Ram Naresh vs B.R.
2023 Latest Caselaw 4303 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved On:14.12.2022
 
Delivered On:10.02.2022
 
Court No. - 7
 

 
Case :- WRIT - B No. - 4678 of 1989
 

 
Petitioner :- Ram Naresh
 
Respondent :- B.R.
 
Counsel for Petitioner :- S.N.Singh,A.N. Bhargava,Ajay Kumar Banerjee,Anil Kumar Rai,R.N.Singh,Vishnu Singh
 
Counsel for Respondent :- S.C.,A.P. Srivastava,Ajay Kumar Banerjee,Anil Pathak,Manoj Kumar Singh,Prabhakar Singh,Rakesh Pathak,S.P.Singh
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Vishnu Singh, Counsel for the petitioner. Nobody appeared for the contesting respondents.

2. Brief facts of the case are that petitioner filed a suit under Section 229B of the UP Z.A. & L.R. Act claiming co-tenancy right in respect to the plot in suit situated in village Bharlai, Paragna Sheopur, District Varanasi with the allegation that plot in dispute is ancestral and after death of common ancestor plaintiff and defendant no. 1 become owner in possession of the plot in dispute. It is also alleged in the plaint that plaintiff's father deposited the amount and obtained bhumidhari sanad on 10.01.1950 but after death of plaintiff's father the name of defendant no. 1 was only recorded in the revenue records hence the suit. Defendant-respondents filed written statement in the aforementioned suit denying the plaint allegations and in the additional statement it has been alleged that plaintiff has surrendered the land in question in 1912 and since then respondents have been in continuous possession of the plot in question. It is further alleged that on the basis of surrender of the land plaintiff's rights has been extinguished. Trial Court vide judgment and decree dated 16.02.1976 dismissed the plaintiff's suit. Against the decree of the Trial Court dated 16.02.1976 petitioner filed an appeal before the Commissioner which was allowed vide judgment dated 14.10.1977. Against the judgment of the First Appellate Court dated 14.10.1977 second appeal No. 15 of 1977-78 was filed before the Board of Revenue by the defendants, the second appeal No. 15 of 1977-78 was heard by Board of Revenue and vide order dated 31.07.1978 allowed the second appeal setting aside the judgment and decree of First Appellate Court and the judgment of the Trial Court was affirmed. Against the judgment of Second Appellate Court dated 31.07.1978 petitioner filed Writ Petition No. 9421 of 1978 which was allowed by this Court vide judgment dated 25.09.1985 and remanded the matter before the Board of Revenue to decide the second appeal afresh in accordance with law. After remand order dated 25.09.1985 passed by this Court second appeal was heard by Board of Revenue afresh and vide judgment dated 28.12.1988 the second appeal was allowed again setting aside the judgment and decree of First Appellate Court date 14.10.1977 hence this writ petition. This Court while entertaining the writ petition on 28.03.1989 passed the following interim order:

"Issue notice.

Till further orders of this Court, the operation of the order dated 28.12.1988 passed by respondent no.1 shall remain stayed."

3. In pursuance of the order dated 28.03.1989 contesting respondents put in appearance through Counsel and filed counter-affidavit. Petitioner has filed his rejoinder-affidavit also to the counter-affidavit filed by respondent no. 4.

4. Counsel for the petitioner submitted that plot in dispute is ancestral and placed the following pedigree in order to demonstrate that plaintiff Ram Naresh was co-sharer/co-tenant of the plot in dispute:-

 

 
Sahai Kurmi
 
                                           |
 
                                                                                           
 
|                                        |                                    |Ganesh	                    Mahesh                         Chauti	     |  					                                       |  
 
                                                                                         |                                                                 |                    |
 

 
Pudin							Sukkhu       Kalu
 
|  								      |  
 
Ramu (defendant)		              Ram Naresh (plaintiff)
 

5. Counsel for the petitioner further submitted that Board of Revenue has committed manifest error of law in accepting the case of surrender when all the courts had held that property is joint and comes down from a common ancestor and the case of surrender had been rejected by this Hon'ble Court. He further submitted that Second Appellate Court has no jurisdiction to reappraise the evidence and interfered with the finding of fact recorded by First Appellate Court. He further submitted that First Appellate Court after considering the evidence on record has recorded finding of fact that merely because the petitioner's father started living in his Sasural his valuable right will not be extinguished but the Board of Revenue has erred in holding otherwise. He further submitted that possession of one co-sharer is the possession of all over the joint land as such the finding with respect to possession could not be interfered with in second appeal. He further submitted that the admission of the petitioner was considered even by this Court while deciding the writ petition filed by the petitioner against the order of Board of Revenue and has held that it did not make out a case of ouster. He further submitted that impugned order passed by the Board of Revenue is wholly illegal, without jurisdiction and manifestly erroneous as such the same is liable to quashed. learned. Counsel for the petitioner placed reliance upon the judgment reported in 1966 ALJ 1063 Bechu Vs. Board of Revenue & Ors 1982 RD 217 Jaggu & Anr. Vs. Deputy Director of Consolidation 2017 (6) ADJ 356 (DB) Ram Briksha & Anr. Vs. Deputy Director Consolidation and Ors.

6. I have considered the arguments advanced by learned Counsel for the petitioner and perused the record.

7. There is no dispute about the fact that petitioner and respondent no. 4 are Co-Bhumidhar of the plot in dispute. There is also no dispute about the fact that suit under Section 229B of U.P. Z.A. & L.R. Act filed by the petitioner was dismissed by the Trial Court but in the first appeal the decree of the Trial Court was reversed and plaintiff's suit was decreed. There is also no dispute about the fact that in second appeal the Board of Revenue has set aside the judgment and decree of First Appellate Court and restored the decree of the Trial Court. There is also no dispute about the fact that in writ petition filed by petitioner against the judgment of the Second Appellate Court, the judgment and decree of the Second Appellate Court was set aside and the matter was remanded back before the Second Appellate Court to decide the second appeal afresh but the Second Appellate Court again allowed the second appeal affirming the judgment of the Trial Court by which the plaintiff's suit was dismissed.

8. The plaint allegation as set up in the suit was that parties are co-sharer as such the plaintiff is entitled to the co-tenancy right in the disputed plot. So far as the plea of ouster is concerned, there was no plea regarding that in the written statement as such Board of Revenue had no jurisdiction to entertain the plea in the second appellate jurisdiction and dismissed the plaintiff's suit. This Court while allowing the writ petition against the first order of the Second Appellate Court has recorded finding that the word ouster has not been used in the written statement nor such a plea was specifically raised in the written statement.

9. So far as the plea of surrender of the land in dispute by the plaintiff is concerned, this plea has already discussed by the Trial Court while deciding the suit. Decision of trial court on issue No. 3 relating to plea of surrender as set up by defendant is relevant for perusal which is as under:-

"वाद विन्दु संख्या-3"

प्रतिवादी की ओर से असल दस्तवरदारी दि० 10.1.1912 नविस्ता सुखू बहक युद्धदीन प्रस्तुत की गई है दस्तबरदारी के हासिये के गवाह रामदेव डी०डब्लू०3 को भी प्रतिवादी की ओर से प्रस्तुत किया गया है। वादी की ओर से केवल इस दस्तबरदारी का तहरीर करना अस्वीकार किया है।

इस सम्बन्ध में मैंने दोनों पक्षों के विद्वान वकीलों के तर्क ध्यान पूर्वक सुने हैं। वादी के विद्वान वकील का तर्क है कि कथित दस्तबरदारी पूर्णतयः फर्जी है तथा में पढ़ने व कत्तई मानने योग्य नहीं है विद्वान वकील का तर्क है कि रामदेव गवाह स्वयं अपनी जन्म तिथि 1901 ई० बताता है यदि कथित दस्तबरदारी 1912 में लिखी गई थी तो उस समय यह गवाह मात्र 11-12 साल का रहा होगा। ऐसी स्थिति में यह दस्तावेज स्वयं फर्जी सिद्ध हो जाता है। विद्वान वकील का दूसरा तर्क है कि दस्तबरदारी 200 रूपया में लिखी गयी थी। न तो उसे रजिस्टर्ड कराया गया था और न वह कभी कागजात माल में एक्ट बयान हुई विद्वान वकील के खतोनी 1356 फ० जो वादी ने प्रस्तुत की है की और ध्यान आकर्षित करते हुये कहा है कि यदि कथित दस्तबरदारी वास्तव में सही होती तो 1356 फ० मैं सुखूँ असल तनाह कास्तकार दर्ज न होगा।

प्रतिवादी के विद्वान वकील का तर्क है कि दस्तबरदारी 30 वर्ष पुराना document है इसलिये उसे evidence में पढ़ा जाना चाहिये। विद्वान वकील ने यह भी तर्क किया है कि भारतीय गवाह प्रायः अनपढ़ होते हैं अतः उन्हें सन् आदि का सही ज्ञान नहीं होता। डी०डब्लू 3 रामदेव ने जहां अपना 1901 ई० में होना बताया है वही अपनी आयु 84 वर्ष होना भी कहा है। उससे स्पष्ट है कि उसे अपनी जन्म की सन् सही नहीं मालूम। विद्वान वकील ने रजिस्ट्री न कराये जाने के सम्बन्ध में कोई संतोषप्रद तर्क नहीं किया है जहां तक इस दस्तबरदारी के एक्ट अपान होने का सम्बन्ध है प्रतिवादी के विद्वान वकील ने कहा है कि कागजात माल में लगातार प्रतिवादी का यह नाम चला आना व तनाह काविज रहना स्वयं दस्तबरदारी की existence व उस पर Act upon करने की बात सिद्ध करते हैं।

दोनों पक्षों के विद्वान वकीलों को सुनने तथा सम्बन्धित साक्ष्य को देखने से उपरान्त में यह निष्कर्ष निकालता हूँ कि कथित दस्तबरदारी technically proved नहीं है न apparently act upon की गई है न evidence में पढ़ने योग्य है। दस्तबरदारी पर आधारित प्रतिवादीगण का case technically proved नहीं होता। प्रश्नगत वाद विन्दु इसलिये नकारात्मक निर्णीत किया जाता है।

10. Since the First Appellate Court has recorded finding of fact while allowing the appeal of the plaintiff and decreeing the plaintiff's suit that plaintiff and defendant are member of the family and possession of one co-sharer is possession of all, as such merely by living/residing in the Sasural, the plaintiff will not be deprived of his right in the plot in dispute, the findings recorded by the First Appellate Court will be relevant for perusal, which is as follows:-

"वाद बिन्दु नं० 3 में अवर न्यायालय ने तनकीह बनाई है कि क्या सुक्खू ने आराजी निजाई में अपना कुल हक व हिस्सा बहक पुदीन पिता प्रतिवादी को दस्तवरदारी कर दी थी। इस वाद विन्दु का भी निर्णय अवर न्यायालय ने यह किया है कि कथित दस्तवरदारी प्रमाणित नहीं है। यह वाद विन्दु नकारात्मक में निर्णय किया गया है जब उपरोक्त दो तनकीहों पर फैसला वादी के पक्ष में हुआ है तब फिर वादी के दावा को मन्जूर करने में अवर न्यायालय को जो एतराज हुआ है उसको सावधानी से देखना पड़ेगा। दस्तवरदारी के दस्तावेज को अवर न्यायालय ने फर्जी होल्ड किया है दस्तवरदारी 200/- में लिखी गयी थी ऐसा कहा गया है परन्तु न तो उसे रिजस्टर्ड कराया गया और न तो उसका कभी कागजात में इन्द्राज हुआ। वादी के पिता सुक्खू 1356 फ० तक असल काश्तकार दर्ज हैं। दस्तवरदारी के आधार पर प्रतिवादीगण का केस प्रमाणित नहीं होता। परन्तु अवर न्यायालय पर इस बात का प्रभाव जरूर पड़ा है कि प्रतिवादी अर्सादराज से तनहा काविज चला जाता है और वादी के दावे से तमादी खारिज हो गया है क्योंकि वादी के पिता सुक्खू ससुराल चला गया था और इस कारण लम्बे अर्से से उसका आराजी निजाई से कोई संबंध नहीं रहा। इस कारण प्रतिवादी कब्जा मुखालिफाना से तनहा मालिक हो चुका है और दावा टाइमवार्ड है। जो महत्वपूर्ण तनकीह हैं। उन पर अवर न्यायालय का आदेश वादी के माफिक होने पर भी वादी के पिता का दूसरे गॉव में चला जाना, अपने ससुराल में जाकर रहने लगा इसे बड़ा अपराध माना गया कि उसके दावे में तमादी खारिज हो गयी। जबकि ससुराल किसी फारेन कन्ट्री में नहीं है और न वादी के पिता की नागरिकता में कोई अन्तर आया है यह भारत के आंचलिक प्रदेशों की पिछड़ी हुई जन भावना का फल है कि ससुराल को भी परदेश मान बैठे और ससुराल जाने से आदमी अपना हक खो बैठता है।

मैं वादी के पिता का ससुराल में जाकर रहने से कोई ऐसा अनुचित या गैर कानूनी बात नहीं देखता जिससे उसका अधिकार गायब हो जाय और वादी का दावा कामयाब न हो सके। सहकाश्तकारों में जो मोखसी जायदाद होती है उस पर एक का कब्जा सबका कब्जा माना जाता है। अतः रामू का नाम लिऐ जाने से या उसका कब्जा रहने से वादी के कब्जा पर कोई प्रतिकूल असर नहीं पड़ता। तस्तवरदारी की बात गलत सावित हुई है। सच बात तो यह मालूम होता है कि प्रतिवादी वादी के भोलेपन का नाजायज फायदा उठा करके उसका हक मारना चाहता है। अतः मुझे अवर न्यायालय का आदेश गलत मालूम होता है।

उपरोक्त विवेचना के अनुसार में इस अपील को मन्जूर करता हूं, अवर न्यायालय का आदेश रद्द किया जाता है और वादी प्रतिवादीगण के साथ सहसीरदार घोषित किया जाता है। हिस्से का प्रश्न धारा 229 बी जेड०ए०एण्ड एल०आर० एक्ट के मुकदमें में नहीं उठाया जा सकता। अतः इस पर निर्णय देना आवश्यक नहीं है।

दिनांक 14.10.77					(आर०एन०मिश्रा)
 
							अतिरिक्त आयुक्त"
 

 

 
11. The Second Appellate Court has exercised his second appellate jurisdiction and allowed the second appeal which has been mentioned by this Court while allowing the writ petition No. 9421 of 1978 filed by petitioner vide order dated 25.09.1985, the relevant portion of the judgment of this Court regarding exercise of the second appellate jurisdiction is as follows:-
 

"The question now arises as to which court should be directed to give a fresh decision. The first appellate Court has decreed the suit. I see no reason as to why the petitioner should be deprived of the finding given by the first appellate court in his favour. I, therefore, consider it appropriate Court in his favour. I, therefore, consider it appropriate that the Board of Revenue should be hear the appeal and give a fresh decision."

12. The case law cited by learned counsel for the petitioner in Bechu (supra), Jaggu (supra) and Ram Briksha (supra), are relevant for consideration.

13. In Ram Briksha (supra), it has been held by the Division Bench of this Court that right of co-sharer will not be defeated due to non-claiming of partition of joint share and separate cheque in joint property during consolidation proceeding and even the right of co-sharer will not come to an end under Section 49 of the U.P. Consolidation of Holdings Act. Paragraph No. 36 to 39 of the judgment 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."

14. The Apex Court in the case of Karbalai Begum Vs. Mohd. Sayeed & Anr. reported in AIR 1981 SC 77 has also discussed the plea of Section 49 of U.P. Consolidation of Holdings Act as well as the right of co-sharer in respect to the joint property, the Paragraphs No. 12 to 15 of the judgment rendered in Karbalai Begum (supra) are as follows:-

"12. The last ground on which the High Court non-suited the appellant was that after the chakbandi was completed under the U.P. Consolidation of Holdings Act, the suit was barred by s. 49 of the said Act. It is well settled that unless there is an express provision barring a suit on the basis of title, the courts will not easily infer a bar of suit to establish the title of the parties. In Subha Singh v. Mahendra Singh & Ors. this Court made the following observations:-

"It was thus abundantly clear that an application for mutation on the basis of inheritance when the cause of action arose, after the finalisation and publication of the scheme under Section 23, is not a matter in regard to which an application could be filed "under the provisions of this Act" within the meaning of clause 2 of Section 49. Thus, the other limb of Section 49, also is not attracted. The result is that the plea of the bar of the civil courts' jurisdiction to investigate and adjudicate upon the title to the land or the sonship of the plaintiff has no substance."

13. In view of the clear decision of this Court, referred to above, the High Court erred in law in holding that the present suit was barred by s. 49 of the U.P. Consolidation of Holdings Act.

14. Thus, the grounds on which the High Court reversed the decision of the District Judge are not sustainable in law and the judgment of the High Court cannot be allowed to stand.

15. We, therefore, allow the appeal with costs throughout, set aside the judgment of the High Court, decree the plaintiff's suit for joint possession as far as plots Nos. 201 and 274 are concerned and restore the judgment of the District Judge. The cost allowed by this Court would be set- off against the sum of Rs. 15,000/- (fifteen thousand only) deposited by the respondents in the High Court and paid to the appellant and the balance may be refunded to the respondents."

15. On the point of exercise of Second Appellate Court jurisdiction, this Court in the case reported in 1985 RD 93 Sharda Devi Vs. Board of Revenue U.P. & Ors. has held that Second Appellate jurisdiction shall not be exercised to set aside the finding of fact recorded by courts below on the basis of evidence however grossly erroneous they may appear. Paragraph No. 17 & 24 of the judgment are relevant which are as follows:-

"17. There is a string of decisions i.e. Afsar Sheikh v. Sulemanbibi [(1976) 2 SCC 142 : A.I.R. 1976 S.C. 163.] , Ladhi Prasad v. Karnal Distillery Co. Ltd. [A.I.R. 1963 S.C. 1279.] , Mst. Rajraniv. Rajaram [A.I.R. 1980 All. 2020.] , and Kharbuja Kuer v. Jang Bahadur [A.I.R. 1963 S.C. 1203.] , and on the basis of ratio of these cases it is clear that finding that no fraud or collusion was proved by Respondent Nos. 2 to 6 are findings of fact and the Board of Revenue has exceeded its jurisdiction under Section 100 C.P.C. to set aside these findings of fact. In view of the provisions of Section 331(4) of the Act second appeal would lie only on the question of law and not on the question of fact, hence Board of Revenue has clearly committed an error apparent on the face of record in setting aside the findings of fact recorded by first appellate Court and the trial Court about fraudulent nature of transaction. Further just on suspicion it cannot be assumed nor findings of fact can be set aside but the Board of Revenue has held that "there appears to be some suspicion that after the decree in suit under Section 176 of the Act why should successful party enter into compromise, surrender the rights in suit under Section 229-B of the Act, but the trial could not judge the evidence of the parties. But if the convenience of parties lay in entering into compromise subsequently, Board of Revenue should not stand in the way." It is well known that bad compromise is better than a good law suit. In case the vendees have entered into compromise admitting claim of petitioner hence they had do rights in the plots to execute the sale deed in favour of respondent Nos. 2 to 6.

24. 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."

16. It is material that plot in dispute is ancestral one and acquired by common ancestor Sahai Kurmi. It is also material that plaintiff and defendant are co-sharer, the plea of surrender set up by the defendant has not been proved as such the plaintiff is entitled to the decree of ½ share in the plot as held by first Appellate Court vide judgment and decree dated 14.10.1977 as well as in view of ratio of law laid down by Apex Court in Karbalai Begum (supra) and this Court in Ram Briksha (supra). So for as scope of suit under Section 229B of U.P.Z.A. and L.R. Act is concerned as well as limitation for filing suit under Section 229B of U.P.Z.A. & L.R. Act is concerned this Court in the case reported in 2005 (99) RD 529 Pan Kumari Vs. Board of Revenue U.P. at Allahabad & Ors. has held that there is no limitation for filing suit under Section 229B of U.P.Z.A. & L.R. Act, the Paragraph No. 6 of the judgment is 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 Limitation 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 other 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 excepted. 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 v. Board of Revenue 1985 Rev Dec. 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 Section 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 129 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."

17. Considering the entire facts and circumstances, as well as ratio of law laid down by this Court as well as by Apex Court, the judgment passed by Board of Revenue dated 28.12.1988 allowing the second appeal of contesting respondent and dismissing the plaintiff's suit for co-tenancy right for ½ share, cannot be sustained in the eye of law, accordingly, impugned judgment dated 28.12.1988 passed by Board of Revenue, Allahabad (Annexure 5 to the writ petition) is liable to be set aside and the same is hereby set aside.

18. The writ petition stands allowed.

19. The judgment of the First Appellate Court dated 14.10.1977 passed by Additinal Commissioner, Varanasi Division, Varanasi is hereby affirmed.

20. No order as to costs.

Order Date :- 10.02.2023

Rameez/Salman