Bhaghirathi vs Board Of Revenue & Others..
2013 Latest Caselaw 6207 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

(Judgement reserved on 13.9.2013)
 
(Judgement delivered on 01.10.2013)
 
Court No. - 21
 

 
Case :- MISC. SINGLE No. - 1472 of 1991
 

 
Petitioner :- Bhaghirathi
 
Respondent :- Board Of Revenue & Others..
 
Counsel for Petitioner :- M.A.Khan,K.P.Srivastava,Mohinuddin Khan,S.S.D.Verma
 
Counsel for Respondent :- C.S.C.,D.C. Mukherjee,Prasant Kumar Srivastava,S P Shukla
 

 
Hon'ble Sibghat Ullah Khan,J.

Heard Shri M.A. Khan, learned counsel for the petitioner and Shri D.C. Mukahrjee, learned counsel for contesting respondents. This writ petition was earlier allowed on 28.10.2003 without hearing anyone on behalf of contesting respondents as no-one had appeared on their behalf. Thereafter, a re-hearing/recall application was filed on behalf of contesting respondents which was allowed on 13.9.2013, order dated 28.10.2003 was set aside and arguments on merit of writ petition were heard on the said date.

This writ petition involves an interesting question regarding applicability of section 34(5) of U.P. Land Revenue Act.

Sub-section (1) and (5) of section 34 are quoted below :-

(i) Every person obtaining possession of any land by succession or transfer (other than a succession or transfer which has already been recorded under section 33-A ) shall report such succession or transfer to the Tehsildar of the Tehsil in which the land is situated.

(5) "No Revenue Court shall entertain a suit or application by the person so succeeding or otherwise obtaining possession until such person has made the report required by this section.

This is plaintiff's writ petition.

Copy of the plaint is Annexure 2 to the writ petition. The suit was numbered as case no. 1/4/96 (or 4/96/1) under section 229-B and 209 of U.P.Z.A. & L.R. Act. Bhagirathi vs. Ram Sundar Singh, Nirmal, Gaon Sabha and Stateof U.P.

It was stated in para 1 of the plaint that Birdanti who was Bhoomidhar in possession of the agricultural land in dispute had executed a registered sale-deed of the same in favour of petitioner on 03.3.1965 for consideration of Rs.1000/- and possession was also delivered to him at the time of execution of sale-deed. It was further stated that defendant no.2 Nirmal was wrongly asserting that he was son of Birdanti and had illegally executed some sale-deed in favour of defendant no.1 Ram Sunder Singh. Date, month or year of the sale-deed was not mentioned in the plaint. The only thing which was stated in para 4 was that defendant no.1 was claiming that he was Bhoomidhar on the basis of sale-deed executed by defendant no.2 and on that basis defendant no.1 had got his name entered in the revenue record. In para 6 of the plaint it was stated that after forcibly getting his name entered in the revenue record defendant no.1 in collusion with defendant no. 2 dispossessed the plaintiff in March 1977, hence, plaintiff was entitled to get possession of the land in dispute from defendant no.1 and 2. The prayer sought in the plaint was for declaration to the effect that plaintiff was Bhoomidhar of the agricultural land in dispute and defendants had no concern therewith. Second prayer was for possession against defendant no.1 and 2.

Defendant no.1 and 2 both filed joint written statement, copy of which is Annexure No.3 to the writ petition. In para 1 this fact was denied that Birdanti, son of Ganga was Bhoomidhar of the land in dispute, or that Birdanti had executed the alleged sale-deed dated 03.3.1965 in favour of the plaintiff. It was asserted that defendant no.2 was Sirdar/Bhoomidhar of the land in dispute and had executed sale-deed in favour of defendant no.1. In the additional pleas, it was stated that Birdanti was only Sirdar of the land in dispute, hence, he could not execute the sale-deed and he also died in early part of 1965 and defendant no.2 was his son, hence, after the death of Birdanti he inherited the property and he on 31.12.1977 transferred the same to defendant no.1 through registered sale-deed for Rs.1000/-. In para 11 of the written statement it was specifically stated that the suit was barred by section 34(5) of U.P.Z.A. &L.R. Act.

Assistant Collector First Class/S.D.O. Sultanpur dismissed the suit on 18.9.1981. The S.D.O. held that it was not proved that on 03.3.1965 Birdanti had become Bhoomidhar, that suit had been filed after 14 years, i.e. on 15.10.1979 and no reason was given that why after sale-deed of 1965 suit was not filed. Under issue no.4 it was held that no evidence was given that after the sale-deed dated 03.3.1965 plaintiff filed any application for mutation, hence suit was barred by section 34(5) of U.P.Z.A. & L.R. Act. Against the said judgement and decree plaintiff petitioner filed Appeal no. 173. Additional commissioner Faizabad Division, Faizabad allowed the appeal on 03.12.1984 holding that Shri Birdanti had applied for grant of Bhoomidhari Sanad by depositing 10 times land revenue on 03.3.1965, hence grant of sanad would relate back to 03.3.1965. Regarding bar of section 34(5) of U.P.L.R. Act it was held by the learned Additional Commissioner that plaintiff had filed a copy of proclamation issued in a mutation case on the basis of the sale-deed dated 03.3.1965 executed by Birdanti in favour of Bhagirathi, hence, requirement of section 34(5) of the Act stood fulfilled.

Against judgement any decree passed by Additional Commissioner defendants contesting respondents filed second appeal before the Board of Revenue in the form of Second Appeal no. 37(Z) of 1984-85 Ram Sunder vs. Bhagirathi. Board of Revenue through judgement and decree dated 01.02.1991 allowed the appeal and it was directed that "the plaint stands rejected under order 7 rule 11 C.P.C. The appeal was allowed only on the ground that the suit was barred by section 34(5) of the U.P.L.R. Act. In this regard it was held as follows.

"It appears that the plaintiff somehow by taking the Tehsil officials in collusion got a proforma of the proclamation fictitiously converted into a proclamation in connection with this land but because it does not appear the case number. nor the particulars of the court it is a waste paper. As already observed above the plaintiff did not say in his plaint that he had ever applied for mutation, hence, the aforesaid paper of proclamation is of no help to him. It is amply proved that he did not apply for mutation before filing the present suit."

I fully agree with the above findings.

It is quite strange that plaintiff filed proclamation but not the certified copy of the application. In case plaintiff had applied for mutation, some order must have been passed in the said case, if not on merit then at least of dismissal in default or it might be pending when suit was filed. No evidence regarding decision or stage of the mutation case was filed.

However, the question is whether under the facts and circumstances of the case provision of section 34(5) of the U.P.L.R. Act is attracted?

When the suit was filed petitioner plaintiff was admittedly not in possession. In the plaint he stated that he had been dispossessed in 1977. Accordingly, after dispossession it was not possible for the plaintiff to apply for mutation under section 34(5) of the Act. Suit will be barred under the aforesaid sub-section only if until the date of filing of the suit, plaintiff is entitled to apply for mutation (to report obtaining of possession by transfer) Section 34(5) uses present tense has made the report. Accordingly, if at the time of filing of the suit it is not possible for the plaintiff to file mutation application the bar will not apply. If a contrary view is taken then a purchaser who is delivered possession pursuant to the sale-deed and thereafter within few days of the sale, before he has filed mutation application, he is dispossessed, will be left with no remedy.

Accordingly, the bar of section 34(5) will apply only when till the date of filing of the plaint plaintiff is/ claims to be in possession but he has not filed mutation application. In this regard reference may be made to Ram Charan vs. Board of Revenue 1977 AWC 372.

In the instant case the effect of not filing mutation application for a long time will have to be considered.

The Board of Revenue has not considered the merit of the case. It allowed the appeal only after recording the findings that the suit was barred under section 34(5) of the U.P.L.R.Act.

It is, therefore, held that the suit was not barred under section 34(5) of the Act even though plaintiff petitioner had not filed any mutation application. However, the other points require consideration by the Board of Revenue.

Writ petition is therefore allowed. Judgement and decree passed by the Board of Revenue is set aside and the second appeal is restored to its number. Board of Revenue is required to decide the other points involved in the appeal, treating the suit to be not barred by section 34(5) of the Act.

Order date :- 01.10.2013.

mks