K.K.Singh vs Board Of Revenue
2022 Latest Caselaw 22669 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved On: 29.11.2022
 
Delivered On: 23.12.2022
 
Court No. - 52
 
Case :- WRIT - B No. - 23791 of 1988
 

 
Petitioner :- K.K.Singh
 
Respondent :- Board Of Revenue
 
Counsel for Petitioner :- H.O.K.Srivastava,Chandra Shekhar Agnihotri
 
Counsel for Respondent :- SC,Abhinava Krishna Srivastava
 

 
With
 

 
Case :- WRIT - B No. - 23792 of 1988
 

 
Petitioner :- K.K.Singh
 
Respondent :- B.R.
 
Counsel for Petitioner :- H.O.K.Srivastava,Chandra Shekhar Agnihotri
 
Counsel for Respondent :- SC,Abhinava Krishna Srivastava
 
With 
 

 
Case :- WRIT - B No. - 24134 of 1987
 

 
Petitioner :- Vimal Kishore Singh
 
Respondent :- Board Of Revenue
 
Counsel for Petitioner :- H.O.K. Srivastava
 
Counsel for Respondent :- S.C.
 

 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Chandra Shekhar Agnihotri, learned counsel for the petitioners, Sri M.C. Chaturvedi, learned Senior Counsel assisted by Sri Abhinav Krishna Srivastava, counsel for the Kanpur Development Authority and the learned Standing Counsel for the State respondents in all the three connected writ petitions.

2. Since common issues are involved in all the three writ petitions, as such, all the three writ petitions are being heard together and is being disposed of by common judgment.

3. Brief facts of the case are that respondent no.5, Nagar Mahapalika Kanpur, filed two suits for ejectment of the petitioner in respect to disputed plots as mentioned in the plaint under Section 229B / 209 of U.P.Z.A. & L.R. Act, which were numbered as Suit Nos.200 of 1970 and 176 of 1971. The plaint allegation was that plot in dispute belonged to Gaon Sabha which subsequently vested in Nagar Mahapalika but defendant in collusion with the Lekhpal got his name recorded over the land in dispute on the basis of illegal patta and in 1365 fasli defendant trespassed over the plot in dispute, hence the suit. Petitioner being defendant in suit filed written statement denying plaint allegations on the ground that a lease was executed in his favour by Gaon Sabha concerned, as such, there is no question of trespass by defendant. It is also alleged that no proceeding for cancellation of defendant's lease has been initiated under Section 198 (4) of U.P.Z.A. & L.R. Act, as such, plaintiff's suit is not maintainable. Both the suits were heard by trial Court after framing issues and both the suits were decreed after considering the oral and documentary evidences on record by judgment and decree dated 8.5.1972 recording finding of fact that lease was illegal as no proceeding of 4.6.1958 is recorded in proceeding register and there is no compliance of Rule 173 to 178 of U.P.Z.A. & L.R. Rules. Defendant-petitioner filed Appeal Nos.275 and 276 of 1971-72 against the judgment and decree of trial Court dated 8.5.1972 in both the suits which were dismissed by Additional Commissioner by common judgment dated 7.6.1975. Defendant-petitioner filed Second Appeal Nos. 321 (2) & 322 (2) of 1974-75 before Board of Revenue, which were consolidated and dismissed by judgment dated 26.8.1988, hence Writ Petitions No.23791 of 1988 and Writ Petition No.23792 of 1988 before this Court on behalf of defendant / petitioner.

4. This Court while entertaining the Writ Petition Nos.23791 of 1988 & 23792 of 1988 passed the following interim order dated 13.12.1988:-

"Issue notice.

Until further orders of this Court, the petitioner shall not be ejected from the disputed land."

5. Brief facts of the case in respect to Writ Petition No.24134 of 1987 is that Suit No.278 of 1971, under Section 229 B /209 of U.P.Z.A & L.R. Act was filed by respondent no.5, Nagar Mahapalika, which was dismissed by trial Court vide judgment and decree dated 15.3.1973. Appeal filed by respondent no.5 before Commissioner against the judgment and decree of trial Court dated 15.3.1973 was allowed by Commissioner vide judgment and decree dated 19.11.1975 and plaintiff's suit was decreed. Second appeal filed by petitioner before the Board of Revenue was dismissed by judgment dated 18.11.1987, hence this Writ Petition No.24134 of 1987 on behalf of defendants/ petitioners before this Court. The plaint case and written statement are same as mentioned above in respect to connected writ petition.

6. This Court while entertaining the Writ Petition No.24134 of 1987, passed the following interim order dated 24.12.1987:-

"Issue notice.

Meanwhile, petitioners shall not be dispossessed from the land in dispute."

7. During the pendency of the writ petition on behalf of petitioner, an application for impleadment has been filed to implead Kanpur Development Authority as respondent no.6 in the writ petition in view of gazette notification dated 6.9.1978 by which land in dispute has been vested in Kanpur Development Authority, the application for impleadment has been allowed vide order dated 25.11.2022 and the Kanpur Development Authority has been impleaded as respondent no.6 in the writ petition.

8. Respondent no.6 has filed counter affidavit as well as supplementary affidavit. Petitioners have filed rejoinder affidavit also.

9. Learned counsel for the petitioners submitted that petitioners were granted lease which has not been cancelled by the revenue Court in accordance with law, as such, the same remains effective till it is cancelled in the regular proceeding. He further submitted that validity of the lease cannot be examined in the proceeding under Section 229 B of U.P.Z.A. & L.R. Act. He further submitted that the courts below have wrongly shifted the burden upon the shoulders of the petitioners who were defendants in the suit, as such, the impugned judgments passed by the courts below are manifestly erroneous and illegal. He further submitted that in the plaint no allegation has been setup regarding the minority of the petitioners at the time of the execution of the lease deed, as such, the courts below cannot examine the issues which have not been set up in the plaint by the respondents. He further submitted that the amendment in Section 198 of U.P.Z.A. & L.R. Act came into force in the year 1975, as such, the same will not apply in the present dispute as the suit was filed in the year 1970-71 and the lease was executed in favour of petitioners on 4.6.1958.

10. Learned counsel for the petitioners place reliance upon the full Bench decision of this Court reported in 1977 RD 408, Similesh Kumar Vs. Gaon Sabha Uskar Ghazipur and Others.

11. On the other hand, learned counsel for the respondent no.6 submitted that all the three courts have concurrently held that the petitioners have no right and title with respect to the disputed land as well as lease alleged to be executed in favour of the petitioners, was found to be non-existent / void, as such, no interference is required against the impugned judgment. He further submitted that at the time of the execution of alleged lease deed dated 4.5.1958 petitioners were minor, as such, there is no question of execution of alleged Will-deed in favour of the petitioners. He further submitted that the Raghuraj Singh who has executed the alleged lease in favour of petitioners, was father of the petitioners, as such, in view of the provisions contained under Section 28C of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as "Act of 1947") , the lease will be against the provision of the Act of 1947 and no right will accrue to the petitioners. He further placed reliance upon the Section 28 C of the Act of 1947 as well as the affidavit filed by the petitioners before this Court in which his date of birth in the I.D. proof has been given as 1.1.2007 from which it is proved that the petitioners were minor on the date of execution of alleged lease deed. He placed reliance upon the judgment of Hon'ble Apex Court reported in 1996 SCC (5) Page 194, State of U.P. Vs. Deputy Director of Consolidation.

12. I have considered the argument advanced by learned counsel for the parties and perused the record.

13. There is no dispute about the fact that three suits under Section 229 B of U.P.Z.A. & L.R. Act was filed by respondent no.5 impleading the petitioners as defendants on the basis that disputed land is State land, as such, defendant is liable to be ejected. The trial Court decreed the plaintiff's Suit Nos.200 of 1970 & 176 of 1971 but dismissed the Suit No.278 of 1971 after framing the issue and considering the evidence on record. The judgment and decree passed by the trial Court was affirmed in first appeal as well as in second appeal in respect to Suit Nos.200 of 1970 & 176 of 1991 so far as Suit No.278 of 1971 is concerned, the same was decreed in appeal by Commissioner and the second appeal filed by the petitioners was dismissed.

14. The trial Court has recorded the finding of fact that the disputed land is a State land and there was no lease in favour of the petitioners. The trial Court has also recorded finding of fact that in the proceeding register of 4.6.1958, no proceeding is recorded which fully demonstrates that there was no execution of lease in accordance with law.

15. The Board of Revenue while deciding the second appeal has also recorded finding of fact that no resolution of the Gaon Sabha has been filed by the defendant in the courts below, as such, the trial Court has rightly held that lease is fraudulent and non-existent. The Board of Revenue has also recorded finding of fact that since the lease is forged and fraudulent, as such, there is no necessity for its cancellation.

16. Hon'ble Apex Court in the case reported in 2000 (91) RD 165, U.P. State Sugar Corporation Limited Vs. Deputy Director of Consolidation and Others has distinguished the full Bench decision of this Court in Similesh Kumar (supra) and has held that the consolidation courts can ignore the lease deed if the same is void. Paragraph Nos. 40, 41 & 42 of the judgment are relevant which are as follows:

"40. In the Full Bench decision of the Allahabad High Court, referred to above, it was held that the Consolidation Authorities have no jurisdiction to consider the question of cancellation of lease which could be considered only by regular courts. The decision of this Court in Gorakh Nath Dube v. Hari Narain Singh [(1973) 2 SCC 535 : (1974) 1 SCR 339 : 1973 RD 423] in which it was held that a void document which was liable to be ignored by the court would not affect the jurisdiction of the Consolidation Courts was distinguished. So also the decision of the Division Bench of the Allahabad High Court in Jagarnath Shukla v. Sita Ram Pande [1969 All LJ 768 (DB)] which was affirmed by this Court in Gorakh Nath Dube case [(1973) 2 SCC 535 : (1974) 1 SCR 339 : 1973 RD 423] was distinguished. We have carefully considered these decisions and, in our opinion, the Full Bench of the Allahabad High Court was in error in distinguishing the decision of this Court in Gorakh Nath Dube case [(1973) 2 SCC 535 : (1974) 1 SCR 339 : 1973 RD 423] which has since been followed by this Court in Dularia Devi v. Janardan Singh [1990 Supp SCC 216] , Asharfi Lal v. Koili[(1995) 4 SCC 163] and Muneshwar v. Raja Mohd. Khan [(1998) 6 SCC 582] .

41. The decision of this Court in Gorakh Nath Dube case [(1973) 2 SCC 535 : (1974) 1 SCR 339 : 1973 RD 423] was also followed by the Allahabad High Court in Ramanand v. D.D.C. [1987 RD 431] and it was held that a document which is void and is, therefore, liable to be ignored by the courts, would not affect the jurisdiction of the Consolidation Courts and they would be within their jurisdiction in adjudicating upon that document so as to finally decide the rights of the parties. The Full Bench decision of the High Court in Similesh Kumar case [1977 RD 409 : AIR 1977 All 360 (FB)] was distinguished.

42. In the instant case, in view of the provisions of Section 7(aa) and Section 9 of the U.P. Zamindari Abolition and Land Reforms Act, the land in dispute, which was held by the Consolidation Officer and the Settlement Officer (Consolidation) to be the land appurtenant to the staff quarters of the Sugar Mill, had not vested in the State under Section 6 of the Act as a consequence of the notification issued under Section 4 of the Act. Once these plots did not vest in the State, they would not vest in the Gaon Sabha and the Gaon Sabha had, therefore, no jurisdiction to grant lease of those plots to the respondent. Such a lease was a void document from the inception and, consequently, the jurisdiction of the Consolidation Authorities was not affected. No other point was pressed before us."

17. Considering the entire facts and circumstances as well as ratio of law laid down in U.P. State Sugar Corporation Limited (supra), no interference is required against the impugned judgments.

18. All the three writ petitions filed by the petitioners against the impugned judgments are devoid of merit and the same are hereby dismissed.

19. No order as to costs.

Order Date :- 23.12.2022

Rameez