Pratap Narain vs Board Of Revenue And Others
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Allahabad High Court

Pratap Narain vs Board Of Revenue And Others on 8 January, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:4044
 
Court No. - 50
 
Case :- WRIT - B No. - 16648 of 2000
 
Petitioner :- Pratap Narain
 
Respondent :- Board Of Revenue And Others
 
Counsel for Petitioner :- H.O.K.Srivastava
 
Counsel for Respondent :- C.S.C.,Narayan Dutt Shukla,R.C.Singh,Rituvendra Singh Nagvanshi,S.K.Singh,Suresh Chandra Varma,V.K.Singh,Veer Singh
 
Hon'ble Chandra Kumar Rai,J.
 

1. Heard Mr. C. S. Agnihotri, learned counsel for the petitioner, Mr. R.C. Singh, Learned Senior counsel assisted by Mr. Narayan Dutt Shukla, learned counsel for respondent nos. 5 and 6 and learned standing counsel for the State Respondent.

2. The facts of the case are that plots in dispute as mentioned in paragraph no. 2 of the writ petition are situated in village Muda Khurd, Pargana- Chandara, Tehsil Misrik, District Sitapur. The family pedigree of the parties is mentioned in paragraph no. 3 of the writ petition filed by petitioner and in paragraph no. 5 of the counter affidavit filed by respondent no. 6. Plaintiffs/respondent nos. 5 and 6 filed a suit under Section 176 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, hereinafter referred to as the UPZA and LR Act on 30th March, 1973 for partition of the holdings claiming, 1/4th share for him, 1/4th share for defendant no. 2 Salik and alleged that Mathura Prasad, father of petitioner Pratap Narayan, has 1/2 share. Defendant no. 1 Mathura Prasad (father of petitioner) filed his written statement denying the plaintiff's allegation stating therein that previous suit filed by plaintiff was dismissed for non-prosecution and no restoration application was filed as such, the subsequent suit is barred under Order 9 Rule 9 of Civil Procedure Code. It has also been alleged in written statement filed by defendant no. 1 that the plots were never recorded in the name of common ancestor Gulab nor holding in dispute was jointly recorded in the name of Chunni Lal and Ram Charan. It is also alleged in the written statement that in khatauni of 1337F, the names of Chunni Lal, Ram Charan and Mohan Lal were separately recorded and they were never joint. It is also alleged in the written statement that land was outside the consolidation scheme as such, no share could be determined/amalgamated under Section 12 of U.P. Consolidation of Holdings Act, hereinafter referred as the UPCH Act. The trial court/Assistant Collector-I Class, Sitapur decreed the plaintiff's suit on 22.04.1978, holding that plaintiff Banwari Lal is entitled to 1/4th share, defendant no. 2 Salik Ram is entitled to 1/4th share and defendant no. 1 Mathura Prasad is entitled to 1/2 share. Against the judgment & decree dated 22.04.1978, petitioner filed an appeal before the Commissioner, Lucknow Division, Lucknow, which was registered as Appeal No. 349 of 1977-78. The aforementioned appeal was heard by Additional Commissioner (Administration) at Lucknow and the same was dismissed vide judgment dated 28.6.1986. Against the judgment of Appellate Court dated 28.6.1986 second appeal was filed on behalf of petitioner, which was registered as Second Appeal No. 38 of 1985-86. The aforementioned second appeal was heard by Member, Board of Revenue, Allahabad, UP and the same was dismissed vide judgment dated 29.2.2000. Hence, this writ petition for following relief:-

a) Issue a writ, order or direction in the nature of certiorari, quashing the impugned judgment dated 29.02.2000 passed by the opposite party No. 1 in Second Appeal No. 38 of 1985-86 (Annexure-8), judgment dated 28.06.1986 passed by the opposite party No. 2 in Appeal No. 349 of 1977-78 (Annexure-6) and the judgment dated 22.04.1978 passed by the opposite party No. 3 (Annexure-5 to this petition).

3. This Court entertained the matter on 6.4.2000 and granted interim order staying the preparation of final decree in the partition suit.

4. In pursuance of the order dated 6.4.2000, parties have exchanged their affidavits.

5. Learned counsel for the petitioner submitted that suit for partition filed by plaintiff/respondent nos. 5 and 6 was not maintainable in view of the entry of 1337F, 1349F, and 1359F. He further submitted that parties were separately recorded for their shares in 1337F, 1349F and 1359F as such, the plaintiff can not maintain the partition and claiming shares in plots in dispute. He further submitted that preliminary decree passed in the partition suit can not be sustained in the eye of law in view of the entry of the plots in dispute. He further submitted that first appeal and second appeal filed by petitioner have also been dismissed in arbitrary manner. He further submitted that the finding recorded regarding Section 49 of the UPCH Act is wholly illegal as there was no adjudication of share during consolidation proceeding. He further submitted that Board of Revenue have illegally held that the petitioner/defendant can file suit under Section 229-B of the UPZA and LR Act rather object in partition suit under Section 176 of UPZA and LR Act. He further placed the averment made in para No. 22 and 23 of the writ petition as well as para No. 18 of the rejoinder affidavit. He further placed reliance upon the following judgment in support of his argument:-

1. Malkhan Singh vs. Sohan Singh and others, AIR 1986 SC 500.

2. United Engineers and Contractors vs. Secretary to Government A.P. and others, 2013 0 Supreme (SC) 1200.

3. Chattar Singh and others vs. Board of Revenue and others, Civil Misc. Writ 2447 of 1974: November 23, 1979 and

4. Budhlal and another vs. Director of Consolidation and others, 1982 RD 324.

He has submitted that impugned judgment passed by respondent nos. 1, 2 and 3 are liable to be set aside and plaintiff's suit is liable to be dismissed.

6. On the other hand, Mr. R.C. Singh, learned senior counsel appearing for contesting respondent nos. 5 and 6 submitted that suit for partition under Section 176 of the UPZA and LR Act was rightly filed before the Revenue Court and trial court has rightly passed the preliminary decree in the partition suit. He further submitted that suit is not barred by principle of resjudicata as mentioned in the written statement. He further submitted that in a suit for partition respondent no. 1 cannot deny the title of the plaintiffs in joint holding. He further submitted that petitioner (defendant) is free to file a suit under Section 229-B of UPZA and LR Act for declaration of his right rather object the right and title of the plaintiff in the joint holding. He further submitted that land in dispute was jointly recorded in the name of plaintiff as well as defendants before the Consolidation operation as well as the basic year khatauni also demonstrates that the plot in dispute is joint holding of the parties. He further submitted that no title objection has been filed on behalf of petitioner claiming exclusive right in his favour. He further submitted that it is incorrect to alleged that consolidation court has got no jurisdiction to determine the share of the parties. He further submitted that suit was filed for partition implicitor under Section 176 of UPZA and LR Act as such, the title of the parties cannot be denied in the partition suit. He further placed reliance upon C.H. Form 5 as well as order passed during consolidation proceeding in order to demonstrate that there is no illegality in the impugned orders. He further submitted that the Court has passed preliminary decree determining the share of the parties in the year 2000 and petitioner has got the further proceeding stayed in the instant petition. He further submitted that first appeal and second appeal have rightly been dismissed by first appellate court and second appellate court which requires no interference in exercise of jurisdiction under Article 226 of the Constitution of India. He further submitted that no interference is required against impugned judgement/orders and the writ petition is liable to be dismissed.

7. I have considered the argument advanced by learned counsel for the parties and perused the record.

8. There is no dispute about the fact that in suit for partition filed by petitioner/respondent nos. 5 and 6 a preliminary decree was passed by the trial court on 22.04.1978 which has been maintained in the first appeal as well as second appeal.

9. In order to appreciate the controversy the perusal of finding of fact recorded by trial court while passing the preliminary decree will be relevant which is as under:-

" ??? ?????? ?????? 1 ????? 6 (?????? 12-9-73 ????)

?? ??? ???????? ?? ???????? ???????? ???? ???? ?????? ?????? 5-9-74 ??? ???? ?? ???? ??? ?? ???? ???? ????????? ???2 ?? ???? ?? ???? ??? ????? ???? ???? ??????? ???? ?? ?? ???? ???? ??? ?? ?????? ?? ????????? ?? ??? ????????? ?? ???? ?? ?? ???? ???? ?? ???? ??? ????? ?? ???? ?? ???? ?? ?? ????????? ???1 ?? ??????? ??? ???? ?? ????????? ??? ????? ?? ???? ??? ????? ?? ???? ?????? ???? ???? ?? ???? ????? ??? ???? ?? ????? ??? 1 ?? ???? ?????? 30-2-64 ?? ????????? ????? ?? ??? ?? ??? 1371 ???? ?? ????? ?? ?? ???????? ????????? ???????? ?? ??? ???? ?????? ???? ?? ?? ?? ??? ????? ???? ???? ??? 70 ??? ????? ??? ????? ?? ???? ??? ?? ???? ???? ??? ??????? ??? ?? ????? ??? ????? ?? ???? ??? ?? ???? ???? ??? ?????? ? ????? ??? ?? , ??? ??? ????? ?????? ?? ??? ?? ???? ??? ??? ?? ????? ?????????? ????? ??? ?? ???? ????? ?? ?? ?????? ???? ?? ?? ??????? ?? ??? ????? ??? ????? ?????? ??????? ?? ??? ????? ?? ?? ????? ???? ???? ?? ????? ??????? ??????? ??? ????? ?? ????? ?? ???? ?? ??? ???????? ???? ?? ???? ??? ????? ?? ????? ?? ??? ??????? ???? ???? ?? ???? ???? ????? ?????? ????? ??? 1376, 1378 ???? ?? ???? ????????? ???? ?????? ????? ?? ?? ??? ????? ????? ???? ???? ??? 115 ??? ????? ?? ??? ???? ??? ??? ??????? ???? ?? ?? ?? ???????? ???? ??? ?? ???? ? ??? ??????? ??????? ?? ???????? ???? ??? ??????? ???????? ?? ???? ?? ??????? ??? ???? ???? ?? ?????? ????? ??? ?? ???? ?? ?????? ???? ?? ????? ????????? ???1 ?? ?? ???? ?? ?? ?????? ??????? 28,33,255,260,261,120 ??? 122 ???? ??? ?? ?? ?? ???? ???? ? ????????? ???1 ?? ???-??? ??? ?? ?????? ???? ??? ???? ???? ?? ????????? ???1 ?? ???? ???? ??? ????? ?? ??? ??? ???? ??? ????????? ???1 ?? ??? ???? ?? ??? ?????? ??? ??? ??? ???? ? ????????? ???2 ?? ?????? ???? ??? ?? ?????? ?? ???? ??? ????????? ?? ???? ?????? ??? ??? 1337 ???? ?? ????? ?? ??? ????? ?? ??? ?????? ?? ????? ?? ??? ?? ?? ??? ???? ??? ??? ??? ? ?????? ??? ?? ???-??? ???? ?? ?? ???? ??? ?? ???? ????? ??? ???? ??? ????????? ???2 ?? ????????? ???1 ?? ???????? ??? ?? ????? ????? ?? ????? ?? ????????? ???1 ?? ??? ?? ?????? ???? ???? ??? ??????? ?? ????? ?? ?????? ???? ??? ?? ???? ??? ????? ?????? ?? ?? ?? ????? ???? ??? ???? ??? ???? ??? ?? ??????? ???? ??? ??? ??? ???? ???? ???? ???? ?? ??? ?? ?? ????? ??? ????? ???? ?? ?? ???? ??? ?? ???? ????????? ?? ???? ?????? ?? ?? ???? ??? ???? ?????? ?????? 52,55,132,137,139,46,464,490, ??? 504 ????????? ???1 ?? ???? ??? ??? ?? ??? ????? ??? ??? ????? ???? ?? ???? ??? ?? ?????? ?? ???????? ???? ?? ?? ???? ???? ???? ??? ?? ??? ??? ??? ????? ?? 226 (?????? ??? 254 ) ???? ??? ?? ??? ???? ??? ?????? ??? 214 ?? ???? ??? ?? ???? ????? ?? ?? ???? ??? ?? ???? ??? ??? ?????? 11 ? 105 ?? ?? ??? ????? ??? ???? ?????? ???? ??? 1337 ?? ??? ???? ??? ?? ???? ??? ??? ?????? ??? 502 (?????? ??? 522) ?????? ?? ???? ??? ????? ??? ??? ?????? ?????? ?????? 498 (?????? ??? 516) ?? ??? ???? ????????? ????? ?? ???? ?? ?? ??? 498 ? 502 ???? ??? ?????? ?? ???? ?? ?????? ?? ????? ???? ?? ?? ??? 1337???? ?? ??? ?? ?? ????????? ?? ?? ???????? ?????? ?????? ?? ?? ?? ?? ?? ????? ???? ?? ???? ?? ????????? ?? ??? ?? ????? ??? ????????? ?? ??? ?? ??? ????????? ??? ??????? ???? ???? ?? ????? ???? ?????? ?? ?? ???? ??? ?? ?????? ???? ?? ????? ?? ??? ?????? ???? ?? ????? ???? ???? ?? ????? ???? ????? ?? ???? ??? ????? ?? ?? 100 ???? ???? ?? ??????? ?? ???? ?? ?????? ? ????? ?? ??? ???? ??? ??? ??? ??????? ??? ???? ??? ?? ????? ?? ??? ???? ??? ?? ???? ?? ?????? ?? ????? ?? ? ?? 100 ???? ???? ?? ?????? ????? ?? ? ??? ???? ??? ???? ???? ?? ???? ????? ???? ?? ?????? ????? ??? ???? ???? ??? ?? ?? ????? ?? ????? ????? ??? ?? ??? ???? ?? ?? ? ????? ????????? ???1 ?? ??? ???????? ????? ?? ??? ?? ?????? ??? ?? ???????? ?? ??????? ??? ?? ????? ???? ?? ??? 1371 ???? ?? ????? ??????? ????????? ?? ?? ???????? ?? ??????? ??? ???????? ??????? ??????? ?? ????? ???? ??? ?? ????? ??? ?? ?? ???????? ????? ?? ???? ?? ???? ???? ???? ?? ??? ?? ???? ???? ???? ?? 1970 ?????? ??? 413 ?? 1972 ?????? ??? 69 ?? ????? ??? ?? ?? ????? ?????? ??? 1371 ???? ?? ????? ?? ???????? ?? ?????? ????? ??? ???? ???? ?? ???? ? ????????? ???1 ? ????????? ???2 ?? ??????? ??????? ???? ??????? ????????? ???2 ?? ??? 6 ?? ???????? ?? ????????? ??? ???? ??? ????? ????? ?? ???? ?????? 20-2-64 ??? ???? ?? ??? ? ????????? ???2 ?? ?? ????????? ???1 ?? ??? ???? ??? ??? ?? ???? ?? ??????? ?? ??? ?????? ???? ???? ???? ?? ?? ??? ?? ?? ?? ?????? ?? ???? ????? ?? ???? ??? ????????? ???1 ?? ???? ?? ???????? ?? ?? ??? ?????? ??? ?? ??????? ???? ???? ????? ??? ???? ?? ??? ?????? ?????? ?? ?????? ?? ????? ?? ??? ???? ?? ???? ?? ??? ?? ?? ????? ??? ???? ?? ?????? ?? ?? ????? ???? ?? ?? ????? ???? ???? ??? ????????? ???2 ?? ???? ?????? ??? ? ????????? ???2 ????? ????????? ???1 ?? ??? ????????? ??? ?? ?? ???? ?? ????? ???? ??? ?? ???? ???? ??? 72,76,74, 145,226, 228 ???? ??? ?? ?? ?? ???? ?????? ?? ??????????? ?? ???? ? ????????? ???1 ?? ???? ??? ??? ???? ?? ?? ??? ?? ??? ???? ?? ?? ?? ??????? ?? ????? ????? ???? ?? ????? ???? ??? ?????? ?? ???? ????????? ?? ??? ???? ??? ?? ??? ??? ?? ?? ???? ????????? ???2 ????? ???? ??? ?? ???? 6 ???????? ?? ????????? ???1 ?? ??? ????????? ?? ?? ??? ???? ????? ????????? ??? 1 ?? ?? ?? ? ?? ??? ?? ?? ????????? ???1 ?? ?? ?????????? ???? 49 ??? ??????? ??????? ?? ????? ???

??? ?????? 7:-

??????? ???????? ?? ?? ??? ???? ?? ?? ??????? ???? ??? ???? ?????? ?? ??? ????????? ???2 ????? ??? ?? ??? ??? ??? ??? ????????? ???2 ????? ?????? ?? ???

???????? ??? ?????? ???4 ( ?????? 28-10-76):-

???? ???1 ?? ????????? ?? ??? ???? ???? 9 ?????? ?? ????? ??? ????????? ???1 ?? ?? ??????? ??? ???? ?? ???? ???? ??? ????? ???? ?????? ?????? 9-4-67 ? ?? ???? ??? ???? ?????? 13-6-67 ?? ???? ????????? ????? ?? ??? ?? ???? ????? ???????? ?? ???? ?? ?? ??? ???????? ?? ???? ??? ?? ??? ?????? ???? ????? ???? ?? ???? ?? 1964 ???????? ???????? ??? 3637 ??? ????? ???? ??? ??? ???? ?? ????? ???? ?? ???? ???? ??? ??? ?? ?? ??????? ?? ??? ??????? ???? ?? ?????? ???? ??? ?? ???? ??????? ??? ??? ??? ??? ???? ??? ????? ??? ????? ??? ??? ?? ??????? ???? ???? ?? ???? ??? ?? ???? ?? ?? ??? ??? ??? ?? ???? ?? ?? ??????? ???? ???? ????? ?? ?? ??? ?????? ?? ?? ??? ??? ???? ???? ?????? ?? ????? ???? ?????? ???? ?? ??????? ??????? ???? ??? ????? ???? ????? ???? ???? ?? ??????? ???? ?? ?? ??? ?? ??????? ?? ??? ????- 176 ?? ????????? ??? ???? ?? ??? ??? ????? ??? ???? ????? ?? ???? ?? ????????? ?? ???? ???? ?? ??????? ????? ?? ?????? ?????? ???? ?? ????? (?? ?????? ????? ?? ??? ??? ?? ??? ???? 9 ???? 9 ?????? ?? ???????? ????? ???? ???? ?????? ??????? ?? ??? ??? ?? ???? ??? ?????? ???? ???? ???"

10. Perusal of finding of fact recorded by trial court fully demonstrate that there is no illegality in passing the preliminary decree in the partition suit.

11. In view of the orders passed during consolidation proceeding as well as Revenue entry of the plots in question, the suit for partition filed by respondent nos. 5 and 6 cannot be dismissed by Revenue Court on the ground that plaintiff/respondent nos. 5 and 6 have no right and title in the plot in dispute. The Board of Revenue has rightly held that for claiming exclusive right in the disputed plot, the petitioner/defendant can file a suit for declaration rather object in the partition suit filed by respondent nos. 5 and 6.

12. Considering the finding of facts recorded by trial court, first appellate court, second appellate court as well as the order passed during consolidation proceeding, there is no scope of interference by this Court under Article 226 of the Constitution of India to interfere with the preliminary decree passed by trial court in the partition suit under Section 176 of the UPZA and LR Act.

13. There is no merit in the writ petition and the same is dismissed, accordingly. The trial court is directed to conclude the proceedings of partition suit expeditiously.

14. No order as to costs.

Order Date :- 8.1.2025

Vandana Y/v.k.updh.