Gayadeen vs Board Of Revenue And Others
2022 Latest Caselaw 20951 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

			                  Court No. 52
 
				         WRIT - B No. - 39767 of 1998
 

 
Petitioners :- 			Gayadeen
 
Respondents :- 			Board of Revenue and Others
 
Counsel for Petitioners:- 	Kamlesh Kumar Yadav
 
Counsel for Respondent :- 	C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Kamlesh Kumar Yadav, learned counsel for the petitioner. Nobody appeared on behalf of the contesting respondents even in the revised list.

2. Brief facts of the case are that petitioner's uncle Ram Dayal had no issue and was having agricultural land from his maternal grandfather, the particulars of plots are plot nos. 228, 388, 395, 422, 423, 437, 480, 482, 484, 501 & 506. Ram Dayal, uncle of the petitioner had given his agricultural holding to the petitioner. Petitioner was cultivating the same as Sirdar for considerable long period. Petitioner had deposited 10 time of the land revenue and had acquired bhumidhar sanad. The name of the petitioner was recorded in 1360 fasli, 1382 fasli, 1383 fasli and the possession of the petitioner was exclusive. Respondent no. 2 (Ram Laut) who is the brother of the petitioner filed a suit under Section 229-B of the U.P. Z.A. & L.R. Act in respect to the disputed plot, claiming right of co-tenure holder in respect to the disputed plots. The issues were framed before the trial court and the parties have adduced oral and documentary evidence in support of the their case. The trial court, after considering the oral and documentary evidence on record, recorded a finding of fact that plaintiff's right, title and possession is not proved in respect to the disputed plots, as such, plaintiff is not entitled to the declaration claimed in the suit, the suit was, accordingly, dismissed vide judgment and decree dated 19.11.1985. Against the judgment and decree dated 19.11.1985, respondent no.2 (Ram Laut) filed an appeal before the Commissioner, which was heard by the Additional Commissioner, Faizabad Division, Faizabad and the appeal was dismissed by the judgment dated 22.6.1994, affirming the judgment and decree of the trial court, holding that plaintiff has failed to prove that the disputed plot is ancestral property of the plaintiff. Against the judgment and decree of the court of Commissioner dated 22.6.1994, respondent no.2 filed a second appeal before the Board of Revenue which was allowed by the Board of Revenue vide judgment dated 25.7.1996, the review-application filed by petitioner against the judgment dated 25.7.1996 was dismissed vide order dated 29.9.1998, hence this writ petition.

3. This Court while entertaining the writ petition, had passed an interim order dated 22.4.1999, which reads as under:-

"Sri S.K. Vidyarthi filed vakalatnama on behalf of petitioners. His name be shown as counsel for petitioner.

Petitioner is directed to take steps to serve the respondent no.2 within 3 weeks.

List for admission in second week of August, 1999.

Until further orders of the Court, operation of the impugned orders dated 25.7.1996 and 29.9.1998 shall remain stayed."

4. In pursuance of the order dated 22.4.1999, the contesting respondent has put in appearance and has filed his counter affidavit. The petitioner has filed his rejoinder affidavit also.

5. Counsel for the petitioner submitted that a suit under Section 229-B filed by respondent no.2 has been dismissed by the trial court, recording finding of fact that the plaintiff has failed to prove his title in respect to the plot in dispute, as such, the suit was dismissed by the trial court and the decree of the trial court was affirmed in appeal by the Commissioner but the Board of Revenue has exceeded his second appellate jurisdiction by substituting his own finding, without reversing the finding of fact recorded by the courts below. He further submitted that Board of Revenue by allowing the second appeal, has decreed the plaintiff's suit also which cannot be done while exercising the second appellate jurisdiction in place of remanding the matter for reconsideration before the trial court or the first appellate court. He placed reliance on a decision of this Court reported in1985 R.D. 93, Sharda Devi Vs. Board of Revenue Allahabad & Others on the point of second appellate jurisdiction of Board of Revenue, relevant paragraph of which are as under:-

"24. In the aforesaid provision the emphasis by the Legislature is on all the interest which the transferor is then capable of passing in the property. In other words it is only the interest of the transferor which he is capable of conveying in the property that would pass to* the vendee and in case he is not capable of passing any interest in the property, nothing would pass to the vendee. In the instant case the vendors were left with no rights as they lost all rights, title and interest in the plots in dispute in the aforesaid compromise and these plots were given in favour of the petitioner and in lieu thereof some corresponding plots were given to the vendors. Hence the vendors had no interest left so as to convey the same to the transferors. It is thus crystal clear that the vendees had not derived any right, title or interest in the sale deed executed by the vendors in their favour. In view of the discussion hereinbefore, I am of the view that the Board of Revenue has clearly exceeded jurisdiction under Section 100 C.P.C. read with Section 331(4) of the Act. There was no scope of the second appellate Court to set aside the findings of fact recorded by the Additional Commissioner about the fraudulent or collusive nature of the decree. The findings of fact were also based on evidence and howsoever grossly erroneous they may appear to be, when in fact they were not erroneous, much less grossly erroneous, the second appellate Court had no jurisdiction to interfere with the same. The vendors, respondent Nos. 7 and 8 had no right, title or interest left in the plots in dispute after admitting the claim of the petitioner in the compromise decree, so as to be able to transfer any interest by the sale deed dated 11.7.1966 in favour of vendees. Hence the vendees did not derive any title out of the sale deed.

25. In the result the writ petition succeeds and is allowed and the judgment and order of the Board of Revenue dated 30.7.1976 is hereby quashed. The petitioner would also be entitled to her cost."

6. I have considered the submissions advanced by learned counsel for the petitioner and perused the records.

7. There is no dispute about the fact that the suit under Section 229-B of the U.P. Z.A. & L.R. Act filed by the contesting respondent no.2 has been dismissed by the trial court, recording finding of fact that defendant is recorded in the revenue records and plaintiff has failed to prove his title and possession in respect to the disputed plot, as such, the suit was dismissed by the trial court. The decree of the trial court was affirmed in appeal by the Commissioner but the Board of Revenue has allowed the second appeal and decreed the plaintiff's suit.

8. The trial court while dismissing the plaintiff's suit, has referred the revenue entry of 1346 fasli khatauni in which Ram Dayal (petitioner's uncle) was recorded, the revenue entry of 1382/83 fasli khatauni, Gayadeen (petitioner) was recorded with duration 1360 fasli, bhumidhari sanad issued on 25.1.1950 in the name of Gayadeen (Petitioner) only was also taken into consideration by trial court. The trial court has also considered the oral evidence adduced by both parties and recorded finding of fact that plaintiff has failed to prove his title but board of revenue without considering the abovementioned oral and documentary evidence on record, has allowed the second appeal and decreed the plaintiff's suit substituting his own finding. The trial court has also taken into consideration the revenue entry of 1347 fasli khatauni in which Kalu (father of petitioner as well as respondent no.2) was recorded but that is not sufficient to hold that plot in dispute in ancestral one, the possession of one co-sharer is possession of all co-sharer is also not sufficient to hold that plaintiff is co-sharer of the plot in dispute unless plaintiff prove that plot in dispute is ancestral plot which he failed to prove before trial court, as such, judgment passed by Board of Revenue cannot be sustained in the eye of law.

9. Since the trial court has dismissed the plaintiff's suit, after recording finding of fact on the issues framed in the suit, considering the revenue entries and the oral evidence adduced in the suit to the effect plaintiff has failed to prove his title and possession in respect to the disputed plot, rather defendant was found recorded in the revenue records and possession of the defendant was also established. The Board of Revenue by passing a cryptic order, has set aside the judgment of the trial court as well as of the first appellate court and even decreed the plaintiff's suit under Section 229-B of the U.P. Z.A. & L.R. Act, without reversing the finding of fact recorded by the trial court in accordance with law. The judgment cited by counsel for the petitioner in Sharda Devi (supra) is fully applicable wherein this Court has held that the second appellate court cannot travel beyond the jurisdiction and it has been further held that unless the finding of fact recorded by the trial court is reversed in accordance with law, the Board of Revenue cannot substitute his own finding. In the instant case, the Board of Revenue has mentioned the case of the parties and mentioned the citation of 1976 RD and has out-rightly allowed the second appeal and decreed the plaintiff's suit which cannot be sustained in the eye of law.

10. The order passed by the Board of Revenue decreeing the plaintiff's suit for declaration by passing cryptic judgment cannot be sustained in the eye of law. The manner in which impugned judgment has been passed by the Board of Revenue, can be a judgment of dismissal of second appeal, affirming judgment of courts below but this cannot be a judgment of allowing the second appeal and decreeing the suit under Section 229-B of the U.P.Z.A & L.R. Act in the exercise of second appellate jurisdiction.

11. Considering the ratio of law laid down in Sharda Devi (supra) as well as on the facts and circumstances of the case, the impugned judgment passed by the Board of Revenue on 25.7.1996 and 29.9.1998 are liable to be set aside and the same are hereby set aside.

12. The writ petition stands allowed and the judgment of the trial court dated 19.11.1985 is hereby affirmed.

13. No order as to costs.

Order Date :- 14.12.2022

C.Prakash

(Chandra Kumar Rai, J.)