Brahma Deo Singh vs D.D.C.And Others
2023 Latest Caselaw 34765 ALL

Allahabad High Court

Brahma Deo Singh vs D.D.C.And Others on 12 December, 2023

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:235196
 
Court No. - 48
 

 
Case :- WRIT - B No. - 4524 of 1978
 

 
Petitioner :- Brahma Deo Singh
 
Respondent :- D.D.C.And Others
 
Counsel for Petitioner :- Krishan Ji,Gautam,Krishnaji Khare,Manoj Kumar Singh,Mrityunjay Khare,Satyendra Singh
 
Counsel for Respondent :- N.S. Chaudhary,Anshu Chaudhary
 

 
Hon'ble Saurabh Shyam Shamshery,J.
 

Order on the Delay Condonation Application No.6 of 2023

1. Heard.

2. Cause shown is sufficient.

3. Delay condonation application is allowed.

Order on the Substitution Application No.7 of 2023

1. Heard.

2. Application is allowed, subject to payment of cost of Rs.500/- to be deposited in the Bank account of High Court Bar Association, Allahabad, receipt of which shall be placed on record.

3. Let substitution be carried out during course of the day.

Order on the Memo of Petition

1. In the present case following dates and events are not in dispute.

2. The petitioner has made a claim on land in dispute on basis of a verified sale deed dated 27-02-1967 executed by father of the respondent no.2 in his favour.

3. On 27-02-1967 the vendor has deposited twenty times of rent in order to get Bhumidhari Sanad.

4. The concerned Tehsildar passed an order dated 01-03-1967 to issue a Bhumidari Sanand which was later on issued on 05-09-1967.

5. After the sale deed was executed and before the Sanad was issued, vendor died on 05-03-1967.

6. The Consolidation Officer after considering rival submissions accepted objections filed by the petitioner and on basis of sale deed directed that revenue entries be made in favour of the petitioner. The relevant part thereof is mentioned hereinafter:-

"???? ?? ?? ?????? 27-2-67 ?? ???? ??? ?????? ????? ???? ?? ?? ?? ?????? ????? ??? ?? ?????? ?????? ?? ??? ????????? ????? ? ???? ??? ???? ?? ???? ???? ?? ?????? 27-2-67 ?? ?????? ?? ?????? ?? ?????? ?????? ????? ?? ??? ???? ?? ????? ?? ??? ??? ?? ????? ?? ???? ?? ?? ?? ?? ????????? ??? ?????? ?? ???? ?? ????? ?? ????????? ? ??????? ?? ??? ??????? ??? ?? ??? ?????? ?? ?????? ???? ?? ?? ?????? ?????? ????? ?? ?? ?????? ?? ????? ????? ?? ??? ????? ???? ??? ?? ???? ?????????? ??? ????????? ?? ?? ?? ????? ??? ?? ????????? ?????? ???? ???? ?? ??? 12, ???? ?? ???? ?????? ?? ?? ???? ??? ????? ??? ? ????? ????? ?????? ?? ?????? ?? ?? ?? ???? 154 ??????? ????? ?? ???????? ?????? ???? ????? ??? ?? ??? ?????? ???? ??? ???? ?? ?? ?????? ???????? ????? ???? ??? ????????? ????? ??????? ?????? ?? ???? ????? ??? ????????? ?? ?????? ? ?????? ???????? ?? ??????? ???? ???? ?? ?? ?????? ?? ?????? 27-2-67 ?? ?????? ???? ????? ?? ??? ???? ?? ???? ???? ?? ????? ?? ?? ????? ????? ?? ????? ???? ????????? ??? ?? ??? ????????? ?? ??? ???? 1370 ?? 1377 ?? ????? ??? ???? ???? ?? ?? ????? ???? ???? ??? ?? ?????? 1376 ?? ?? ???? ?? ????? ?? ??? ?????? 387622 ?????? 5-9-76 ?? ??? ????? ?? ???? ?? ????? ?? ????????? ????? ????? ?? ??????? ???? ?? ??? ?? 1376 ?? ?? ??????? ?? ?? ???? ??? ????????? ???? ?? ??? ??????? ???? ????? ?? ????? ???? ?? ?????? ?? ?????? 27-2-67 ?? ?????? ???? ??? ???? ????? ???? ?? ?? ?? ?? ????? ???? ???? ???

X X X X X X X

(1) ???? ??? ?? ???? 61 ?? ???? 81/2/46 ???? 1-66 ??????? ?? ???? ???? ?? ???? ??? ??? ??? ?????? ????? ??? ?? ??? ????? ???? ????????? ????? ????????? ???? ?????? ????????? ????? ?? ?????? ???? ?????? ???? ???? ???? ?? ??? ?????? ?? ???? ?? ?????? ???? ???"

7. The respondent thereafter filed an appeal which was rejected by an order dated 27-10-1976 and relevant part thereof is mentioned hereinafter:-

"????????? ?? ?? ?? ??? ???? 1370 ????, ??? 1380 ??, ??????? ??????? 1375 ?? ????? ???? ??? ??, ?? ????????? ?? ???? ???? ???? ???

???????????? ?? ?? ?? ??? ?????? ?????? 27-2-67 ??????? ?????? ??? ?????? ????? ??????, ?????? ? ????????? ??????? ?????? ???? ???? ??? 81/2 ????????? 0-46 ???, ??? ???? ??????? ???? ?????? ? ??????? ??? ?????? 5-9-67 ????? ???? ???, ?? ?????? ?? ???? ???? ???? ??, ??? ???????? ? ????????? ????? ?? ???? ????? ???

???? 1370 ?? ?? 1380 ???? ??? ???? ?????? ?? ??? 1370?? 1373 ???? ?? ????? ??, ?? 1374 ???? ?? ????????? ????? ?????? ?? ??? ????? ??? ??????? ??????? 1375 ???? ??? 20???? ??? ???? ?? ????? ??? ????????? ?? ???? ???? ??? ??? ?? ?? ???? ???? ?? ??? ?????? ???? ???? ??, ?????? ????????? ???????? ?????? ?????? 27-2-1967 ???????? ?? ????? ??, ????? ???? ????? ?? ???? ???????? ? ????????? ????? ?? ????? ???? ??, ?? ????????? ?? ???? ?? ???? ??? ????????? ?????? ?? ?? ????????? ?????? ???? ?? ????? ??? ??? ??? ???? ?? ?? ?? ????? ????? ???? ??? ????? ???? ????? ???? ?? ??? ?????? ????????? ?????? ?? ??????? ??? ???? ??? ???? ??????? ?? ?????? ?? ?? ?????? ?????? 5-3-67 ?? ??? ?? ???? ???? ????? ?? 20 ???? 5-9-67 ?? ??? ?? ????, ?? ?? ?????? ??? ???? ?? ???? ??????, ???? ?? ???????? ??? ??? 71 ????? 883 ?????? 1960 ????? 271, ??? ??? 1971????? 518, ? ?????? 1971 ????? 375 ?? ?????? ????? ????? ?????? ?? ???? ??????? ??? ?? ?????? ???????????? ?? ??? ?? ???? ?? ???? ???? ?? ??? ?? ?????? ?? ?????? ???? ?? ???, ????? ?? ?????? ??? ??, ?? ???????? ??? ????? ?? ?????????? ????? ??? ???

?????? 1970 ????? 221 ?? ?? ?? ?????? ?? ?? ?????? ???????? ?? ?????? ?? ?????? ???? ?? ??? ?????? ???? ??? ??? ?????? ???????? ?? ?????? ?? ???? ??? ???????? ?? ?? ?? ????? ???? ???? ?? ???? ?????? ?????? ?? ??? ????? ??, ?? ?? ???? ?? ??? ??? ?? ??? ????????? ?? ??????? ???????? ?? ?????? 1966????? 332, ?????? 1975 ????? 22, ?????? 1971 ????? 37 ? ?????? 1971 ????? 369 ?? ????? ???? ??, ?? ?? ??????? ????? ??? ???? ???? ???? ???

??????? ?????? ?? ???? ?? ??? ?? ???????? ?? ??????? ??? ?? ????????? ???? ?? ????? ???? ??? ?????? ??? ?? ???? ??? ??? ?? ???? ???"

8. The revision-petition filed by the respondent was allowed by order dated 07-02-1978 and relevant part thereof is mentioned hereinafter:-

"??? ???? ???? ???? ???? ????????, ????? ???? ???????, ????? ?????? ?????, ????? ?????? ???? ??????? ??? 1370 ?? ?? 1380?? ?? ?????? ????? ???? ?????? 81/2 ???? 46 ??? ?????? ?? ??? ????? ??? ?? ???? 1374 ?? ??? ????????? ????? ?????? ?? ??? ????? ??- 1380 ?? ?? ?? ???? ???? ????????? ?? ??? ????? ??? ? ??? ??? ?????? ???? ?????? 27-2-67 ???????? ??, ?????? ?? ??? ?? ?????? ?? ?? ?????? ????? ??? ?? ?????? ????????? ????? ? ??????? ?? ?????? ?? ???? ?? 500/- ????? ??? ???? ????????? ???? ????? ?????????? ? ??? ??? ? ??? ?????? ????? ?? ?????? ???? ?? ?? ??? ??? ????? ?????? ??????? ???? ??? 1967 ?? ???? ????? ???????? ????? ?????? ??????? ?????? ?????, ????? ??? ???????? ???? ??????? ?? ?????? ?? ?? ?????? ??? ????? ??? ??? 65???? ?? ?????? ?????? 5-3-67 ?? ???? ?? ?? ???? ??? ????? ???? ????? ???????? ?? ??? ???? ?????? ?? ???? ??? ?????? 5-9-67?? ??????? ?? ??? ???? ????? ??????? ???? ?? ??????? ??? ?? ???? ?????? 27-2-67 ?? ??? ??? ??? ??????? ????? ????????? ?? ?? ?????? ??? ????? 578 ?????? ???? ?? ?????? ??????? ????? ?????? ????? ??????? ????????? ??? ?? ?????? ???????? ???? ??? ????? ??? ??? ?? ?? ?? ??????? ?? ??????? ?? ?????? ??????? ???? ?? ??? ????????? ???? ???????? ???? ??, ??? ???? ???? ??????????? ?? ?????? ???? ??, ?? ?? ?? ?? ??? ?????? ???? ???? ??? ???? ?????? ???? ??? ????? ?????? ???????? ??????? ??????? ??? ???? ????? ??????? ?? ????????? ?? ????? ???? ???? ?? ??? ??????? ?? ???? ??? ??????? ?? ?????? ?? ??????? ??? ?????? ???? ??????? ???? ???? ???? 137 (1) ?? ?????? ????? ???????? ???????? ?? ???? ?? ???????? ?? ??????? ?? ?????? ??????? ????? ????? ?? ?????? ????? ????? ?????????? ??? ????????? ???? ???????? ?? ???? ?? ?????? ????, ??? ?????? ?? ?????? ???? ???? ??? ?? ?????? ?? ?????? ?? ?????? ???? ?????? ????? ?????? ???? ??? ??????? ?? ???? ??? ???? ???? ?? ???? ??? ??????? ????? ?????? ???????? ?????? ?????? 1968 ????? 99 ??? ?? ??? ??? ??? ?? ?? ??? ??? ???????? ?? ?????? ?? ??????? ???????? ?? ??? ?? ?? ???????? ?????? ???? ??? ??, ????? ???? ???????? ????????? ???? ?? ?????? ???? ??????? ??? ??? ????? ??? ??????? ?? ??? ???????? ?? ????????? ??? ???? ?????? ???? ??????? ??????? ????? ?? ?? ?? ?????? ?????? 1976????? 250, 251 ???????? ???? ???, ?????? ?? ????????? ????? ???? ?? ?????? ?? ??? ??? ???????? ????? ??? ?????? ????? ??? ?????? 27-2-67 ?? ?????? ??? ???????? ??? ??? ??????? ?? ?????? ??????? ???? ?? ??? ??? ???? ???? ??? ???? ?? ?? ??? ?? ??? ????????? ?? ??? ????? ???????? ?? ???? ????? ?? ??????? ?????? 5-9-67 ?? ??? ???????? ??? ?? ??? ?? ????? ?????? 5-3-67 ?? ???????? ???? ?????? ???? ?? ?????? ?? ???? ??? ??????? ????? ????????? ?????? ?? ????? ??, ?? ???????????? ?? ??? ??? ??????????? ???? ???? ??? ????? ?? ???? ????? ?????? 5-9-67 ?? ???? ?? ??? ??? ??????? ???????????? ????????? ?? ???? ??? ???? ?????? ? ?? ???????? ?? ???? ???? ???????? ?????? ?????? ?? ?????? ?? ?????? ??? ????? ???? ?????? ??????? ?????? ???? ?????? 27-2-67 ??????????? ????????? ??? ??? ???????? ?? ?? ?????? ?? ????? ? ???? ?? ?????? ???? ?? ?? ???? ??? ??????? ??? ????? ???? ?????? ???? ???? ??? ?? ???? ???? ???? ?? ?? ???? ?????? 81/2(00-46) ?? ???????????? ????????? ????? ?????? ?? ??? ??????? ?? ?????? ?? ????? ???? ????"

9. Learned counsel for the petitioner submits that findings returned by the revisional authority that since the Sanand was issued after death of vendor, therefore, sale deed executed by him would have no legal consequence.

10. Learned counsel for the petitioner further submits that aforesaid findings are perverse and illegal and has placed reliance on a judgment passed by the Apex Court in the case of Deo Nandan and another vs. Ram Saran and others, (2000) 3 SCC 440 as well as passed by this Court in the case of Har Saran Vs. Board of Revenue, U.P. Allahabad and others, 2004(4) AWC 3764 and Ram Swarup Vs. Ram Nath, 1960 R.D. 271. The relevant part of the above referred judgments are reproduced hereinafter:-

Deo Nandan & Another (supra):-

" 7. Section 134, from its plain language, indicates and shows that on the application being made and 10 times the land revenue being paid, the sirdar becomes entitled 'with effect from the date on which the amount had been deposited' to a declaration that he has acquired the rights mentioned in Section 137 of the Act. The Section clearly specifies the date with effect from which the rights would stand acquired: The date is the one on which the amount contemplated by Section 134 is deposited. This clearly obviates the uncertainty of the point of time when the title is transferred by fixing the dateas being the one when the amount is deposited. It would be immaterial as to when the declaration under Section 137 is made because that declaration must necessarily take effect from the date when the amount is deposited.

8. Whatever little doubt there may be in this construction of section 134 is eliminated by the perusal of sub-section (2) of Section 137. It is to be noticed that, as observed by the lower appellate court, that before amendment in 1962, sub-section (2) of Section 137 of the Act provided that it is only upon the grant of certificate under sub-section (1) of Section 137 that the sirdar shall from the date thereof become or be deemed to be a bhumidarof the holding or the share in respect of which the certificate has been granted. The amendment of sub-section (2) of section 137 by the Amendment Act 21 of 1962 with effect from 13th December, 1962 brought Section 137(2) in line with Section 134. The two provisions read together clearly provide that as and when the certificate under Section 137 is granted, it must relate back and be effective from the date on which the amount referred to in sub-section (1) of Section 134 has been deposited.

9. It is no doubt true that in the Full bench decision in Banshidhar Vs. Smt. Dhirajadhari and Others (supra), in the Single Judge decision in Mobin Khan Vs. Chunnu Khan and Others (supra) and in the decision in Raghunandan Singh and another Vs. Vashwant Singh, 1978 Revenue Decisions 183, a different view has been expressed by the Allahabad High Court. In the Full Bench decision, the view taken is that it is from the date when the order is passed under Section 137 that the sirdar becomes a bhumidar. In the latter two cases, it has been held that if after filing of the application and making payment of the land revenue the applicant dies, then certificate in his name cannot be granted. In our opinion, the said decisions run counter to the plain language and meaning of Sections 134 and 137 as they stood at the relevant point of time. When a certificate is issued under Section 137, it in fact recognises the position as on the date when the application was made and the payment contemplated under Section 134(1) was deposited. The certificate, in other words, will have a retrospective effect and would relate back to the date of the application. There was nothing to prevent the revenue authorities from allowing the application filed under Section 134(1) on the day when it was presented. The underlying intention of the legislature, therefore, clearly is that as and when the said application is accepted and order is passed under Section 137, it must relate back to the date when the application was filed. Such a situation is not unknown to law. Mr. Prem Prasad Juneja, Learned counsel for the appellants, as an analogy, has drawn our attention to order 22 Rule 6, C.P.C. which provides that if any of the parties to a suit dies after the hearing has been completed and before the judgment is pronounced, the suit would not abate. The doctrine of relation back has been incorporated in Sections 134 and 137 of the U.P. Zamindari Abolition and Land Reforms Act."

Har Saran Vs. Board of Revenue, U.P. Allahabad (supra):-

"6. Having considered the arguments of the learned counsel for the parties, I am of the view that the issue canvassed in this petition stand clinched by a decision of the Apex Court in Deo Nandan v. Ram Saran (2000 All LJ 856) (supra). Relevant portion of paragraph 9 of this decision being germane to the controversy involved in this petition is excerpted below for ready reference

?When a certificate is issued under S. 137, it in fact recognises the position as on the date when the application was made and the payment contemplated under S. 134(1) was deposited. The certificate, in other words, will have a retrospective effect and would relate back to the date of the application. There was nothing to prevent the revenue authorities from allowing the application filed under S. 134(1) on the day when it was presented. The underlying intention of the Legislature, therefore, clearly is that as and when the said application is accepted and order is passed under S. 137, it must relate back to the date when the application was filed ?"

x x x x x x

7. As a matter of fact, the heirs would derive whatever be their rights, flowing from Ram Ghulam and since Ram Ghulam had already executed a sale deed, and the order of grant of Bhumidhari Sanad had already been passed, it will relate back to the date on which the application was filed and 20 times of land revenue was deposited as observed in the decision of the Apex Court referred to supra."

Ram Swarup (supra):-

" It is quite clear that in the present case the Sirdar deposited the full amunt under Section 134 of U.P. Z.A. & Land Reforms Act and hence he was entitled to a declaration that he had acquired rights mentioned in Section 137 with effect from the date on which the amount had been deposited. If there was any delay, in issuing the Certificate under Section 137 U.P. Zamindari Abolition and Land Reforms Act, the Sirdar should not suffer. The execution of the sale deed is therefore, quite valid. "

11. Learned counsel for the petitioner submits that the bhumidhari sanad would have a retrospective effect and would relate back to the date of the application.

12. Learned counsel for the petitioner has tried to support the impugned order but miserably failed since the above referred legal position is absolutely against the judgment passed by the Revisional Authority. He has also not disputed that UP Act No.8 of 1977, as its interpretation by Supreme Court in Rakesh & Ors. Vs. Board of Revenue (2019) 19 SCC 785 would also not be applicable in present case as Sanad was issued before said Act came into force.

13. Considering the above submissions as well as considering law on point in issue as referred above, I am of the considered opinion that the impugned order is not legally sustainable, therefore, the impugned order 07-02-1978 is set aside and order passed by the Consolidation Officer and appellate authority are upheld and the writ petition is accordingly allowed.

Order Date :- 12.12.2023

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