Matashiromani vs State Of U.P. And Another
2022 Latest Caselaw 12361 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved On:31.08.2022
 
Delivered On:09.09.2022
 
Court No. - 58
 

 
Case :- SECOND APPEAL No. - 1284 of 2018
 

 
Appellant :- Matashiromani
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Anil Kumar Mishra
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Anil Kumar Mishra, learned counsel for the appellant and Mr. Jitendra Narayan Rai, learned Additional Chief Standing Counsel along with Mr. Pradeep Kumar Tiwari, learned Standing Counsel for the State.

2. The present second appeal under Section 100 of Civil Procedure Code has been filed on behalf of plaintiff against the judgment and decree dated 30.8.2018 / 5.9.2018 passed by District Judge Bhadohi Gyanpur in Civil Appeal No.21 of 2018 arising out of Suit No.112 of 2013, the trial Court vide judgment and decree dated 2.4.2018/13.4.2018 dismissed the plaintiff's suit for declaration and injunction and the decree of trial Court has been maintained by lower Appellate Court.

3. The plaint case as pleaded in brief is that Plot No.146 area 0.183 hectare situated in Village- Sherpur Gopalaha, District Sant Ravidas Nagar Bhadohi is recorded as Navin Parti in the revenue records. The old number of Plot No.146 before consolation operation was 3755, 3756, 3757, 3758, 3759, 3760, 3761 and 3763. It is further mentioned in the plaint that actual owner of the aforementioned plot were Hanuman Baksh Singh and others, Jokhai, Dangar, Kashav (plaintiff's father) and Ram Prasad Singh. It is further pleaded that aforementioned plots are situated adjacent to Abadi Plot No.317 (old no.3820) in which plaintiff's old residential house is situated. It is further pleaded that at the time of the partal during consolidation operation disputed plot was Abadi on spot but due to the fault of Consolidation Authorities, the plot in dispute was recorded as Navin Parti in the revenue records, as such, defendants threatened to interfere with the possession as well as to dispossess the plaintiff from the disputed Abadi land and further threatened to allot the same to other person, hence the suit.

4. Defendant No.1 and 2 (State and Gram Panchayat) have not filed any written statement in spite of service of notices upon them, hence suit was proceeded against defendant nos. 1 and 2 under Order 8 Rule 10 of Civil Procedure Code. Plaintiff adduced oral and documentary evidence in support of his case.

5. Before trial Court following issues were framed:

"1. क्या वादी वाद पत्र के कथनों के आधार पर विवादित भूमि का मालिक काबिज दाखिल है?

2. क्या वादी विवादित भूमि को व्यक्तिगत आबादी घोषित करा पाने का अधिकार है?"

6. While deciding the Issue No.1, trial Court after considering the oral and documentary evidences adduced by plaintiff recorded finding of fact that disputed land is recorded as Navin Parti and is a Gaon Sabha land, plaintiff is not allottee or Patta holder of the Gaon Sabha, as such, plaintiff is not entitled to any injunction against the owner of the land, accordingly, Issue No.1 was decided against the plaintiff in negative. While deciding the Issue No.2, trial Court recorded finding of fact that during consolidation disputed land was recorded as Navin Parti but plaintiff has not taken any step to get the entry corrected during consolidation operation, as such, Civil Court cannot pass decree in the nature of declaration or injunction in respect of disputed land that the same is plaintiffs Abadi, accordingly, Issue No.2 was also decided against the plaintiff in negative, the trial Court by judgment and decree dated 2.4.2018 dismissed the plaintiff's suit.

7. Against the judgment and decree of the trial Court dated 2.4.2018, plaintiff filed civil appeal under Section 96 of the Civil Procedure Code before District Judge which was registered as Civil Appeal No.21 of 2018. In Civil Appeal following points of determinations as provided under Order 41 Rule 31 of the Civil Procedure Code were framed:-

"1. क्या वादग्रस्त भूमि अपीलार्थी/वादी की आबादी की भूमि है और इस पर वादी चकबन्दी के पूर्व से वतौर आबादी काबिज दखील रहकर उस पर अपना मकान, नाद, खूटा, चरनी व पम्पिंगसेट कायम कर आबाद है?

2. क्या वादग्रस्त भूमि नवीन परती की भूमि है और उससे वादी/अपीलार्थी से कोई वास्ता सरोकार नही है।

3. क्या दावा धारा 49 उ०प्र० जोत चकबन्दी अधिनियम से बाधित है?"

8. Lower Appellate Court while deciding the points of determinations considered the revenue entries, provisions of Uttar Pradesh Consolidation of Holdings Act as well as provisions of U.P.Z.A. and L.R. Act and came to the conclusion that civil suit filed by plaintiff for declaration and injunction in respect of Gaon Sabha Land (Navin Parti) to the effect that the same is Abadi of plaintiff since long is barred by provisions of Section 49 of the U.P.C.H. Act as plaintiff has not taken any step during consolidation operation to get the entry corrected from the Navin Parti to Abadi. Lower Appellate Court has also recorded finding that area of disputed plot is 14 Biswa, 10 Dhoor which cannot become Abadi of any person, accordingly, lower Appellate Court came to the conclusion that no interference is required against judgment and decree passed by trial Court and dismissed the civil appeal by judgment and decree dated 30.08.2018, hence present second appeal on behalf of plaintiff formulating following substantial questions of law in memorandum of second appeal:

"1. Whether the plot in dispute can be settled in favour of plaintiff/appellant in view of Section 123 (1) Of U.P.Z.A. and L.R. Act?

2. Whether, the possession and Sahan of the predecessor of the plaintiff/ appellant thereafter the plaintiff/ appellant starts from 1960 up till now, can be ignored when the land in dispute is subsequently recorded as Navin Parti?

3. Whether, the right and title of the plaintiff/appellant can be perfected over the land in dispute on the basis of long possession?

4. Whether, the Court Amin report regarding the possession over the land in question, which is unrebutted can be ignored?

5. Whether, the unrebutted claim/relief of the plaintiff/ appellant in the plaint suit can be ignored by the Courts below?"

9. Counsel for the appellant submitted that plaintiff is in possession of disputed plot since 1960, as such, plaintiff perfected his title over the land on the basis of long possession. He further submitted that plaintiff is entitled to the benefit of Section 123 (1) of U.P.Z.A. and L.R. Act but Courts below have illegally dismissed the plaintiff's suit without considering the plaintiff's case. He further submitted that defendants have not filed any written statement in the suit nor adduced any evidence, as such, the plaintiff's suit was to be decreed but Courts below have erred in dismissing the plaintiff's suit. Counsel for the appellant placed reliance upon the following judgments:

1. 2007 (207) R.D. 761, Ramdeo and Others Vs Deputy Director of Consolidation and Others.

2. 2004 (96) R.D. 303, Ram Prasad and Others Vs. Deputy Director of Consolidation Pratapgarh and Others.

3. 2004 (97) R.D. 705, Jai Narain and Others Vs. Deputy Director of Consolidation Deoria

4. 2007 (102) R.D. 761

10. On the other hand, learned Additional Chief Standing Counsel submitted that land in dispute is recorded as Navin Parti in the revenue records and plaintiff has not filed any objection during consolidation operation, as such, civil suit is barred as provided under Section 49 of U.P.C.H. Act. He further submitted no right will accrue to the plaintiff in respect of Gaon Sabha / State land in spite of the fact that defendants have not contested the suit in Courts below. He finally submitted that second appeal filed by plaintiff-appellant is concluded by findings of fact, as such, is liable to be dismissed.

11. I have considered the argument advanced by learned counsel of the parties and perused the record of this Court as well as record of the Courts below which were summoned by this Court vide order dated 7.12.2018.

12. There is no dispute about the fact that Plot No.146 area 0.183 hectare was recorded as Navin Parti during consolidation operation which is supported by entry of C.H. Form 2 Ka, Paper No.30 Ga, the village in question came under consolidation operation in the year 1964 and village was de-notified under Section 52 of U.P.C.H. Act in the year 1979-80. There is also no dispute about the fact that plaintiff has not filed any objection etc. to get the entry corrected with respect to disputed Plot No.146 area 0.183 hectare.

13. In order to appreciate the argument of learned counsel for the appellant as well as substantial questions of law as framed in memorandum of second appeal as quoted above the perusal "Section 49 of U.P. Consolidation of Holdings Act" will be necessary which is as follows:

"49. Bar to civil Courts jurisdiction.- Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of right of tenure-holders in respect of land lying in an area, for which a [notification] has been issued [under sub-section (2) of Section 4] or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act :

Provided that nothing in this section shall preclude the Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act."

14. This Court in the case of Abhairaj and Others Vs. Gaon Sabha / Gram Panchayat, LMC and Another reported in 2017 (136) R.D. 603 has held that if no claim has been raised during consolidation operation, claim after close of consolidation operations would be clearly barred by Section 49 of U.P.C.H. Act. Paragraph No.18 of the judgment rendered in Abhairaj (supra) is as follows:

"18. Since, no claim was admittedly raised during consolidation operations, any claim after the close of consolidation operations was clearly barred by Section 49 of the U.P. Consolidation of Holdings Act. Moreover, no injunction could be granted regarding land of public utility covered by Section 132 of the U.P. Zamindari Abolition and Land Reforms Act."

15. After considering the provisions of Section 49 of the U.P.C.H. Act as well as after considering the findings of Courts below on the basis of evidence on record it is very much clear that disputed Plot No.146 was recorded as Navin Parti during consolidation operation and no proceeding was initiated by plaintiff during consolidation operation to get the entry corrected, as such, civil suit of plaintiff was rightly held to the barred by Section 49 of the U.P.C.H. Act and no right will accrue to the plaintiff in respect of Gaon Sabha land.

16. So far as the argument advanced by appellant as well as substantial questions of law framed by appellant with respect to Section 123 of U.P.Z.A. and L.R. Act is concerned the perusal of Section 123 of U.P.Z.A. and L.R. Act will be necessary, the Section 123 of U.P.Z.A. and L.R. Act was as follows:

"123. Certain house sites to be settled with existing owner thereof. -[(1)] Without prejudice to the provisions of Section 9, where any person referred to in sub-section (3) of Section 122-C has built a house on any land referred to in sub-section (2) of that section, not being land reserved for any public purpose, and such house exists on [May 13, 2007] the site of such house shall be held by the owner of the house on terms and conditions as may be prescribed.

[(2) Where any person referred to in sub-section (3) of Section 122-C has built a house on any land held by a tenure-holder (not being a Government lessee) and such house exists on [June 3, 1995] the site of such house shall, notwithstanding anything contained in this Act, be deemed to be settled with the owner of such house by the tenure-holder on such terms and conditions as may be prescribed.

Explanation - For the purposes of sub-section (2), a house existing on [June 3, 1995] on any land held by a tenure-holder shall, unless the contrary is proved, be presumed to have been built by the occupant thereof, and where the occupants are members of one family by the head of that family.]"

17. After reading the provisions of Section 123 of U.P.Z.A. and L.R. Act and considering the revenue entry of Navin Parti in respect to disputed Plot No.146 as well as considering the plaint allegation that disputed land is Abadi of the plaintiff but the same was wrongly recorded as Navin Parti during partal of consolidation operation, there will be no application of Section 123 of U.P.Z.A. and L.R. Act. In the present dispute as the land in dispute was recorded as Navin Parti in the revenue record during consolidation operation, as such, the argument advanced on behalf of appellant has no merit and the substantial question of law also does not arise with respect to benefit of Section 123 of U.P.Z.A. and L.R. Act.

18. So far as case law cited by learned counsel for the appellant are concerned that will not apply in the present dispute as all the three case law relates to Abadi land and order was passed by consolidation Courts with respect to title of Abadi land, as such, this Court has held that in respect to Abadi land title cannot be adjudicated by consolidation Court rather consolidation Court can only order to make entry of the nature of land as Abadi.

19. So far as the maintainability of civil suit in respect of the land which is not recorded in the name of plaintiff the civil suit will not be maintainable at the instance of the plaintiff as held by Apex Court in the case of Shri Ram Vs. First Additional District Judge and Others, J.T. 2001 (2) S.C. 573. The Paragraph No.7 of the judgment of Shri Ram (supra) is as follows:

"7. On analysis of the decisions cited above, we are of the opinion that where a recorded tenure holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession."

20. Apex Court again in the Case of Kamla Prasad and Others Vs. Krishna Kant Pathak and Others (2007) 4 Supreme Court Cases 213 has followed the decision of Shri Ram (supra), the Paragraph Nos.12, 13 and 16 of the judgment of Kamla Prasad (supra) are as follows:

"12. Having heard the learned advocates for the parties, in our opinion, the submission of the learned counsel for the appellants deserves to be accepted. So far as abadi land is concerned, the trial Court held that Civil Court had jurisdiction and the said decision has become final. But as far as agricultural land is concerned, in our opinion, the Trial Court as well as Appellate Court were right in coming to the conclusion that only Revenue Court could have entertained the suit on two grounds. Firstly, the case of the plaintiff himself in the plaint was that he was not the sole owner of the property and defendant Nos. 10 to 12 who were proforma defendants, had also right, title and interest therein. He had also stated in the plaint that though in the Revenue Record, only his name had appeared but defendant Nos. 10 to 12 have also right in the property. In our opinion, both the Courts below were right in holding that such a question can be decided by a Revenue Court in a suit instituted under Section 229B of the Act. The said section reads thus:

"229B. Declaratory suit by person claiming to be an asami of a holding or part thereof.-

(1) Any person claiming to be an asami of a holding or any part thereof, whether exclusively or jointly with any other person, may sue the landholder for a declaration of his rights as asami in such holding or part, as the case may be.

(2) In any suit under sub-section (1) any other person claiming to hold as asami under the landholder shall be impleaded as defendant.

(3) The provisions of sub-sections (1) and (2) shall mutatis mutandis apply to a suit by a person claiming to be a bhumidhar, with the amendment that for the word 'landholder' the words "the State Government and the Gaon Sabha" are substituted therein."

13. On second question also, in our view, Courts below were right in coming to the conclusion that legality or otherwise of insertion of names of purchasers in Record of Rights and deletion of name of the plaintiff from such record can only be decided by Revenue Court since the names of the purchasers had already been entered into. Only Revenue Court can record a finding whether such an action was in accordance with law or not and it cannot be decided by a Civil Court.

16.The instant case is covered by the above observations. The lower Appellate Court has expressly stated that the name of the plaintiff had been deleted from Record of Rights and the names of purchasers had been entered. The said fact had been brought on record by the contesting defendants and it was stated that the plaintiff himself appeared as a witness before the Mutation Court, admitted execution of the sale deed, receipt of sale consideration and the factum of putting vendees into possession of the property purchased by them. It was also stated that the records revealed that the names of contesting defendants had been mutated into Record of Rights and the name of plaintiff was deleted."

21. In view of ratio of law laid down by Apex Court on the question of maintainability of civil suit by plaintiff who is not recorded in revenue record the civil suit filed by plaintiff cannot be entertained by civil Court.

22. Considering the findings of fact recorded by both the Courts below to the effect the plaintiff is neither owner nor recorded in the revenue records rather disputed plots was recorded as Navin Parti, as such, suit is barred by Section 49 of U.P.C.H. Act. No substantial question of law arises in the second appeal. No interference is required against the impugned judgment and decree passed by Courts below.

23. The present Second Appeal lacks merit and same is hereby dismissed under Order 41 Rule 11 of Civil Procedure Code.

Order Date :-09.09.2022

Rameez