Allahabad High Court
Ram Pal Singh And Others vs Board Of Revenue And Others on 13 January, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On:1.12.2022
Delivered On:13.1.2023
Court No. - 7
Case :- WRIT - B No. - 13299 of 2012
Petitioner :- Ram Pal Singh And Others
Respondent :- Board Of Revenue And Others
Counsel for Petitioner :- Dr. G.S.D. Mishra,Binod Kumar Tripathi,R.K. Dwivedi
Counsel for Respondent :- C.S.C.,Anshu Chaudhary,D.D. Chauhan,Manoj Kr. Mishra
Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. V. K. Agnihotri and Sri Binod Kumar Tripathi, counsel for the petitioners, learned Standing Counsel for respondent nos.1 & 2, Mr. K. K. Singh, counsel for respondent no.3- Gaon Sabha and Mr. Anshu Chaudhary, counsel for respondent Nos. 5, 6, 9 & 10 only.
2. Brief facts of the case are that father of petitioner nos.1 & 2, namely, Nannoo Singh and petitioner nos.3 & 4 have filed a Suit No.9 of 1982, under Section 229B / 176 of U.P.Z.A. & L.R. Act. The family pedigree has been mentioned in paragraph no.2 of the plaint, which is as follows:
छिद्दू सिंह
___________|______________
| |
नत्थू सिंह जालिम सिंह
| |
विधवा द्रोपा ______________|_________
| | |
नन्हू सिंह रूप सिंह हरी सिंह
| ________|__________
| | | |
| श्रीराम भूदेव मान सिंह (मृतक)
_____________________________|________________________
| | | | | |
हृदेश कुमार राजेन्द्र कुमार गजेन्द्र कुमार सर्वेश उर्फ पप्पू राम मूर्ति jktdqekj
3. Disputed property as mentioned in Schedule Ka and Kha in the plaint of Suit No.9 of 1982 was initially recorded in the name of Chhiddu Singh and after death of Chhiddu Singh his sons, namely, Natthu Singh & Jalim Singh were recorded. After death of Nathu Singh, his share was devolved upon his widow Smt. Dhropa Devi. During consolidation operation some part of the land was recorded separately in the name of Dhropa Devi and some part was recorded jointly in the name of Jalim Singh. Dhropa Devi died during life time of Jalim Singh, as such, Jalim Singh became owner of the disputed property. Nannoo Singh , Hari Singh and Roop Singh were sons of Jalim Singh in which Roop Singh died on 11.1.1978 and Hari Singh died on 26.8.1978 during life time of their father Jalim Singh. Jalim Singh died on 8.9.1978. At the time of death of Jalim Singh only one son Nannoo Singh was alive and Man Singh, Bhudeo and Sri Ram became sons of Late Hari Singh in which Man Singh has also died earlier. Hridesh Kumar, Rajendera Kumar, Birjendra Kumar, Sarvesh Kumar, Ram Murti and Raj Kumar became sons of Late Roop Singh. There was equal share (1/3) of three sons of Jalim Singh in the disputed land. Petitioners moved a mutation application which was rejected and respondent nos. 5 to 10 illegally mutated their names in the entire share of Dhropa Devi. The aforementioned Suit No.9 of 1982 filed under Section 229B / 176 of U.P.Z.A. & L.R. Act was decreed vide judgment and decree dated 17.7.1987 by the trial Court. Against the judgment and decree of the trial Court respondent nos.5 to 10 preferred an Appeal No.63 / 1986-87 before the Commissioner. The Additional Commissioner vide judgment and decree dated 17.7.1987 set aside the judgment of the trial Court and remanded the matter back before the trial Court for decision of suit afresh. Against the remand order, trial Court again heard the suit and vide judgment and decree dated 22.8.1988 decreed the suit partly and dismissed in part. Against the judgment and decree of trial Court, petitioners filed an appeal before the Commissioner and Additional Commissioner vide judgment dated 20.3.1991 allowed the appeal and set aside the judgment of the trial Court. Against the judgment of Additional Commissioner dated 22.8.1988, respondent nos.5 to 10 filed a second appeal before the Board of Revenue who vide judgment dated 19.1.2011 allowed the second appeal and set aside the order of the appellate Court dated 20.3.1991 resulting into affirming the judgment of the trial Court dated 22.8.1988, hence this writ petition.
4. This Court while entertaining the writ petition on 11.5.2012 passed the following interim order:
" Issue notice.
Notice on behalf of respondents No.1 and 2 have been accepted by the office of learned Chief Standing Counsel, whereas Shri D.D. Chauhan, Advocate, has pur in appearance for respondent no.3 and Shri Manoj Kumar Mishra, Advocate, for respondent no.4. Therefore, notices need not be served to respondents No.1 to 4 again.
Issue notices to respondents No.5 to 10 through Registered Post returnable at an early date.
Steps be taken within a week.
List this case on the date fixed by the office in the notice. Counter affidavit may be filed by the respondents by the next date fixed."
5. Learned counsel for the petitioners submitted that the Board of Revenue has allowed the second appeal filed by respondent nos.5 to 10 without affording opportunity of hearing to the counsel for the petitioners, as such, the judgment passed by the Board of Revenue shall be treated as ex-parte. He further submitted that the Additional Commissioner has rightly allowed the appeal of the petitioners against the judgment of the trial Court but second appellate Court has not reversed the finding recorded by the Additional Commissioner and set aside the judgment of Court of Commissioner which is illegal and arbitrary. He further submitted that the Board of Revenue has misinterpreted the evidence on record and allowed the second appeal ex-parte. He further submitted that the finding of fact has been recorded by the Court of Additional Commissioner that name of Roop Singh was recorded in the 1372 fasli in place of Dhropa Devi and the plots regarding which the suit under Section 229B /176 of U.P.Z.A. & L.R. Act has been filed on 9.11.1982 fully demonstrates that period of 12 years for adverse possession of the defendants has not been completed, as such, the possession of the defendants with respect to disputed plot is not adverse possession rather plaintiffs and defendants are in joint possession of the disputed land, there was oral evidence of the witnesses on record that plaintiffs and defendants are in possession of the disputed plot accordingly, the appeal was allowed and order of trial Court has been set aside but the Board of Revenue while answering the substantial question of law "whether not the lower Court have appreciated the oral documentary evidence on record in correct perspective of law" has held that first appellate Court has committed illegality in analysing the appeal and documentary evidence in correct perspective, accordingly, the Board of Revenue has allowed the second appeal setting aside the order of Court of Additional Commissioner and affirmed the judgment of trial Court. He further submitted that the impugned judgment of the Board of Revenue be set aside and matter be remitted back to the Board of Revenue to decide the second appeal afresh in accordance with law.
6. On the other hand, learned counsel for the contesting respondents submitted that trial Court has rightly decreed the plaintiffs' suit for part of the land and dismissed the suit for part of the land recording the finding of fact on the issue framed in the suit in respect of property of Schedules Ka and Kha. He further submitted that lower appellate Court by passing cryptic judgment has allowed the appeal and set aside the judgment of the trial Court. He further submitted that the Additional Commissioner has not reversed the finding of fact recorded by the trial Court and allowed the appeal. He further submitted that no point of determination has been framed by the Additional Commissioner while allowing the appeal and by passing cryptic judgment set aside the judgment of the trial Court which was well reasoned judgment. He further submitted that the appellate Court after framing the substantial question of law has replied the same in accordance with law, as such, no interference is required against the impugned judgment of the Board of Revenue and writ petition is liable to be dismissed. He place reliance upon the judgment of Hon'ble Apex Court reported in 1989 AWC 1209, Smt. Gajodhari Devi Vs. Gokul and Another in which it has been held that if at the time of death of original tenure holder the widow of his son was remarried then her right has to be determined with reference to the time when original tenure holder died.
7. I have considered the submission advanced by learned counsel for the parties and perused the record.
8. There is no dispute about the fact that suit under Section 229B / 176 of U.P.Z.A. & L.R. Act has been filed by the father of the petitioner nos.1 & 2 along with petitioner nos.3 & 4, which was dismissed for the property of Schedule Ka and in respect of property of Schedule Kha, Plot No.647, plaintiffs were entitled for 2/3 share and defendant nos.1 to 6 was entitled for 1/3 share, apart from plot no.647 of Schedule Kha property, plaintiffs were entitled for 1/3 share and defendant nos.1 to 6 was entitled for 2/3 share accordingly for Schedule Kha property, plaintiffs' suit was decreed. The first appeal filed at the instance of plaintiffs'-petitioners was allowed and judgment of trial Court has been completely set aside, hence defendants filed second appeal before the Board of Revenue which was allowed setting aside the judgment of Additional Commissioner and affirming the judgment of trial Court.
9. The trial Court while deciding the Issue No.1, 4, 6 & 8 has recorded finding of fact that plaintiffs are not tenure holder of the plots mentioned in Schedule Ka nor plaintiffs are in possession of the same rather defendants are in possession of the same and they have not been dispossessed within period of limitation accordingly, defendants have become owner on the basis of adverse possession of the plots of Schedule Ka. Trial Court has also recorded finding of fact that plaintiff Nanu Singh who was the eldest member of the family has not examined himself in the suit proceeding as such, adverse inference was drawn against the plaintiff.
10. Trial Court while deciding the Issue No.3 has recording finding that in respect to Plot No.647 of Schedule Kha, plaintiffs are entitled to 2/3 share and Defendants Nos.1 to 6 are entitled to 1/3 share but in respect of remaining plots of Schedule Kha, plaintiffs are entitled to 1/3 share and Defendant Nos.1 to 6 shall be entitled to 2/3 share. The finding of trial Court was recorded on the basis of oral and documentary evidence of the case but the Additional Commissioner while allowing the appeal of the defendants has allowed the appeal and set aside the judgment of the trial Court without reversing the finding of fact recorded by the trial Court on the basis of oral and documentary evidence, accordingly, Board of Revenue has set aside the judgment of the Additional Commissioner answering the substantial question of law framed in the second appeal to the effect that the first appellate Court has not considered the oral and documentary evidence of the parties in correct perspective.
11. The reversal of the judgment of trial Court by first appellate Court was not proper and legal and for appreciating the same perusal of judgment of first appellate is necessary which is as follows:-
"मैंने mHk;i{k के विद्वान अधिवक्ताओं की बहस सुनी तथा i=koyh का अवलोकन किया।
अपीलकर्ता के विद्वान अधिवक्ता ने अपनी बहस में कहा है कि pdcUnh rd द्रोपा जीवित थी। नत्थू के मरने के बाद द्रोपा us जालिम से धरोना हुआ यह सिद्ध नहीं है और यह भी साबित नहीं है कि द्रोपा से जालिम से iq= पैदा हुआ। यह भी rdZ किया कि कोई लिखित में आपसी समझौता दाखिल ugh है और उसका कब्जा भी साबित नहीं है। रूप सिंह मर गये। यह भी तर्क किया है कि द्रोपा को मरे 50 साल dgk है 1936 में द्रोपा ejh है रूप सिेंह की मृत्यु .. साल से अधिक होनी चाहिए।
प्रतिपक्षी के विद्वान अधिवक्ता द्वारा यह बहस की गई कि जालिम सिंह की पत्नी का नाम कौशल्या था जो जिन्दा थी और उससे नन्नू सिंह व हरी सिंह से पैदा हुये। जालिम सिंह ने आपसी समझौता के बारे में कोई आपत्ति नहीं किया। रूप सिंह एटा कल्केट्रेट में कार्य करता था वह 1978 में मरा और द्रोपा 1964 में मर गई एवं जालिम सिंह 1978 में मरे। द्रोपा के मरने के बाद इन्होंने कोई प्रार्थना-पत्र नहीं दिया। ;g ekeyk विवादित nks [kkrs का है एक में जालिम सिंह .. और दूसरे में जालिम के साथ द्रोपा का नाम था।
पत्रावली का अवलोकन करने पर विदित होता है कि विवादित भूमि पर द्रोपा देवी के स्थान पर रूप सिंह का नाम 1372 Q- में अंकित हुआ है तथा विवादित भूमि के सम्बंध में धारा 229बी/176 दिनांक 9-11-82 में दायर किया गया है जिससे प्रतीत होता है कि 12 वर्ष की fe;kn अनाधिकार कब्जे की बावत् प्रतिवादीगण ने पूरी नहीं की है और वैसे भी विवादित भूमि पर प्रतिवादीगण का vukf/kdkj कब्जा नहीं रहा है अपितु वादीगण एवं प्रतिवादीगण भूमि को शामिल शरीक जोतते हुये चले आ रहे है जिसके कारण प्रतिवादीगण का जबरन कब्जा नहीं माना जा सकता। साक्षियों के कथानानुसार विवादित भूमि पर वादीगण एवं प्रतिवादीगण का कब्जा माना गया है। मैं इस निष्कर्ष पर पहुंचता हूं कि विद्वान परगनाधिकारी का आदेश दिनांक 22-08-1988 स्थिर रखने योग्य नहीं है।
फलस्वरूप अपील स्वीकार की जाती है तथा विद्वान अपर परगनाधिकारी। प्रथम, एटा के आदेश एवं डिग्री दिनांक 22-08-1988 खंडित किया जाता है।"
12. The first appellate Court without considering the oral and documentary evidence on record in accordance with law has reversed the judgment of trial Court and has not recorded finding to the effect that in what manner the suit will be decreed regarding plots of Schedules Ka and Kha.
13. The judgment of first appellate Court has been rightly set aside by second appellate Court resulting into affirming the judgment of trial Court which was passed in accordance with law.
14. The submission of learned counsel for the petitioners that proper opportunity was not afforded to the petitioners before second-Appellate Court while deciding the second appeal is misconceived as the second appellate Court has decided the second-appeal on merit in accordance with law.
15. This Court in the case reported in 1985 R.D. 71 Paras Nath singh Vs. The Deputy Director of Consolidation and others has held that if by setting aside the impugned order another illegal order will be restored then the Court under Article 226 of the Constitution of India should not interfere with the impugned order although the order impugned is illegal or irregular. Paragraph No.21 of the judgment rendered in Paras Nath (supra) is relevant which is as follows:
21. It is, no doubt, correct to say that any order passed without jurisdiction is a nullity and deserves to be quashed. But if as a result of quashing that order another wrong and illegal order would be restored, this Court would refuse to interfere with the impugned order which appears to be quite proper equitable and just order. As mentioned above, the power under Article 226 of the Constitution is devised to advance justice and not to thwart it. To me it appears to be well settled that an order which is illegal cannot be quashed or set aside in writ jurisdiction if quashing of it results in bringing on record another illegal order."
16. Considering finding of fact recorded by the trial Court on the issues framed during trial, there was no scope of interference for the first appellate Court to interfere with the finding of fact recorded by the trial Court by passing cryptic judgment of reversal, as such, the Board of Revenue has rightly allowed the second appeal setting aside the cryptic judgment of the Additional Commissioner by which judgment of trial Court has been set aside. No interference is required against the judgment of the Board of Revenue dated 19.1.2011 as if the judgment of Board of Revenue is set aside then illegal judgment of Additional Commissioner will be restored.
17. The writ petition is devoid of merit and is accordingly, dismissed.
18. No order as to costs.
Order Date :- 13.1.2023
Rameez
