Shiv Singh vs The Board Of Revenue U.P. And ...
2017 Latest Caselaw 4303 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 4
 

 
Case :- MISC. SINGLE No. - 1839 of 1993
 

 
Petitioner :- Shiv Singh
 
Respondent :- The Board Of Revenue U.P. And Others
 
Counsel for Petitioner :- Awadhesh Kumar,Akash Dikshit,S.R. Rizvi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajan Roy,J.

Heard.

Short counter affidavit filed by opposite party no. 3 is taken on record.

This is a writ petition under Article 226 of the Constitution of India challenging the order of the S.D.M. Mohammadi, District Kheri dated 11.04.1988 passed in Suit No. 229-B / 209 of the U.P. Z.A. & L.R. Act and the appellate order dated 20.04.1993 passed by the Additional Commissioner (Judicial), Lucknow Division, Lucknow remanding the matter back to the Consolidation Officer for redetermination of rights in the light of the observations.

The facts of the case, in brief are that the petitioner herein initiated suit proceedings under Section 229-B of the U.P. Z.A. & L.R. Act, 1950, interalia, arraying the State Government and the Gram Sabha as defendants claiming that the original tenure holder of the land in question has died issueless and he being his nephew, was the nearest surviving descendant entitled to succeed to his holding. Opposite party no. 2 to 4 herein who were private respondents, were also arrayed as defendants as they were claiming entitlement to the holding of Laltu, original tenure holder, on the basis of a Will deed which according to the petitioner-plaintiff was forged and fabricated.

Be that as it may, the Consolidation Officer opined that on considering the claim of the respondents before him, which was based on a Will deed dated 31.10.1981, the question of succession was pushed to the background. On an examination of the facts and evidence before him, the Consolidation Officer opined that the Will was surrounded with suspicious circumstances which had not been explained by the defendants no. 1 to 3 (opposite party nos. 2 to 4 herein), therefore, he concluded that the Will was not proved.

Being aggrieved, the said defendants filed an appeal before the Additional Commissioner. The appellate court affirmed the finding of the S.D.M. and rejected the appeal. Being further aggrieved, the opposite party-defendant filed a second appeal under Section 331 before the Board of Revenue. The Board of Revenue opined that irrespective of the Will, the facts reveal that the appellants mother was alleged to be the daughter of the original tenure holder Laltu and the appellants are his maternal grand sons, therefore, he opined that in view of the line of succession prescribed under Section 171 the married daughter being placed at sub- Section (2) (g), as applicable at the relevant time, preceded the respondent-plaintiff's claim as the nephews in the order of preference prescribed therein and it was necessary to record a finding as to whether the mother of the appellant was the daughter of Laltu or not, but this aspect of the matter had been omitted from consideration and merely on this ground, he set aside the orders of the courts below and remanded the matter back to the trial court.

The contention of learned counsel for the petitioner is that the premise on which the Board of Revenue has passed the impugned order, is absolutely perverse as the S.D.M. has recorded a finding based on evidence that the mother of the defendant - appellants (opposite party nos. 2 to 4 herein) was not mentioned as the daughter of Laltu in the extract of the family register which was filed before him and which had not been denied.

Counsel for the petitioner fairly states that there is no need to file rejoinder affidavit.

Sri J.P. Mishra, learned counsel, who appeared for the contesting opposite party no. 3, submits that the reason why the Board of Revenue while deciding the second appeal, remanded the matter back for adjudication as to whether the mother of opposite party no. 3, i.e., the appellant before the Court, was the daughter of Laltu or not, as even if the Will was not found proved, if she was proved to be the daughter, then the petitioner herein, who claim to be the real nephew would be ousted considering the line of succession prescribed in Section 171 of the U.P. Z.A. & L.R. Act, 1950. Furthermore, he says that though the Board of Revenue has not said it in so many words, but the fact is that the issue as to whether Chandra Wati, the mother of the opposite party no. 3, was the daughter of Laltu, original tenure holder or not, was not framed by the trial court, therefore, the question of any evidence having been led and finding recorded is absolutely irrelevant and meaningless. He also submitted that once the notification under Section 4 of the U.P. Consolidation of Holdings Act, 1953 was published in 1994, then this writ petition which was filed in 1993 stood abated, and in view of the subsequent consolidation operations followed by de-notification under Section 5(2) of the Act, 1953, no adjudication can take place in these writ proceedings.

As regards the objections raised by Sri Mishra regarding these proceedings under Article 226 of the Constitution, as having abated on issuance of the notification under Section 4 of the Act, 1953, a Full Bench of this Court had the occasion to consider this very issue in the case of Udai Bhan Singh and others versus Board of Revenue, AIR 1974, Allahabad, 202 and had held that the proceedings under Article 226 do not abate on publication of notification under Section 54 of the Act, 1953. The relevant extract of the judgment is being quoted hereinbelow:

1. " What is the impact of section 5(2) (a) of the U.P. Consolidation of Holdings Act, 1953 on writ petitions or special appeals arising out of them in which judgment or orders passed in suits or proceedings relating to declaration of rights in land covered by a notification under Section 4 of the Consolidation of Holdings Act are impugned?"

12. I am further of the view that if Section 5(2) (a) of the Act is construed so as to be applicable to proceedings under Article 226 of the Constitution the provision would have to be declared ultra vires of the powers of the State Legislature to that ex-tent.

"The State Legislature has not passed any legislation affecting the jurisdiction of this Court. On the other hand, what the State Legislature has done is only to make provision in respect of matters, within its jurisdiction and to declare that a suit instituted in a Court, within its area, has abated. The position, ultimately, is that this Court takes note of a subsequent event viz.the passing of the Amending Act, and the amendment of Section 5, thereby, by the State Legislature, and, on that basis, it holds that the suit, out of which these proceedings arise, stands abated. Therefore, there is the question of the Legislature of the State having passed any legislation affecting the jurisdiction of this Court"

15. For the reasons given above, my answer to the question referred is that Section 5(2)(a) of the Act has no impact on writ petitions or special appeals arising out of them in which judgments or orders passed in suits or proceedings relating to declaration of rights in land covered by a notification under Section 4 of the Act are in challenge and they will remain unaffected by the provision.

18.The answer to the question referred is that Section 5 (2) (a) of the U.P. Consolidation of Holdings Act has no impact on writ petitions or special appeals arising out of them in which judgments or orders passed in suits or proceedings relating to declaration of rights in land covered by a Notification under Section 4 of the said Act are in challenge.

A Coordinate Bench of this Court in case of Ram Pal versus Board of Revenue L.R. (2010) 1298 also had the occasion to consider this issue, and following the Full Bench in Udai Bhan Singh's case (supra) it also held accordingly, as the Full Bench had held, therefore, the contention of the Counsel for the opposite party no. 3 in this regard is not sustainable and is rejected.

In view of the aforesaid judicial precedents, as, these proceedings have not abated and the order of the trial court and order of the appellate court, both, were passed prior to the notification under Section 4, therefore, there has to be an adjudication by this Court in these proceedings. Further contention of Sri Mishra, learned counsel for the respondent is that in the interregnum consolidation proceedings have taken place and the entry in favour of opposite party no. 3 in the basic year khatauni in respect of the Gata in question was never disputed under Section 9-A(2) and the same has attained finality. This contention also cannot be accepted for two reasons. Firstly, prior to the notification under Section 4, this writ petition had been filed, and as per the Full Bench decision, it has not abated, therefore, the validity of the impugned orders and rights, interests and title of the parties in respect of the holding in question have to be adjudicated herein. It is true that the petitioner could have pointed out in the consolidation operations that these proceedings were pending before the High Court, but, he did not do so, but then nor did the opposite party no. 3, who was also under an equal obligation to inform about it to the Consolidation Officer. Thus, the entry in the basic year khatauni continued and have been maintained in the consolidation records by default on the part of the parties, as they did not inform the consolidation authorities about these proceedings. It is not a case where any objection had been filed, either by the petitioner or by the opposite party no. 3 claiming right, title or interest followed by an adjudication by the consolidation courts. As stated above, it is merely by default by the parties that the entry has continued obviously on the basis of the order of the Board of Revenue, passed in second appeal, which is under challenge herein. Therefore, in these circumstances, the said proceedings do not have any bearing on the right, title or interest of the parties herein, as the same have remained pending before this Court, and validly so, in view of the Full Bench decision in Udai Bhan Singh's case, accordingly, the Bar of Section 49 would also not apply, assuming a situation arises in this regard.

As regards the other contention of Sri Mishra, that the trial court had not even framed an issue as to whether the Chandra Wati, the mother of the opposite party no. 3, was the daughter of the original tenure holder or not, the Court finds merit in the same, as, in the absence of any issue being framed, the parties were not aware that this was also an issue directly and substantially involved so as to lead evidence in this regard, therefore, any observation made by the trial court in this scenario cannot be termed as a finding on an issue which was directly and substantially involved.

In these circumstances, the second appellate court, i.e., the Board of Revenue, even though it has not said so in so many words as aforesaid, cannot be said to have erred in passing the order of remand for re-determination of the said issue on the ground that even if the Will has not been found proved the question of succession still remained to be decided. The Board has affirmed the invalidity of the Will being relied upon by the opposite party no. 3, therefore, that aspect is closed now and is not open for consideration, but, the remaining aspects as ordered by it shall have to be considered by the trial court afresh, keeping in the mind the observations made hereinabove.

In view of the above, the impugned order of the second appellate court dated 20.04.1993 does not require any interference. The S.D.M. concerned shall now proceed to decide the matter in terms of the said order, but with expedition, say within one and a half year from the date a certified copy of this order is submitted. The trial court shall frame an issue keeping in mind the aforesaid and proceed accordingly. No unnecessary adjournment shall be granted, and if required, the matter may proceed on day to day basis.

Subject to the above, the writ petition is dismissed.

(Rajan Roy,J.)

Order Date:13.09.2017

Akanksha