SMT. RASOOL BANOversusBOARD OF REVNUE AND OTHERS

                                                 Reserved on 02.09.2026
                                                 Delivered on 14.09.2026
          HIGH COURT OF JUDICATURE AT ALLAHABAD
                     WRIT - B No. - 13260 of 2006

Smt. Rasool Bano
                                                          …..Petitioner(s)

                                Versus

Board of Revenue and others
                                                        …..Respondent(s)


Counsel for Petitioner(s)         : Arvind Srivastava, M.Y.         Khan,
                                    Mohammad Yunus Khan
Counsel for Respondent(s)         : C.S.C., Shahroze Khan



                    HON'BLE ARUN KUMAR, J.

1.    Heard Mr. Mohd. Yunus Khan, learned counsel for the petitioner,
learned Standing Counsel for respondent no.1, and Mr. Mohd. Jafar Yab
Khan, holding brief for Sri Shahroze Khan, learned counsel for
respondent nos. 2 to 4.

2.    The present writ petition has been filed challenging the order of
respondent no.1 dated 31.10.2005, insofar as it set aside the orders dated
30.5.1994 and 6.4.1995 passed by the Naib Tehsildar, Tehsil Naugarh,
District Siddharth Nagar.

3.    The facts giving rise to the present writ petition are that Plot
No.387, measuring 1 bigha 12 biswa 18 biswansi, comprised in Khata
No.273, was recorded in the names of Rahmatullah and Riyasat. After
the death of Riyasat on 2.1.1992, respondent nos. 2 to 4 claimed his 1/2
share on the basis of an unregistered Will executed by him. The names of
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respondent nos. 2 to 4 were recorded on the basis of the Will in the
relevant revenue records.

4.    Rahmatullah, who had a share of 16 biswa 9 biswansi in Plot
No.387, executed a sale deed dated 4.7.1992 in favour of Smt. Mariyam,
the widow of Riyasat. Smt. Mariyam also challenged the succession
claimed by respondent nos. 2 to 4 on the basis of the Will, which was
stayed by the order of the Tehsildar dated 4.1.1994. Smt. Mariyam sold
the area of 16 biswa 9 biswansi purchased from Rahmatullah through a
registered sale deed dated 16.2.1994 in favour of Smt. Rasool Bano, the
original petitioner in the present writ petition. Subsequently, Smt.
Mariyam executed a sale deed dated 6.3.1997 in favour of the sons of
Smt. Rasool Bano (now arrayed as petitioner nos. 1/1, 1/2 and 1/3 in the
present writ petition) in respect of the 1/2 share of Riyasat inherited by
her in Plot No.387. Smt. Rasool Bano moved an application for getting
her name recorded over Plot No.387 in pursuance of the sale deed dated
16.2.1994 executed in her favour by Smt. Mariyam. The Naib Tehsildar,
by his order dated 30.5.1994, allowed the application. Subsequently,
Rahmatullah moved an application for recalling the order dated
30.5.1994. The said application was rejected by the order of the Naib
Tehsildar dated 6.4.1995.

5.    Aggrieved by the aforesaid orders of the Naib Tehsildar,
Rahmatullah filed an appeal before the Deputy District Magistrate,
Naugarh, District Siddharth Nagar, which was allowed by the order
dated 31.3.1997, setting aside the orders dated 30.5.1994 and 6.4.1995.
A further direction was issued that Plot No.387M, area 13 biswa,
transferred by the sale deed dated 16.2.1994, was hit by the provisions of
Section 168-A of the U.P. Zamindari Abolition and Land Reforms Act,
1950, rendering the transfer void and, consequently, the land vested in
the State Government.

6.    Aggrieved by the order of the Deputy District Magistrate dated
31.3.1997, Smt. Rasool Bano, the original petitioner in the writ petition,
filed a revision before the Commissioner, Gorakhpur Region,
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Gorakhpur. The Additional Commissioner (Judicial), Gorakhpur
Division, Gorakhpur, by his order dated 11.9.1997, made a reference to
the Board of Revenue, U.P., Allahabad, respondent no.1, with the
recommendation that the order of the Deputy District Magistrate was
liable to be set aside. The Board of Revenue, by its order dated
31.10.2005, partly approved the reference by setting aside the order
dated 31.3.1997, along with the orders of the Naib Tehsildar dated
6.4.1995 and 30.5.1994, and relegating the matter for being decided
afresh.

7.    Learned counsel for the petitioner contended that, by the
amending U.P. Act No.20 of 1997, which was notified on 18.8.1997, the
provision of Section 218 of the U.P. Land Revenue Act, 1901, was
deleted. Therefore, the Additional Commissioner himself had the
jurisdiction to decide the revision in view of the newly substituted
provision of Section 219 of the Act of 1901. Accordingly, the reference
made by the Additional Commissioner by the order dated 11.9.1997 was
uncalled for. In support of his contention, learned counsel for the
petitioner has relied upon a Coordinate Bench decision of this Court in
the case of Ramesh Chandra Sharma Vs. Board of Revenue, U.P.,
Lucknow and others, 2006(1) CRC 37.

8.    It is further contended by learned counsel for the petitioner that
the Board of Revenue exceeded its jurisdiction in accepting the reference
and setting aside the orders of the Naib Tehsildar along with the order of
the Deputy District Magistrate dated 31.3.1997, even though the said
orders were not the subject matter of challenge in the revision filed
before the Additional Commissioner. The observation of respondent no.1
that the orders of the Naib Tehsildar were unsustainable on the ground
that there was no evidence on record to show that Rahmatullah and,
thereafter, Smt. Mariyam had executed registered sale deeds in respect of
the plot in question, is contrary to the record. The order dated 6.4.1995
specifically records the fact that both the sale deeds were on record. The
aforesaid finding of respondent no.1, which is contrary to the record, and
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the consequent decision to set aside the orders passed by the Naib
Tehsildar on that basis, are arbitrary and manifestly illegal.

9.    Learned counsel for the petitioner further contended that the
provision of Section 168-A of the Act of 1950 has wrongly been applied
to the sale deeds dated 4.7.1992 executed by Rahmatullah and 16.2.1994
executed by Smt. Mariyam. It is contended that, on the date of execution
of the sale deed dated 4.7.1992, Smt. Mariyam was a co-tenure-holder of
Plot No.387, as Riyasat, the brother of Rahmatullah, had died, and the
sale deed of a fragment of the share of the vendor in the plot was not hit
by the provisions of Section 168-A if it was sold in favour of a co-
tenure-holder. It has further been contended that the 1/2 share inherited
by Smt. Mariyam as the widow of Riyasat had been transferred in favour
of petitioner nos. 1/1 to 1/3 by the sale deed dated 6.3.1997. The
challenge to the said sale deeds by respondent nos. 2 to 4 has been
rejected by the dismissal of the suit filed by them.

10.   Per contra, learned counsel appearing on behalf of respondent nos.
2 to 4 has contended that the order of the Board of Revenue dated
31.5.2005 is a remand order; therefore, no interference is warranted by
this Court against the same. It is further contended that late Rahmatullah
had never executed any sale deed in favour of Smt. Mariyam, as her
name was not recorded in the revenue records on that basis. Therefore,
the sale deed executed by Smt. Mariyam in favour of Smt. Rasool Bano
was void and did not transfer any right in her favour. It is further
contended that the appeal filed by Rahmatullah was rightly allowed by
the Deputy District Magistrate by the order dated 31.3.1997. Learned
counsel for respondent nos. 2 to 4 contended that, as the reference made
by the Additional Commissioner to the Board of Revenue accepted the
claim of the petitioner, which was also accepted by the Board of
Revenue, she was not aggrieved by the order dated 31.10.2005. As the
matter has been remanded for being decided afresh, the petitioners still
have an opportunity to raise their claim before the Tehsildar for getting
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their names recorded over the plot in question on the basis of the
respective sale deeds.

11.   I have considered the submissions made by learned counsel for the
parties and perused the records.

12.   From the pleadings and the orders impugned in the present writ
petition, the controversy, insofar as it requires determination in the
present proceedings, principally relates to the competence of the
Additional Commissioner to make the reference dated 11.9.1997 to the
Board of Revenue and, consequently, the competence of the Board of
Revenue to entertain and decide the said reference by the impugned
order dated 31.10.2005.

13.   It is not in dispute that the U.P. Land Laws (Amendment) Act,
1997 (U.P. Act No.20 of 1997) came into force with effect from
18.8.1997. By the said amendment, Section 218 of the U.P. Land
Revenue Act, 1901 was omitted and Section 219 was substituted. Prior
to the amendment, Section 218 empowered the Commissioner,
Additional Commissioner, Collector, Record Officer or Settlement
Officer, upon examining the record of a case decided by a subordinate
officer, to refer the case, along with his opinion, to the Board of Revenue
if he considered that the order or proceeding required to be varied,
cancelled or reversed. The Board was thereafter empowered to pass such
order as it thought fit. After the amendment, however, the power of
revision was conferred directly upon the Board, Commissioner,
Additional Commissioner, Collector, Record Officer and Settlement
Officer under the substituted Section 219, subject to the conditions
contained therein. The statutory scheme was, therefore, materially
altered with effect from 18.8.1997. The amended provisions and the
transitory provision contained in Section 10 of the Amendment Act have
been noticed and considered in detail by the Division Bench in Ravi
Shanker Tripathi v. Board of Revenue, U.P., Lucknow through its
Chairman and others, 2007 (1) ADJ 23.
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14.   The question is no longer res integra. The precise controversy
arising from the amendment of Sections 218 and 219 was considered by
this Court in Shri Ram v. Board of Revenue, U.P., Lucknow and others,
1999 (2) AWC 1718. In that case also, the revision had originally been
instituted under the unamended Section 218, but during its pendency
Section 218 was omitted and Section 219 was substituted with effect
from 18.8.1997. This Court examined Section 10 of the U.P. Land Laws
(Amendment) Act, 1997, which expressly saved only those cases which
had already been referred to the Board under the erstwhile Section 218
and were pending before the Board on the date of commencement of the
Amendment Act. It was consequently held that revisions which were
pending before the Commissioner or Additional Commissioner on
18.8.1997 were not saved by the transitory provision and were required
to be decided under the substituted Section 219.

15.   A contrary view had subsequently been expressed in Kali Shanker
Dwivedi v. Board of Revenue and others, 2000 (18) LCD 1401, where
reliance was placed upon Section 6 of the General Clauses Act and it
was held that a revision pending on the date of the amendment would
continue to be governed by the old provision. The conflict between Kali
Shanker Dwivedi (supra) and Shri Ram (supra) was thereafter
specifically referred for consideration by a Division Bench in Ravi
Shanker Tripathi (supra). The Division Bench examined the unamended
and amended provisions of Sections 218 and 219, the transitory
provision contained in Section 10 of the Amendment Act, the
applicability of Section 6 of the General Clauses Act and the nature of
the revisional jurisdiction conferred by the amended Section 219.

16.   The Division Bench, after considering the aforesaid provisions
and the authorities cited before it, expressly declined to subscribe to the
view taken in Kali Shanker Dwivedi (supra) and agreed with the view
taken in Shri Ram (supra). The Division Bench held that Section 10 of
the Amendment Act saved only those proceedings which had already
been referred to the Board and were pending before the Board on
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18.8.1997. Consequently, a proceeding which was pending before the
Additional Commissioner on that date was required to be dealt with
under the substituted Section 219 and the Additional Commissioner
himself had jurisdiction to decide the revision. The Division Bench
further observed that merely because the proceeding had originally been
instituted under Section 218, that circumstance would not prevent the
competent revisional authority from exercising jurisdiction under the
substituted Section 219.

17.      The aforesaid principle squarely applies to the facts of the
present case. The revision/proceedings in question were admittedly
pending before the Additional Commissioner when U.P. Act No.20 of
1997 came into force on 18.8.1997. It is further an admitted position that
the Additional Commissioner made the reference to the Board only on
11.9.1997, i.e. after Section 218 had already been omitted from the
statute book. Thus, on the date on which the reference was made, the
Additional Commissioner could not derive authority for making such
reference from the erstwhile Section 218. His jurisdiction was thereafter
governed by the substituted Section 219.

18.   Section 10 of the Amendment Act does not assist the respondents.
Its language is specific. It saves cases which had been referred to the
Board under Section 218 as it stood immediately before commencement
of the Amendment Act and were pending before the Board on the date of
commencement. The present case does not fall within that description.
On 18.8.1997, the proceedings were not pending before the Board; they
were pending before the Additional Commissioner. The reference itself
was made thereafter on 11.9.1997. The statutory condition necessary for
attracting the saving provision was, therefore, absent.

19.   The same legal position has subsequently been followed by this
Court in Kamlesh Kumar v. Board of Revenue, Lucknow and others ,
2023 (41) LCD 1125. In that case also, after considering Shri Ram, Kali
Shanker Dwivedi and, in particular, the Division Bench judgment in
Ravi Shanker Tripathi, this Court held that, in view of the transitory
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provision contained in Section 10 of the 1997 Amendment Act, only
proceedings pending before the Board were saved and proceedings
pending before the Commissioner or Additional Commissioner on
18.8.1997 were required to be decided under the amended Section 219.
The order of the Board of Revenue passed on the basis of the contrary
legal position was consequently set aside.

20.   In view of the aforesaid settled position, the order dated 11.9.1997
passed by the Additional Commissioner making a reference to the Board
under the erstwhile Section 218 cannot be sustained. Consequently, the
Board of Revenue could not have proceeded to adjudicate the matter on
the basis of such reference. The impugned order dated 31.10.2005 is,
therefore, liable to be quashed on this ground alone.

21.   Once the impugned order is found unsustainable on the aforesaid
jurisdictional ground, it is neither necessary nor appropriate for this
Court to enter into the other disputed questions raised by the parties.

22.   For the reasons recorded above, this Court is of the considered
opinion that the Additional Commissioner, on 11.9.1997, could not have
made a reference under Section 218 of the U.P. Land Revenue Act, 1901,
since the said provision had already been omitted with effect from
18.8.1997. The proceedings pending before him were required to be
dealt with under the substituted Section 219. Section 10 of the U.P. Land
Laws (Amendment) Act, 1997 saved only those references which had
already been made to and were pending before the Board on 18.8.1997.
The present case does not fall within that saving provision.

23.    Accordingly, the writ petition succeeds and is allowed. The order
dated 31.10.2005 passed by respondent no.1, the Board of Revenue,
U.P., is hereby quashed.

24.   The reference dated 11.9.1997 made by the Additional
Commissioner (Judicial), Gorakhpur Division, Gorakhpur, to the Board
of Revenue under Section 218 of the U.P. Land Revenue Act, 1901, shall
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                            not be treated as a valid reference under the said provision. The revision
                            filed by the petitioner shall be dealt with by the Additional
                            Commissioner (Judicial), Gorakhpur Division, Gorakhpur, in accordance
                            with the law applicable to the proceedings under the substituted Section
                            219 of the Act of 1901.

                            25.         It is clarified that this Court has not expressed any opinion on the
                            genuineness or legal effect of the alleged Will executed by late Riyasat,
                            the succession to his share, the rights acquired by Smt. Mariyam, the
                            validity or legal effect of the sale deeds dated 4.7.1992, 16.2.1994 and
                            6.3.1997, the applicability or effect of Section 168-A of the U.P.
                            Zamindari Abolition and Land Reforms Act, 1950, or the title and
                            substantive rights of any of the parties over the land in dispute. All such
                            questions are left open to be considered by the competent forum in
                            accordance with law.

                            26.         Considering that the proceedings have remained pending for a
                            considerable period, the Additional Commissioner (Judicial), Gorakhpur
                            Division, Gorakhpur, shall endeavour to hear and decide the revision
                            filed by the petitioner expeditiously, subject to the applicable statutory
                            provisions, and without being influenced by any observation made in
                            this judgment touching upon the merits of the rival claims. The entire
                            exercise shall be completed within a period of six months from the date
                            of production of a certified copy of this order.

                            27.         Till the disposal of the revision, the parties shall maintain status
                            quo with regard to the nature and possession of the land in dispute as it
                            exists today.

                            28.         There shall be no order as to costs.


                                                                                           (Arun Kumar,J.)

                            September 14, 2026
                            Anil




Digitally signed by :-
ANIL KUMAR PATEL
High Court of Judicature at Allahabad