, marked by repeated reversals of findings
and inconsistent procedural decisions. However, the rule of law
demands that the substantive rights of the parties must be adjudicated
fairly and in strict accordance with law, even if that necessitates a
remand.
33. Where the Trial Court has failed to adjudicate on essential issues and
passed a decree without addressing the pleadings and evidence in their
entirety, a remand is not only justified but necessary to uphold
procedural justice.
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34. The Court further observes that the fundamental error in the judgment
dated 21.01.2009, passed by the Second Appellate Authority, lies in its
failure to adhere to the well-settled requirement of formulating,
identifying, and addressing a substantial question of law.
35. It is not sufficient for a second appellate forum to merely re-evaluate
findings of fact or substitute its own conclusions for those of the first
appellate authority.
36. The legislative mandate, even though Section 100 of the Code of Civil
Procedure is not directly applicable to revenue appeals, nevertheless
permeates adjudication in quasi-judicial forums through the
requirement of necessary judicial discipline.
37. In the present case, no substantial question of law was either framed or
recorded in the body of the appellate order, nor was any perversity in
the Commissioner's remand order ever demonstrated.
38. This omission is not a mere procedural irregularity; it is a jurisdictional
failing. A second appellate authority cannot bypass the factual matrix
meticulously considered by the Commissioner, especially when the
remand was founded on the gross omission by the Trial Court to
adjudicate on nine out of ten framed issues. The restoration of a decree
tainted by such omission only exacerbates injustice and results in a
miscarriage of the due process contemplated under the U.P. Zamindari
Abolition and Land Reforms Act.
39. It is also imperative to record that partition suits, by their very nature,
require a careful balancing of possession, title, historical revenue
records, and the conduct of the parties.
40. Where property is jointly recorded and partition is sought under
statutory provisions, any unilateral allocation of a valuable khasra, such
as Khasra No. 332 in the present case, must be tested against evidence
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of partition, family settlement, or court adjudication, none of which
exist in the respondent's favour.
41. This Court also notes with concern that the pendency of these
proceedings for nearly two decades has resulted in prolonged litigation,
avoidable expense, and considerable uncertainty for all parties,
including transferees who have acquired rights under registered
instruments. Judicial adjudication cannot be permitted to remain
hostage to defective preliminary decrees and unwarranted procedural
complications.
42. The appropriate course of action, as rightly adopted by the
Commissioner, was to remand the matter for comprehensive and
holistic adjudication, encompassing issues relating to possession,
valuation, and the respective shares of the parties.
43. In conclusion, this Court is of the considered view that the Second
Appellate Authority lacked jurisdiction to entertain the second appeal
against a well-reasoned remand order. Its action in restoring the
defective preliminary and final decrees amounts to a serious legal
impropriety. The principles of natural justice, fair adjudication, and
substantive justice mandate that the matter be remanded to the Trial
Court, as directed initially, for adjudication on the merits based on
proper evidence, including claims pertaining to partition, possession,
and shareholding.
ORDER
In view of the foregoing discussion and the conclusions drawn
hereinabove, this Court finds that the judgment and order dated
21.01.2009, passed by the Additional Chief Revenue Commissioner,
Garhwal Mandal, Dehradun, in Second Appeal Nos. 56 and 57 of
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2005-06, cannot be sustained in law. Accordingly, the said order is
hereby set aside.
Consequently, the order dated 04.04.2006, passed by the
Commissioner, Garhwal Mandal, in ZA Appeal Nos. 03/2003-04 and
11/2003-04, whereby the matter was remanded to the Trial Court for
fresh adjudication of all issues, is restored.
The Trial Court (Assistant Collector, First Class, Roorkee) shall
now proceed to decide the partition suit afresh in accordance with law,
after framing and adjudicating all the issues raised in the pleadings,
including those relating to possession, the shares of the parties, the
claim of prior oral partition, and the effect of subsequent transfers.
Accordingly, the Writ Petitions (M/S) No. 251 of 2009 and (M/S)
252 of 2009 stand allowed in the above terms.
No order as to costs.
Ashish Naithani, J.
SHIKSHA BINJOLA Digitally signed by SHIKSHA BINJOLA
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D7FF0A9BED00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA
Date: 2025.07.29 17:39:32 +05’30’
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