Allahabad High Court

Mathura Prasad Singh vs State Of U.P. & Others on 19 November, 2013

Bench: Sibghat Ullah Khan




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R. 
 
Judgment reserved on 07.11.2013.
 
Date of delivery of judgment 19.11.2013.
 
Court No. - 21
 

 
Case :- MISC. SINGLE No. - 1685 of 1995
 

 
Petitioner :- Mathura Prasad Singh
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Shripal Singh,Pashu Pati Pratap Singh
 
Counsel for Respondent :- C.S.C.,R.N. Gupta
 

 
Hon'ble Sibghat Ullah Khan,J.

Heard Shri P.P. Singh, learned counsel for the petitioner and learned standing counsel for the respondents.

According to the learned counsel for the petitioner, original petitioner since deceased and survived by legal representative filed suit for partition against his co sharers in respect of the agricultural land of which he and his co sharers/ contesting defendants in the partition suit were Bhumidhars and recorded as such in the revenue records. The said plots were 161 area 3 bigha 16 biswa, 161 area 7 biswa, 188 area 2 bigha 8 biswa, 206 area 1 bigha and 298 area 3 bigha 7 biswa and 10 biswansi. In the said suit Gaon Sbaha was formal party. It filed written statement admitting the case of the plaintiff.

However the suit was filed under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act only. No prayer for partition was made in the plaint. In the written statement filed by Pradhan Gaon Sabha possession of the parties was admitted. The suit was decreed on the basis of compromise dated 09.04.1969. Said order was passed in case No. 243 by S.D.O. Kadipur, District-Sultanpur, Mathura Prasad Vs. Banshidhar Singh and others. The private defendants in the said suit never objected to the compromise.

Thereafter Gaon Sabha filed objections before Consolidation officer in the form of case No. 2609 under Section 9-A (2) of U.P. C.H. Act contenting that the property of the suit belonged to the Gaon Sabha. The objections were rejected on 13.07.1998 by Consolidation Officer final record, Sultanpur holding that it could not set aside the earlier compromise decree. Appeal No. 123/344 was filed against the said order, which was dismissed on 02.06.1982. Thereafter revision no. 1050/1467 was filed which was dismissed on 08.03.1983 by Deputy Director of consolidation, Sultanpur on 17.09.1986. Thereafter Pradhan filed restoration application before the S.D.O. On 29.09.1986 seeking to recall the order dated 09.04.1969 decreeing the suit on compromise. The case taken in the said restoration application was that the suit was only in relation to plot no. 165 area 3 bigha, 15 biswa one biswansi and plot no. 206 area one bigha, however, subsequently plot no. 161 area 7 Biswa and plot no. 188 area 2 bigha 15 biswa one biswansi and plot no. 298 area 2 bigha 15 biswa 2 biswansi were added in the plaint and the decree. Said application was allowed by the S.D.O. Kadipur, District-Sultanpur on 23.07.1990 (the order was passed in case no. 243.) Against the said order Revision no. 590 was filed by the petitioner. The said revision was decided on 30.09.1993 by Additional Commissioner Judicial, Faizabad division Faizabad and matter was referred to the Board of Revenue with the recommendation to allow the revision. Before the board of revenue Allahabad, the matter was registered as Reference no. 12/93-94 Mathura Prasad vs. Gaon Sabha. The Board of Revenue through order dated 21.04.1995 rejected the reference and up held the order of S.D.O. Dated 23.07.1990, through which compromise decree dated 09.04.1969 had been set aside and the suit had been restored.

By reading the plaint it is quite clear that the suit was not for partition it was only for declaration. It was filed only under section 229-B of U.P. Zamindari Abolition and Land Reforms Act. If the names of all the three brothers i.e. plaintiff and defendant nos. 1 and 2 were continuing in the revenue record then there was absolutely no necessity to file suit for declaration. In such eventuality only suit for partition could be filed. It was stated in para 2 of the said plaint that defendant no. 1 and 2 had threatened that in collusion with defendant nos. 3 and 4 i.e. Gaon Sabha and State, they would establish their right which was the cause of action for filing of the suit. It has not been explained that how two of the co-sharers with the collusion of the Gaon Sabha and State could establish their exclusive right over the joint land.

Accordingly, it is quite clear that either initially only three plots were shown in the plaint and the other three plots were subsequently added or if all these plots were initially there is the plaint then the Gram Pradhan in collusion with the plaintiff and defendants nos 1 and 2 filed the written statement supporting their case in respect of the plots which according to the restoration application were Gaon Sabha plots.

In the photo state copy of the decree there appears to be overwriting on plot No. 161 area 3 bigha 16 biswa and Plot No. 298 area 3 bigha 17 biswa 10 biswanshi.

In para 2 of the writ petition it has categorically been admitted that plot nos. 161, 188 and 298 were recoded as Gaon Sabha land but petitioner and his brothers were in possession. This fact was no where stated in the plaint. Accordingly, there was absolutely no question of decreeing the suit in respect of gaon sabha plots on the basis of compromise to which Gaon Sabha, and State were not signatories.

However, I find that the impugned order is erroneous in one regard. In the restoration application dated 29.09.1986 it was categorically mentioned that as far as plot no. 161 area 3 bigha, 15 biswa one biswansi, plot no. 206 area 1 bigha was concerned, petitioner and his brothers were recorded tenure holders and the suit was in respect of those plots. The grievance was made in respect of plot no. 161 area 7 biswa, plot no. 188 area 2 bigha 15 biswa one biswansi and plot no. 298 area 2 bigha 11 biswa 2 biswanshi which were recorded as Gaon Sabha property when the said suit was filed.

Accordingly compromise decree could be set aside only in respect of the plots which were recorded as Gaon Sabha property at the time of filing of suit and passing of compromise decree.

The arguments of learned counsel for the petitioner that all the 5 plots were recorded as Bhumidhari of plaintiff and his brothers defendant nos. 1 and 2 is utterly erroneous and against the own pleading of the petitioner i.e. para 2 of the writ petition which is being quoted below:

" That out of the 5 plots mentioned above, plot no. 161 (M)-3 bigha, 16 bishwa and plot no. 206-1 bigha were already in the tenancy of the petitioner and his two brothers mentioned above and their names were recorded a Bhumidhar. Plot Nos. 161 (M)-7 bishwa and 188-2 bigha, 18 bishwa and 298-3 bigha, 12 bishwa, 10 bishwansi were recorded as Gaon sabha land but the fact was that the petitioner and his two brothers were in possession of these plots much before the abolition of the zamindari as stated above."

The other argument that S.D.O. in the impugned order dated 23.07.1990 did not record the finding that the three plots alleged by the Pradhan/Gaon Sabha to belong to the Gaon Sabha, when the suit was filed, were recorded as such. In the impugned orders it is mentioned that in the revenue records plot no. 188,161 and 298 were entered as pond and Banjar when the suit was filed.

As far as the decisions by the consolidation authorities are concerned, none of the consolidation courts (C.O., S.O.C. and D.D.C.) said anything on merit. They only held that decree passed by S.D.O. could not be questioned by them.

Accordingly the writ petition is allowed in part. The impugned orders are set aside only in respect of plot nos. 161 area 3 bigha, 15 biswa, one biswansi plot no. 206 area one bigha. In respect of these 2 plots the compromise decree shall stand. However, in respect of other 3 plots i.e. plot no. 161 area 7 biswa, 188 area 2 bigha, 15 biswa one biswansi and plot no. 298 area 2 bigha, 15 biswa 2 biswansi, impugned orders are affirmed. Let the suit in respect of these plots be decided afresh. If it is again found that at the time of filing of the suit these plots were recorded as Gaon Sabha property then suit in respect of these plots shall be dismissed.

Writ petition is accordingly partly allowed.