Raj Kumar vs State Of U.P. And 5 Others
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Allahabad High Court

Raj Kumar vs State Of U.P. And 5 Others on 31 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 
Neutral Citation No. - 2024:AHC:101633
 
Reserved on:      07.05.2024
 
						          	Delivered on:      31.05.2024
 
Court No. - 49
 

 
Case :- WRIT - B No. - 52572 of 2014
 

 
Petitioner :- Raj Kumar
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- C.K. Parekh,H.K. Srivastava,Om Prakash Pandey,Ramesh Chandra Tiwari
 
Counsel for Respondent :- C.S.C.,Brij Kumar Yadav,Hari Narayan Singh,Satya Prakash,Vineet Kumar Singh
 

 
Hon'ble Manish Kumar Nigam,J.
 

 1. Heard learned counsel for the parties and perused the record.

2. This writ petition has been filed for following relief:-

"(i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 14.7.2014 passed by Board of Revenue U.P. Allahabad (Annexure No. 1 to the writ petition) in Second Appeal No. 27 of 2005-06 (Sushil Kumar Versus Raj Kumar;

(ii) issue a writ, order or direction in the nature of mandamus restrain the respondents from interfering in the peaceful possession of petitioners over then land in question are not to give effect or implement impugned judgment (Annexure No. 1) to writ petition;"

3. This petition has been filed against the order dated 14.07.2014, passed by Board of Revenue, U.P. Allahabad allowing the second appeal no. 27 of 2005/2006 (Sushil Kumar Vs. Raj Kumar and others).

4. Brief facts of the case are that Suit No. 25 of 1999 was filed by the respondent no. 5-Sushil Kumar against the petitioner under Section 229-B of the U.P.Z.A. & L.R. Act for declaring plaintiff/respondent no. 5 to be the bhumidhar of Gata No. 22 area 0.25 (land in dispute) situated at Village- Kunera, Pargana and Tehsil- Etawah.

5. As per the plaint case, the old number of Gata No.22 was Gata No. 33 which was recorded in the name of Chaudhary Shyam Singh, father of the plaintiff as bhumidhar with transferable rights. Chaudhary Shyam Singh had gifted his properties to his sons including the plaintiff by means of registered gift deed dated 17.11.1958 and the Gata No. 33 came in the share of plaintiff-respondent no. 5 along with other properties. By order dated 08.02.1966 passed by Assistant Consolidation Officer, on the basis of gift deed dated 17.11.1958, the properties of Chaudhary Shyam Singh was distributed among the beneficiaries of the gift deed and name of the plaintiff-respondent no. 5 was recorded exclusively over Gata No. 33. Total area of Gata No. 33 was 0.40. During the consolidation operations in Akar Patr-2, Gata No. 33 was divided into two numbers i.e. Gata No. 33/1 area 0.25 and Gata No. 33/2 area 0.15. Gata No. 33/1 area 0.25 being usar was kept outside the consolidation operations and continued to be recorded in the name of plaintiff-respondent no. 5.  Gata No. 22 which was carved out from Gata No. 33/1 was recorded as Usar. A patta was granted in favour of one Hukum Singh, predecessor in interest of the petitioner by the Gaon Sabha. Gaon Sabha was never the owner of the Gata No. 22 and in case, any entry was made in favour of the Gaon Sabha, the same would not effect the rights of the plaintiff-respondent no. 5. Gaon Saba-opposite party no. 3 in the suit had illegally allotted the plot to Hukum Singh, father of the petitioner claiming the same to be belonging to the Gaon Sabha. Patta granted in favour of Hukum Singh was void ab initio. Neither the opposite party no.1 nor the Gaon Sabha was ever in possession over the Gata No. 22 and it was only the respondent no. 5, who was owner in possession of the Gata No. 22. It was prayed that respondent no. 5 be declared as bhumidhar with transferable rights.

6. The suit was contested by the State of U.P. and others and ultimately by order dated 31.08.2004, the suit filed by the respondent no. 5 was dismissed on the ground that the land in dispute was recorded in the name of Gaon Sabha as usar and the respondent no. 5/ plaintiff had not raised any objection during consolidation operations for correction of incorrect entry in the name of Gaon Sabha during consolidation operations, the suit filed by the respondent no. 5 is barred by Section 49 of the U.P. Consolidation of Holdings Act. Against the judgment and decree dated 31.08.2004, the respondent no. 5 filed first appeal which was also dismissed by the Additional Commissioner by its order dated 31.01.2006 affirming the order passed by the Trial Court. Against both the orders passed in the suit as well as in the first appeal, the plaintiff-respondent no. 5 filed a second appeal before the Board of Revenue and the said appeal was allowed by the Board of Revenue by its judgment and decree dated 14.07.2014. The orders passed by the court below dated 31.08.2004 and 31.01.2006 were set aside and the suit of the plaintiff-respondent no. 5 was decreed. It was directed that the land in dispute be recorded in the name of plaintiff-respondent no. 5 as bhumidhar with transferable rights and in case, the petitioner-opposite party is in possession the same also be handed over to the plaintiff-respondent no. 5. Hence the present petition.

7. Contention of learned counsel for the petitioner is that the land in dispute was recorded as usar in the name of Gaon Sabha and since respondent no. 5 had not taken any objection during consolidation operations for correction of entry in the name of Gaon Sabha, therefore the present suit was barred under Section 49 of the U.P. Consolidation of Holdings Act. It has been further contended by learned counsel for the petitioner that since the land was recorded in the name of Gaon Sabha, the Gaon Sabha had rightly allotted the land to Hukum Singh, father of the petitioner and after the death of his father, the petitioner become owner in possession over the land in dispute.

8. Per contra, learned counsel appearing for the respondent no. 5 submitted that Gata No. 33 (old) was the bhumidhari land of the father of respondent no. 5, who had executed a gift deed in his favour on 17.11.1958. Thereafter, by order dated 08.02.1966 passed by the Assistant Consolidation Officer, the same was recorded in the name of the plaintiff as bhumidhar with transferable rights. During the consolidation operations in the form Akar Patra- 2, Gata No. 33 (old) was divided into two Gatas i.e. Gata No. 33/1, 0.25 and Gata No. 33/2, 0.15. Since Gata No. 33/1 area 0.25 was usar, the same was kept outside the consolidation operations and was recorded in the name of Sushil Kumar as bhumidhar. The Gata No. 33/1 area 0.25 (old) was given new Gata No. 22 area 0.25. Since the land in dispute was kept outside the consolidation operations, no objections were filed by the respondent no. 5 during consolidation operations. It has also been submitted by learned counsel for the respondent that in the consolidation Form-41 as well as 42, the Gata No. 22 was recorded in the name of the petitioner. Thereafter, somehow the name of Gaon Sabha was recorded in the revenue records without their being any order passed by the consolidation authorities and taking advantage of the same, the patta was granted by the Gaon Sabha to the Hukum Singh, predecessor in interest of the petitioner. Since the name of the Gaon Sabha was recorded without their being any order passed by the consolidation authorities, the said entry had no value and the Board of Revenue had rightly allowed the appeal filed by the plaintiff. Since the entry in the name of the Gaon Sabha was not recorded during the consolidation operations on the basis of any order passed by the consolidation authorities therefore, the suit filed by the petitioner under Section 229 -B of the U.P.Z.A. & L.R. Act was maintainable and was not hit by Section 49 of the U.P. Consolidation of Holdings Act.

9. The State respondents has also supported the case of the petitioner and contended that the land in dispute belong to Gaon Sabha and has been rightly allotted by the Gaon Sabha in favour of  Hukum Singh, predecessor in interest of the petitioner.

10. With the help of counsel for the parties, I have perused the orders passed by the trial court, the first appellate court and second appellate court. The trial court has framed three issues:-

1- क्या वादी गाटा सं0-22/25 स्थित ग्राम कुनैरा का तनहा मालिक संक्रमणीय भूमिधर हैं ?

2- क्या वादी का दाव 49 च०अ० से बाधित हैं ?

3-क्या विवादित भूत्रि गांव सभा की सम्पत्ति हैं ?

11. The trial court has dismissed the suit without recording findings on the issues framed by the trial court and has merely recorded a finding that contention of the plaintiff that plaintiff is the bhumidhar with transferable rights of the disputed land is not correct as the land in dispute is recorded as usar in the name of Gaon Sabha and during consolidation operations, the plaintiff has not taken any action for correction of entry and therefore, the suit is not maintainable and barred by Section 49 of the U.P.C.H. Act. No finding has been recorded on the issues raised by the plaintiff by the trial court. The appellate court has not decided any issues and has merely recorded a finding i.e. the land was recorded in the name of the Gaon Sabha and the same was not got corrected by the plaintiff-respondent no. 5 during consolidation proceedings, therefore, the suit is barred by Section 49 and no illegality has been committed by the trial court in dismissing the suit.

12. The second appellate court framed the following substantial questions of law:-

"1- क्या वाद धारा 49 उ०प्र० जोत चकबन्दी अधिनियम 1953 से बाधित हैं ?

2- क्या अधीनस्थ न्यायालयों द्वारा वाद एवं अपील निरस्त कर विधिक त्रुटि की गयी हैं ?"

The second appellate court had recorded a finding that father of the plaintiff-respondent no. 5 was the owner/bhumidhar of old Gata No. 33, which was given to the plaintiff-respondent no. 5 by his father by a registered gift deed dated 17.11.1958 and after an order was passed on 08.02.1966 by the Assistant Consolidation Officer, the properties were divided among the brothers and Gata No. 33 came in the share of the plaintiff. Gata No. 33/1 area 0.25 being usar was kept outside the consolidation proceedings. It has also been held by the second appellate court that no evidence has been filed by the defendants to prove that how the name of Gaon Sabha was recorded over the Gata No. 33/1 (old) and 22 (new), which was recorded as usar during consolidation operations and therefore, it was established that the entry of the Gaon Sabha had been made without any order. From the evidence on record, it was proved that appellant/ respondent no. 5 was bhumidhar with transferable rights and Gaon Sabha had no title over the property in dispute therefore, suit was not barred by Section 49 of U.P.C.H. Act. It had also been held by the second appellate court that the plaintiff was able to prove his title and the courts below have erred in dismissing the suit and appeal. A further finding was recorded by the second appellate court that since the land in dispute was not the property of the Gaon Sabha and therefore, allottee i.e. father of the petitioner could not have any right by an allotment made by the Gaon Sabha in his favour.

13. Learned counsel appearing for the petitioner as well as learned Standing Counsel representing the State could not point out any order by which the name of the Gaon Sabha was recorded over the land in dispute. Since the entry in favour of Gaon Sabha was without any order passed by the consolidation authorities therefore, subsequent revenue entries in favour of Gaon Sabha were without any basis and the Gaon Sabha had no right to allot the land to one Hukum Singh, the predecessor in interest of the petitioner. The respondent no. 5 had proved by cogent evidence that the land in dispute Gata No. 33/1 (old) 22 (new) was the bhumidhari land of his father, which was gifted to him by his father by gift deed dated 17.11.1958 along with other properties and which came in share of respondent no. 5 and was recorded in his name by order dated 08.02.1966 passed by Assistant Consolidation Officer. Land being usar was kept outside the consolidation operations but continued with the respondent no. 5. There is no evidence on record to demonstrate as to how and when the name of Gaon Sabha was entered over the land belonging to the respondent no. 5.

14. Since the entry in the name of Gaon Sabha was made without their being any order passed by competent consolidation authorities in their favour, there was no occasion for the respondent no. 5 to have moved an objection before the consolidation courts for correction of entry, which is evident from Form-41, Form 42 and Form-2 annexed along with the counter affidavit filed by respondent no. 5. Therefore, I am of the opinion that the suit was not barred by Section 49 of the U.P. Consolidation of Holdings Act.

15. In view of the discussions made above, no illegality has been committed by the second appellate court in allowing the appeal of the respondent no. 5. Consequently, the writ petition fails and is dismissed.

Order Date: 31.05.2024

Nitika Sri.

(Manish Kumar Nigam,J.)