Deepak Kumar And Another vs Board Of Revenue And Others
2022 Latest Caselaw 14850 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.					  Reserved on 23.09.2022
 
                                                              Delivered on 21.10.2022                          
 
Court No. - 52   
 
Case :- WRIT - B No. - 356 of 2013
 
Petitioner :- Deepak Kumar And Another
 
Respondent :- Board Of Revenue And Others
 
Counsel for Petitioner :- Yogesh Kumar Singh,K.R. Sirohi
 
Counsel for Respondent :- C.S.C.,Nipun Singh,R.G.Prasad,Satyendra Kr. Singh,Shiv Prakash,Suresh Chandra Verma
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri R.C. Singh, the learned Senior Counsel assisted by Sri Yogesh Kumar Singh, for the petitioners and Sri Nipun Singh, counsel for respondent nos. 12 to 22.

2. The brief facts of the case are that land pertaining of Khasara plot No.2695 area 1-1-0, Khasara Plot No.5613 area 0-18-0, Khasara Plot No. 5649 m. area-0-4-10, Kashara Plot No.5651 area 0-12-0, Khasara Plot No.5652 area 0-03-0 Khasar Plot No.5648 area 0-12-0, Khasara Plot No.5649 area 0-1-0 Khasra Plot No.5650 area 010-0, total area 4-2-0 situated at Kasba-Kandhala, Nagar Palika-Kandhala, Pargana-Kandhala, Tehsil-Kairana, District-Muzaffar Nagar (Now Shamli) belong to one Shree Ram. Land belonging to Shri Ram was also situated in village-Aldi. After death of Shree Ram names of his two sons Kishan Swarup and Surendra Swaroop were substituted and name of KishanSwaroop and Surendra Swaroop were recorded in respect to the land situated in village-Kandhala and Aldi during consolidation operation having ½ share each but later on the name of Kishan Swaroop (grand father of petitioners) was expunged from the land in dispute on the basis of decree dated 14.11.1953 accordingly petitioners' father as well as petitioners filed a suit under Section 229-B of U.P.Z.A.&L.R. Act for declaring their share in the property in dispute on the ground that land in dispute is Sir Khud Kast ancestral property of plaintiffs as such they are entitled for the share. Defendants filed their written statement and contested the suit. Trial Court framed the issues and parties adduced evidences in support of their cases but trial court dismissed the plaintiff's suit vide judgment and order dated 23.03.2005. Against the judgment dated 23.03.2005 passed by trial court petitioners filed an appeal before Commissioner which was heard and dismissed by Additional Commissioner vide judgment dated 29.09.2007. Petitioners challenged the judgment dated 29.09.2007 before Board of Revenue through Second-Appeal which was dismissed vide judgment dated 08.10.2012 hence this writ petition.

3. Civil Suit No.44 of 1953 Surendra Prakash vs. Sri Kishan Swaroop was decided by order dated 14.11.1953 on the basis of alleged consent of the parties. The proceeding initiated by contesting respondents in the year 1964 under Section 33/39 of U.P. Land Revenue Act on the basis of the decree of civil Court was rejected by order dated 30.05.1964 holding that amaldaramad cannot be made on the basis of civil Courts decree dated 14.11.1953.

4. This petition was entertained on 07.01.2013 and following interim order was passed:

"Heard learned counsel for the petitioners and Shri S.C. Verma, who has put in appearance on behalf of respondent no. 4. He prays for and is allowed six weeks' time to file counter affidavit.

Issue notice to respondent nos. 5 to 10, who may also file counter affidavit.

Petitioners shall take steps for service of notice on the respondents by registered post within one week. Office shall issue notices returnable at an early date.

List after service of notice on respondent nos. 5 to 10.

Considering the facts and circumstances, until further orders of this Court, parties to the writ petition are directed to maintain status quo with respect to nature and possession over the land in dispute as it exists today. Both the parties are further restrained from alienating, transferring or changing the nature of the land in dispute in any manner."

5. In pursuance of the order of this Court dated 07.01.2013 contesting respondents have filed their counter affidavit along with an application for vacation of interim order. Petitioners have filed their rejoinder affidavit also.

6. Counsel for the petitioners submitted that no right was claimed before the Consolidation Court on the basis of the judgment of Civil Court date 14.11.1953 accordingly separate chaks were carved out in the name of Kishan Swaroop and Surendra Swaroop and final record under Section-27 of the U.P.C.H. Act was also prepared but courts below have filed to consider this question and dismissed the plaintiff's suit under Section 229-B of U.P.Z.A. & L. R. Act only on the basis of civil Court judgment dated 14.11.1953 which is inexecutable. He further submitted that even the application filed by contesting respondents under section 33/39 of U.P. Land Revenue act in the year 1964 to correct the revenue entry on the basis of civil court judgment dated 14.11.1953 was rejected. He further submitted that implementation of civil Court judgment after conclusion of consolidation proceeding is not permissible in view of law laid down by Apex Court as well as by this Court in the following judgment:

(I) A.I.R. 1977 S.C 1226

Pyare Lal Vs. Hori Lal

(II) 2004 (96) R.D. 530

Babu Ali (D) through L.Rs. And others vs. Dukkhi and others

(III) 2011 (5) A.D.J. 330

Hori Lal and another vs. Additional District Judge Agra and others

7. Counsel for the petitioners further submitted that final decree in pursuance of the judgment dated 14.11.1953 has not been prepared as such the judgment dated 14.11.1953 could not be implemented although final decree if any would abate on account of Consolidation operation. On this point Counsel for the petitioners placed reliance upon the judgment of Apex court reported in A.I.R. 1995 Supreme Court 2493 Mool Chand and others Vs. Deputy Director of Consolidation and others.

8. Counsel for the petitioners further submitted that courts below have illegally dismissed the suit for declaration filed by petitioners under Section 229-B of U.P.Z.A. & L.R. Act on this basis of void judgment and decree of civil court.

9. He further submitted that claim of co-tenancy is not barred nor any limitation has been prescribed for filing suit under Section 229-B of U .P.Z.A. & L.R. Act. Counsel for the petitioners placed reliance upon following judgment of this Court with respect to co-tenancy and limitation for filing suit under Section 229-B of U.P.Z.A. & L. R. Act.

(I) 2017 (6) ADJ 356 (DB)

Ram Briksha and another vs. Deputy Director of Consolidation and others.

(II) 2005 (99) RD 529

Pan Kumari vs. Board of Revenue U.P. Allahabad.

10. Counsel for the petitioners submitted that writ petition be allowed and matter be remanded before trial court for fresh adjudication of suit under section-229-B of U.P.Z.A.& L.R. Act on merit.

11. On the other hand, Counsel for the contesting respondent submitted that judgment and decree of Civil Court dated 14.11.1953 was a consent decree and the land was out of consolidation as such there was no bar of section-49 of U.P.C.H. Act for the contesting respondents rather the bar of Section-49 of U.P.C.H. Act will be for the petitioner in instituting present suit under Section-229-B of U.P.Z.A. & L.R. Act by the petitioners. He further submitted that consent decree operates as estoppel and binding unless set aside. He further submitted that proper course available to the petitioners to approach same court seeking recall of the order if the compromise or consent is the result of fraud or undue influence. Counsel for the respondent placed reliance upon the following judgments on the point of consent decree, compromise and remedy available to the party concern against the consent decree or compromise:

(I). R. Rajannnna v. S.R. Venkataswamy, (2014) 15 SCC 471

(II) Pulavarthi Venkata Subba Rao and others Vs. Valluri Jagannadha Rao and others AIR 1967 SC 591

(III) Sailendra Narayan Vs. State of Orissa, reported in AIR 1956 S.C. 346

(IV) Habib Milan Vs. M Ahmad, reported in AIR 1974 A.P. 303

(V) Byram Pestonji Ganwala Vs. Union of India, reported in (1992) 1 SCC 31

(VI) Jadu Gopal Chkravarty (dead) by his Lrs. Vs. Pannalal Bhowmick and ors, reported in (1978) 3 SCC 215

(VII) Katikara Chintamani Dora Vs. Gautreddi Annamanaidu, reported in AIR 1974 SC 1069

(VIII) Pushpa Devi Bhagat (dead) through L.R. Sadhna Rai, (Smt.) Vs. Rajinder Singh and others reported in (2006) 5 SCC 566

12. Counsel for the respondents further submitted that in rural ceiling matter the judgment and decree of Civil Court dated 14.11.1953 was relied upon and the same was accepted by the Court while allowing the appeal of contesting respondents against the state in declaration of surplus land. He further submitted that no interference is required against the impugned judgment and the writ petition filed by the petitioners is liable to be dismissed.

13. I have heard the learned counsel for the parties and perused the records.

14. There is no dispute about the fact that petitioners and contesting respondents descended from common ancestor shree Ram. During consolidation operation Kishan Swaroop (ancestor of petitioners) and Surendra Swaroop (ancestor of contesting respondents) were allotted separate chak of ½ share. So far as decree of Civil Court dated 14.11.1953 is concerned petitioners' version is that the same is fraudulent and never acted upon while the version of contesting respondents is that the decree of civil Court unless recalled or set aside cannot be ignored. The proceeding initiated under Section 33/39 of U.P. Land Revenue Act to give effect the decree of Civil Court dated 14.11.1953 in the revenue record was rejected vide order dated 30.05.1964 however subsequently, the revenue entry were corrected, hence present suit under Section 229-B of U.P.Z.A. & L.R. Act at the instance of the petitioners as well as their father which has been dismissed by all the three courts on the ground of Civil Court Judgment and decree dated 14.11.1953.

15. Since the judgment and decree of the civil Court dated 14.11.1953 alleged to be passed between the parties is the main ground on which the suit filed by the petitioners' father under Section 229-B of U.P.Z.A.& L.R. Act has been dismissed, as such first of all Court will examine the judgment of Civil Court passed on 14.11.1953 which is as follows:

"This is a suit done a mere declaration that the plaintiff is the owner of the property given in the schedule by means of the parties. The defendants who are the other co-sharers in the property have admitted the right of the plaintiff and the plaintiff has given his consent. So the court has to grant the declaration sought. But before parting with the case I would like to point out that such suits are filed with the sole object of saving stamp duty and registration for which have been payable on a deed of partition. Such a device is hardly desirable.

Order

The suit is decreed and parties shall bear their own costs. Copy of the judgment may be sent to the Inspector of Stamps and Registration Meerut circle for information."

16. Perusal of judgment of Civil Court dated 14.11.1953 reveals that suit was filed by ancestor of contesting respondents for declaration and by 9 lines order suit has been decreed on the alleged admission of defendant. It is also mentioned in the order that sole object of the suit is to save stamp duty and registration fee which would have been payable on a deed of partition such a device is hardly desirable the copy of the judgment was ordered to be sent before inspector of stamp and registration, Meerut circle but there is nothing on record, whether it was sent before inspector of stamp or not.

17. Contesting respondents have not taken steps for implementation after getting the judgment of civil court dated 14.11.1953. In the year 1964 proceeding under Section 33/39 of U.P. Land Revenue Act 1901 was initiated by the contesting respondents for expunging the name of ancestor of petitioners on the basis of civil Court judgment dated 14.11.1953, the S.D.O. vide order dated 30.05.1964 dismissed the application on the ground that amaldaramad of decree dated 14.11.1953 was neither claimed nor made in village-Aldi and Kandhala during consolidation operation.

18. It is pertinent to mention that village Kandhala and Aldi were brought under Consolidation operation some times in the year 1958 and no objection was filed by anybody claiming right or title on the basis of the judgment of civil Court dated 14.11.1953. Petitioners and contesting respondents were allotted separate chak of 1/2 share in respect to both the villages, the revenue entry in the form of C.H. 23 (part--1) have been annexed as annexure No.10 to the writ petition to demonstrate the aforementioned facts.

19. These facts fully proves that judgment of Civil Court dated 14.11.1953 has not been acted upon as such the same cannot be relied upon by the revenue Court to dismiss the suit of the plaintiff-petitioners under Section 229-B of U.P.Z.A. & L.R. Act. The suit under Section 229-B of U.P.Z.A.& L.R. Act are special type of suit which is to be decided in accordance with law as well as the suit for co-tenancy can not be rejected or dismissed ordinarily as held by this Court in Ram Briksha (supra). Para No.36, 37, 38 and 39 of the judgment rendered in Ram Briksha (supra) will be relevant which are as follows:-

"36. On these parameters, the issues that have been raised before us are being considered and in our considered opinion rights of the parties in a holding cannot be permitted to be defeated merely because they have not at all participated in consolidation proceedings and as to whether the bar of Section 49 of U.P. Consolidation of Holdings Act, 1953 would be attracted or not would essentially be a question of fact that can be answered on the basis of evidence adduced and to the said bar in question exceptions have to be carved out wherein suit in question would be not barred and Section 49 of U.P. Consolidation of Holdings Act, 1953 would not come into play where from the series of documents and circumstances it is reflected that planned fraud has been made to delete the plaintiffs name from the revenue records. From the record of the consolidations, it is clearly reflected that neither the incumbent, who has proceeded to get his name recorded nor consolidation authorities have proceeded to discharge their duties faithfully in consonance with the provisions of U.P. Consolidation of Holdings Act wherein the consolidation authorities are empowered to ascertain the share of each owner if there be more owners than one and in case such an exercise has not been undertaken, then it would be a case of legal malice and it cannot be ipso facto presumed that there has been ouster from the property in question and in such a situation an incumbent, who claims his right in the property in question has got every right to regain his property based on title for the reason that the right has been sought to be defeated based on fraud and manipulation.

The provisions of Section 49 of U.P. Consolidation of Holdings Act, 1953 in such backdrop would not at all be attracted and the suit in question would not at all be prima facie barred where suit in question is filed for possession of the suit property based on property interest. The reference is answered as follows:

Issue No.I

37. Whether use of words "could or ought to have been taken" in latter part of Section 49 of the Act, compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer, whose name is recorded in representative capacity, or they were willing to live jointly, due to situation of their family, i.e. (father and minor son), (mother and minor son), (brother and minor brother) and (some co-sharer was student and had gone abroad for study and fully depends upon other co-sharers) etc., to file an objection under Section 9 of the Act for separation of his share?

A. Because of the words "could or ought to have been taken" in latter part of Section 49 of the Act, same does not compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer whose name is recorded in representative capacity or they were willing to live jointly due to situation of their family and who have not filed an objection under Section 49 of the Act for separation of their share inasmuch as under the provisions of U.P. Consolidation of Holdings Act, 1953, it is the statutory obligation cast upon the authorities and the incumbent, who has been holding the property in question in the representative capacity to get the records corrected and in case in designed manner the obligation in question has not been discharged by Consolidation Authorities as well as by the incumbent holding the property in the representative capacity, then in such a situation Section 49 of the Act would not at all be attracted and such situation would be covered under the contingency of planned fraud to drop the name of other co-sharers from the revenue records.

Issue No.II

38. Whether by operation of law, the parties can be thrown into litigation against their will/need and by not raising claim to land or partition and separation of the chak their right to property can be taken away in spite of protection available under Article 19 (1) (f) and now Article 300-A of the Constitution?

A. The answer is that a party cannot be thrown in litigation against their will/need and by not raising claim to land of partition and separation of chak, their rights to property cannot be taken away under the protection provided for under Article 19(1)(f)/Article 300-A of the Constitution of India.

Issue No.III

39. Whether, in spite of well settled legal principle in respect of joint property, right of a co-sharer will come to an end under Section 49 of the Act, on the notification under Section 52, due to not claiming partition of his share and separate chak in his name, although, there had been no ouster from joint property?

A. The rights of the co-sharers will not at all come to an end under Section 49 of the Act, on the notification under Section 52 due to not claiming partition of his share and separate chak in his name and till there is no ouster from the joint property his right in the property will continue to exist.

The reference is accordingly answered. The Writ Petition alongwith connected matters shall now be placed before the appropriate Bench according to roster for disposal in light of this judgement."

20. On the point of maintainability of suit under Section 229-B of U.P.Z.A. & L.R. Act on the point of limitation etc. the judgment rendered in Pan Kumari (Supra) will be relevant, paragraph No.6 of the judgment will be relevant which is as follows:

"6. Sri R.C. Singh submits that the suit under Section 229-B was barred by limitation. In support of this contention he relies upon Section 341 of the U.P. Zamindari Abolition and Land Reforms Act, which provides that the Limitation Act would be applicable to proceedings under the U.P. Zamindari Abolition and Land Reforms Act and limitation in a suit for declaration would be governed by Article 137 of Schedule 1 of the Limiataion Act as there is no period prescribed for such a suit under the U.P.Z.A. & L.R. Act. Section 341 itself provides that the provisions of certain Acts including the Limitation Act shall apply to the proceedings under the U.P. Z.A. & L. R. Act unless otherwise provided in the U.P.Z.A. & L.R. Act. Rule 338 of the U.P.Z.A. and L.R. Rules provides that the suits, applications and Ors. proceedings specified in Appendix III shall be instituted within the time specified therein for them respectively. Recourse to the provisions of the Limitation Act would be available only if there is no provision under Rules in respect of the period of limitation for the different classes of suits or proceedings mentioned therein. In Appendix III the period of limitation provided for different classes of suits has been given. As regards suits under Section 229-B column 4, which prescribes the period of limitation for different classes of suit says "none". It would therefore be treated that there is no limitation for filing a suit under Section 229-B. Section 9 of the Civil Procedure Code provides that all suits of civil nature shall be instituted in the civil court except those, which have been accepted. A suit under Section 229-B falls within the excepted category and such suits even though they involve declaration are suits of a special character. Article 137 of the Limitation Act relied upon by Sri Singh in any case is applicable only to applications and not to suits and therefore has no play. When the rule making authority has provided different periods of limitation for different classes of suits it would be treated that provisions prescribing period of limitation in the Limitation Act would not be applicable to suits under the U.P.Z.A. & L.R. Act. Section 189 U.P.Z.A. & L. R. Act sets out the circumstances in which the interest of a bhumidar is extinguished. Clauses (a) (aa) and (b) relate to cases where the bhumidar dies leaving no heir, or where he has let out his holding in contravention of the provisions of the Act or where the land is acquired. Sub-section (C) of Section 189 provides that where a bhumidar has lost possession the bhumidari right would extinguish when the right to recover possession is lost. In Ram Naresh Vs. Board of Revenue 1985 R.D. 444 relied upon by Sri R. C. Singh it was held that the provisions of Section 27 of the Limitation Act would be attracted to suits instituted under Section 229-B. Section 27 provides that on the determination of the period limited for instituting a suit for possession the right to such property shall be extinguished. The rule is an exception to the general rule that limitation bars the remedy but does not extinguish the right. If however a person is in possession his right can not be extinguished unless the case is covered by Clauses (a) (aa) and (b) of Sectiion 189. He can therefore seek a declaration of his right at any point of time. If a person has been dispossessed he would have to institute a suit under Section 209 U.P.Z.A. & L.R. Act. Appendix III provides the period for limitation for filing a suit under Section 209. It would follow therefore that a suit under Section 229-B would be barred by limitation the bhumidar is out of possession and his right to file a suit under Section 209 is barred by limitation. The finding of fact recorded on the question of possession is that the plaintiffs have established their continuous possession over the disputed land. The finding is not shown to be vitiated by any error. As the rights of the plaintiff were never extinguished no question of limitation arises. For the reasons given above the writ petition lacks merit and is dismissed."

21. So far as the argument advanced by learned counsel for the contesting respondents as well as case law cited by him are concerned to the effect that unless judgment and decree of Civil Court dated 14.11.1953 is recalled/set aside, revenue court cannot ignore the same cannot be accepted as the decree of civil Court dated 14.11.1953 has not been given effect to even during consolidation operation as such the petitioners' suit under Section 229-B of U.P.Z.A. & L.R. Act cannot be dismissed on the ground of Civil Court judgment dated 14.11.1953. The first appellate Court moved one step ahead and made out a third case that no evidence was produced before the trial court that shri Ram was common ancestor of the parties while there was no dispute at all that Shri Ram was common ancestor of the parties and there was evidence to that effect before the trial court as well as before this Hon'ble Court the IInd Supplementary affidavit dated 21.09.2022 filed by petitioners contain the fact as well as evidences which were filed before trial court.

22. Second Appellate Court has also failed to exercise the IInd Appellate Court jurisdiction and only on the ground of judgment of Civil court dated 14.11.1953 dismissed the second appeal.

23. Considering the entire facts and circumstances as well as case law mentioned above the impugned judgment and decree dated 23.02.2005 passed by respondent No.3, judgment dated 29.09.2007 passed by respondent No.2 and judgment dated 08.10.2012 passed by respondent No.1 are manifestly erroneous and are liable to be set aside, the same are hereby set aside.

24. The writ petition is allowed and matter is remanded back before trial court to decide the suit filed by petitioners under Section 229-B of U.P.Z.A. & L.R. Act on merit afresh after affording proper opportunity of hearing to the parties expeditiously preferably within a period of six months from the date of production of certified copy of this order. Since petitioners were granted interim-order during pendency of the writ petition before this Court, even during pendency of the First Appeal and Second Appeal interim order was granted by courts below as such it is directed that parties shall maintain status quo with respect to nature and possession of the land in dispute and no third parties interest be created in respect to property in dispute.

25. No orders as to costs.

Order Date :- 21.10.2022

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