Allahabad High Court
Ram Pal Singh vs Board Of Revenue on 1 October, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Judgment reserved on 19.09.2013
Judgment delivered on 01.10.2013
Court No. - 21
Case :- MISC. SINGLE No. - 1205 of 1993
Petitioner :- Ram Pal Singh
Respondent :- Board Of Revenue
Counsel for Petitioner :- U.S.Sahai
Counsel for Respondent :- A.K.Sinha,Riyaz Ahmad,S C Srivastava
Hon'ble Sibghat Ullah Khan,J.
At the time of hearing no one appeared for contesting respondent no.4, Gulab Singh. Accordingly only the arguments of Sri U.S.Sahai, learned counsel for the petitioner were heard.
This writ petition arises out of Suit Nos.119/77/273/78, Gulab Singh vs. Soveran Singh and others instituted by respondent no.4 Gulab Singh under Section 229-B of U.P.Z.A.&L.R. Act before SDO/Assistant Collector, First Class, Sitapur. Plaintiff respondent no.4, Gulab Singh claimed that he was son of Chhote Lal Singh who was real brother of Soveran Singh defendant no.1 in the suit. Original petitioner Ram Pal Singh (since deceased and survived by legal representatives) was son of Soveran Singh and defendant no.2 in the suit. Plaintiff claimed that over the agricultural land in dispute included in Khata Nos. 266, 241 and 67 was ancestoral property and it was entered in the name of Soveran Singh alone wrongly and plaintiff was also co-sharer there of as it was ancestoral property (plaintiff being nephew of Soveran Singh defendant no.1). There was also a third brother, Balvan Singh who died issue less. Plaintiff further asserted that he was born on 17.3.1947 and his father Chhote Lal had died in 1955. The defendants nos. 1 and 2 contended that firstly plaintiff was not son of that Chhote Lal who was real brother of Soveran Singh and secondly during consolidation operations plaintiff was major and as he did not raise dispute at that time hence claim was barred by Section 49 of U.P. Consolidation of Holdings Act.
The SDO decided both the points in favour of the defendants and dismissed the suit on 19.5.1978. Against the said decree plaintiff respondent no.4 filed Appeal No. 359 of 1977-78. Additional Commissioner, Lucknow Division, Lucknow allowed the appeal on 3.4.1979, and set aside the judgment and decree passed by the trial court. However, the suit was decreed by the Additional Commissioner only for 1/3rd share holding that the third brother, Balvan Singh had died after the death of Chhote Lal hence his share was inherited by Soveran Singh. Against the decree of the Additional Commissioner dated 3.4.1979 petitioner filed Second Appeal No. 138 of 1978-79. Board of Revenue, Allahabad dismissed the appeal on 21.01.1992 hence this writ petition.
The trial court had held that when consolidation was continuing, plaintiff had become major. This finding was recorded on the basis of voter list of 1974 showing the age of the plaintiff to be 33 years. Accordingly trial court held that plaintiff was born in 1941 hence in 1959 he became major and at that time consolidation was continuing. Additional Commissioner and Board of Revenue held that not much reliance could be placed upon the age mentioned in voter list. They held that according to the date of birth mentioned in the birth register and other evidence it was proved that plaintiff was minor during consolidation proceedings. They also held that consolidation appeared to have taken place around 1960. However they also mentioned that no record relating to Section 4(2) or Section 52 of U.P. Consolidation of Holdings Act notifications was filed. They also held that plaintiff was son Chhote who was real brother of Soveran.
Regarding limitation lower appellate court and Board of Revenue held that it appeared that defendant no.1 from his conduct assured the plaintiff that property would be given to him hence suit was filed quite late. The suit was filed on 31.1.1974. Even if plaintiff's version regarding his age is taken to be correct still in 1974 he would be 27 years of age. The delay of 9 years after becoming major was not explained. The finding that it appeared that assurance was given by Soveran Singh that property would be given to the plaintiff is firstly extremely vague secondly it is not based on any evidence and thirdly it would not make any difference to the limitation.
The most important aspect of the matter is that the plaintiff in para 13 of the plaint (copy of which was supplied during arguments) stated that defendant no. 1, Soveran Singh had about seven years before (1966-67) executed agreement for sale in respect of 10 bigha of Plot No. 309 in favour of plaintiff which was part of the property in dispute and defendant No.2 (son of defendant No.1) also executed a sale deed of two and a half bigha of agricultural land. One more sale deed was executed in 1973 by defendant No.1 of some agricultural land in favour of the plaintiff. Both the sale deeds are Annexures-4 & 5 to the writ petition. Both the sale deeds were relied upon by Additional Commissioner & Board of Revenue for the finding that Gulab Singh was son of Chhote Lal as in the sale deed he was described as such.
The two sale deeds are dated 29.8.1966 and 23.4.1973. When plaintiff purchased part of the property in dispute from the original defendant no.1 and defendant No.2 he was estopped from asserting that defendant no.1 was not the exclusive Bhumidhar. More over when in the year 1966 agreement and sale deed had been obtained by the plaintiff, it proved that he was aware of the position that in the revenue record names of Soveran Singh and his son Ram Pal Singh were entered and his name was not entered. Accordingly the suit was clearly barred by time having been filed after 9 years therefrom. Plaintiff had asserted in paragraph 13 of the plaint that about 7 years before defendant Soveran Singh had executed an agreement of sale in his favour of 10 bighas which was his share, however in 1973 he refused to execute the sale deed. This assertion clearly disproved the case of the plaintiff that he was co-sharer. In case, he had been co-sharer, there was no sense in getting agreement for sale executed. If pursuant to the agreement sale deed was not executed then plaintiff could have filed suit for specific performance before the Civil Court.
More over it was not stated that plaintiff had filed any application for mutation of his name. Accordingly suit was also barred by Section 34(5) of U.P.L.R. Act. However this point was not taken by the petitioner before the courts below.
Writ petition is accordingly allowed. Judgment and decree passed by the Board of Revenue and Additional Commissioner are set aside. Judgment and decree passed by the trial court/SDO dismissing the suit is restored.
Order Date :- 01.10.2013
NLY
