Ramesh Chandra And Others vs Ram Narain And Others
2022 Latest Caselaw 9014 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 27.07.2022
 
Delivered on 03.08.2022
 

 
Court No. - 10
 

 
Case :- SECOND APPEAL No. - 1124 of 1997
 

 
Appellant :- Ramesh Chandra And Others
 
Respondent :- Ram Narain And Others
 
Counsel for Appellant :- H.N. Pandey,A.K. Goyal,Naseem Rufi @ Alrafio B.M. Mugaanii, Shikha Singh
 
Counsel for Respondent :- P.K.Jain
 
	And
 
Case :- SECOND APPEAL No. - 1125 of 1997
 
Appellant :- Shri Sadan Kumar And Others
 
Respondent :- Shri Ram Narain And Others
 
Counsel for Appellant :- H.N. Pandey,A.K. Goyal,Naseem Rufi @ Alrafio B.M. Muganii,Shikha Singh
 
Counsel for Respondent :- P.K. Jain
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Ms. Shikha Singh and Ms. Naseem Rufi @ A.B.M. Muganii, learned counsel for the appellants and Sri P.K.Jain, Senior Advocate, assisted by Sri Himanshu Singh, learned counsel for the respondents.

2. These two connected appeals filed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") arise out of common judgment and decree dated 26.8.1997 passed by Vth Additional District Judge, Muzaffarnagar, in Civil Appeal No.91 of 1992 and Civil Appeal No.92 of 1992 and judgment and decree dated 11.8.1992 passed by Civil Judge/ IIIrd Additional Chief Judicial Magistrate, Muzaffarnagar in Original Suit No.547 of 1986 and 548 of 1986, which was decreed by the trial Court.

3. Vide order dated 07.02.2019 both the second appeals were remanded back to this Court by the orders of Hon'ble Supreme Court passed in Civil Appeal No.4587 of 2009. Pursuant to which these appeals were nominated to this Bench on 01.12.2021 by the order of Hon'ble the Chief Justice. The appellants had moved substitution application alongwith delay condonation applications, which were allowed and the legal heirs have been brought on record.

4. The facts, in nutshell, are that the dispute relates to land over which the defendant-appellants are in possession since 1976 and have claimed benefits under Section 123(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "Act of 1950"). The dispute relates to Plot No.2362 situated in Qasba Shamli, District Muzaffarnagar (Now Shamli). One Khajan Singh claimed himself to be holder of the said plot. A notice was issued under Rule 115-C and 115-D of U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as "Rules of 1952") on 17.06.1960, which was contested by him and the said notices were discharged by the order of Tehsildar at that time. Again, in the year 1962, notices were issued by Sub-Divisional Officer, Kairana against Khajan Singh and the same was again dropped.

5. The proceedings under Section 4 of U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (hereinafter referred to as "Act of 1972") was initiated against Khajan Singh, which was also dropped and he was found to be Sirdar. Against the order, no appeal was preferred and his name continued. Thereafter Khajan Singh filed declaratory suit under Section 229-B of Act of 1950 which was dismissed on 14.8.1968, however, on appeal, the suit was decreed on 30.01.1971. One Vaish Degree College, Shamli filed second appeal before Board of Revenue, which was dismissed. It was during the year 1976 that certain members belonging to Scheduled Caste took possession of the land and raised temporary hutments. However, in the year 1979 Khajan Singh was declared bhumidhar with transferable right and entry in the revenue record were made to that extent. After the death of Khajan Singh, names of his grandsons namely Ajendra and Akshay were mutated in revenue records. The contesting plaintiff-respondents purchased the land in dispute through registered sale deed on 10th June, 1984 executed by Ajendra and Akshay, the grandsons of late Khajan Singh. Thereafter, a declaration under Section 143 of Act of 1950 was made.

6. The plaintiff-respondents filed three suits being Original Suit Nos.547 of 1986 and 548 of 1986 against defendant-appellants, who are the members of the Scheduled Caste and Original Suit No.683 of 1986 against the Municipal Board. The said suits were initiated for possession of land in dispute.

7. In original Suit Nos.547 of 1986 and 548 of 1986 the Trial Court framed following issues :

Issues in Case No.547 of 1986

"1. Whether the Plaintiff are the owner of the land in suit?

2. Whether the suit is bad for misjoinder of parties and multifariousness?

3. Whether the suit is barred by Section 27 and 29 of Consolidation Act?

4. Whether the suits is barred by time?

5. Whether the suit is undervalued and Court fee paid is insufficient?

6. Whether the defts. has acquired right of ownership by adverse possession?

7. To what relief plaintiff are entitled ?"

Issues in Suit No.548 of 1986

"1. Whether the Plaintiff is the owner of the land in suit?

2. Whether suit is bad for misjoinder of parties and multifariousness?

3. Whether the suit is barred by Section 27 and 49 of C.H. Act?

4. Whether the suits is barred by time?

5. Whether the suit is undervalued and C.F. paid is insufficient?

6. Whether defts. have acquired right of ownership by adverse possession?

7. Relief ?"

8. During pendency of the above suits, a notice under Section 115-C and 115-D of Rules of 1952 dated 24.5.1989 was issued against the plaintiff -respondents, who challenged the same before Division Bench of this Court through Civil Misc. Writ Petition No.15936 of 1989. The writ Court vide judgment dated 07.09.2007 not only dismissed the writ petition but also upheld the notice issued against plaintiff-respondents. The Court further went on to hold that since the suits, which were filed against defendant-appellants are for relief of recovery of possession and such relief cannot be granted in civil suits against true owners of land in question in whose favour the land in dispute is deemed to have been settled from 1985 by virtue of Section 123(2) of Act of 1950, therefore civil suits of the plaintiff-respondents was rendered infructuous and hence the proceedings of the suits were quashed in exercise of suo motu power under Article 227 of the Constitution of India.

9. During pendency of the writ petition, the suit of plaintiff-respondent was decreed vide judgment dated 11.8.1992. Against the said judgment, the defendant-appellants preferred Civil Appeal No.91 of 1992 and 92 of 1992 before Vth Additional District Judge, Muzaffarnagar, which was heard and decided by common judgment and both the appeals were dismissed on 26.8.1997, hence, the present second appeals.

10. Through the supplementary affidavit, the defendant-appellant has brought before the Court the judgment rendered by Division Bench in Civil Misc. Writ Petition No.15936 of 1989 whereby both the suits filed by the plaintiff-respondent were dismissed.

11. Learned counsel appearing for the appellants submitted that as the writ Court while dealing with the issue in which the notices were under challenge had rendered the suit filed by the plaintiff -respondent to be not maintainable for recovery of possession against the true owners and had quashed the proceedings suo motu exercising power under Article 227 of the Constitution of India, the appeal deserves to be allowed and the judgment and decree of both the Courts below are liable to be set aside.

12. Sri P.K.Jain, Senior Counsel appearing for the plaintiff-respondents very fairly accepted the fact that the Division Bench had adjudicated the matter in depth and had held the proceedings of the suit are not maintainable and had been quashed exercising power under Article 227 of the Constitution of India. He further submitted that once both the suits having been dismissed by the Division Bench of this Court, the appeal filed by the appellants deserves to be allowed.

13. I have heard learned counsel for the parties and perused the material on record.

14. It is a case where both the parties to the contest accept the fact that the dispute in regard to the land has attained finality in view of the fact that the Division Bench of this Court on 07.9.2007 while dismissing the writ petition filed by the plaintiff-respondents challenging the action of the State by issuing notice dated 07.6.1989 under Rule 115-C and 115-D of the Rules of 1952 had not only held the notice to be maintainable under the said provision of the rules but also found that in suit filed by the plaintiff-respondent, relief of recovery of possession cannot be granted, as the civil suit was not maintainable against true owner of land in whose favour the land in dispute is deemed to have been settled from 30th June, 1985 by virtue of Section 123(2) of Act of 1950. The writ Court also held that the proceedings before the Civil Court have been rendered infructuous and the proceedings of the suits were quashed by the Court exercising suo motu power under Article 227 of the Constitution of India. Relevant para 30 of the judgment is extracted hereas under :

"However, with regard to the pendency of the aforesaid civil suits in the Civil court, we are constrained to hold that since the petitioners' suits against the respondents no.3 to 45 are for relief of recovery of possession and such relief cannot be granted in the aforesaid civil suits against true owners of land in question, in whose favour the land in dispute is deemed to have been settled from 30th June 1985 by virtue of Section 123(2) of the Act, therefore, keeping the aforesaid civil suits of the petitioners pending in civil court, which have been rendered infructuous, in our considered opinion, would be sheer abuse of the process of the court, accordingly they must be ended to logical end and as such the proceedings of the aforesaid suit are hereby quashed in exercise of suo motu power under Article 227 of the Constitution of India.

15. Once the writ Court had found that the defendant-appellants were in possession over land in dispute before 30th June, 1985 then by virtue of Section 123(2) of Act of 1950, the land stood settled in favour of the defendant-appellants. According to the writ Court, Section 123(2) of the Act of 1950 has been enacted with non-obstante clause therefore, the same has to be given effect to by the Court despite any other provisions contrary contained in the Act itself. The Court found that in order to effectuate the deeming provision under the statute, the Court would assume all those facts on which the legal fiction has been created by the statute.

16. Once it has been held by this Court that the defendant-appellants, by deeming provision of Section 123(2) of Act of 1950 became the owner of the land on the basis of their possession before 30th June, 1985, both the suits being Suit No.547 of 1986 and 548 of 1986 filed by the plaintiff-respondents having been dismissed exercising power under Article 227 of the Constitution of India by the writ Court in the year 2007, nothing remains to be adjudicated in the present second appeal, and both the judgment and decree passed by both the Courts below during pendency of the writ petition are liable to be set aside and the second appeals are liable to be allowed.

17. Considering the facts and circumstances of the case, this Court finds that once the suit of the plaintiff-respondent having been dismissed by the Division Bench of this Court exercising suo motu power under Article 227 of the Constitution of India on 07.9.2007, nothing remains to be considered in the present appeals.

18. Both the second appeals are allowed and the judgment and decree dated 26.8.1997 passed by Vth Additional District Judge, Muzaffarnagar, in Civil Appeal No.91 of 1992 and Civil Appeal No.92 of 1992 and judgment and decree dated 11.8.1992 passed by Civil Judge/ IIIrd Additional Chief Judicial Magistrate, Muzaffarnagar in Original Suit No.547 of 1986 and 548 of 1986, are hereby set aside.

Order Date :- 03.8.2022

Kushal