Allahabad High Court
Talimuddin And 21 Others vs State Of U.P. And 2 Others on 29 July, 2025
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Neutral Citation No. 2025:AHC:124779
Reserved on : 15.07.2025
Delivered on : 29.07.2025
Court No. - 34
Case :- WRIT - C No. - 20244 of 2025
Petitioner :- Talimuddin And 21 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Anup Kumar Srivastava
Counsel for Respondent :- C.S.C.
Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Anup Kumar Srivastava, learned counsel for the petitioners, Sri Manish Goyal, learned Additional Advocate General along with Dr. Rajeshwar Tripathi, learned Chief Standing Counsel for respondent nos. 1 and 2 and Sri Satya Prakash Rai, learned counsel for private respondent no. 3.
2. This writ petition has been filed assailing the order dated 17.05.2025 passed by Joint Magistrate/Sub Divisional Officer, Sadar, Gorakhpur in Case No. 17731 of 2025 (Yogi Kamal Nath vs. State).
3. Petitioners, who are 22 in number, claim that Arazi No. 466/3 was recorded in the name of one Smt. Harnam Kunwari widow of Jaidev Prasad (as Zamindar) and Arazi No. 446/3/2 in Khata No. 88 was recorded in name of Gorakhnath Mandir through its Sarvakar. Grandfather of petitioners namely Sahadat Hussain had purchased land bearing Arazi No. 446/3M measuring 22 decimal (3 kadi) from Smt. Harnam Kunwari. Another registered sale-deed dated 13.12.1962 was registered and grandfather of petitioners exchanged land of Arazi No. 446, measuring 50 decimal 7 kadi; Arazi No. 446K, measuring 33 decimal 8 kadi; Arazi No. 445M measuring 6 decimal 5 kadi; Arazi No. 531 measuring 26 decimal 6 kadi, total area 1 acre 17 decimal 6 kadi from Gorakhnath Mandir through its Sarvakar Baba Naumi Nath Chela Mahant Baba Varam Nath in place of Arazi No. 68 measuring 33 decimal.
4. Sahadat Hussain fied a suit under Section 59/61 of U.P. Tenancy Act, 1939 (hereinafter called as "the Act of 1939") against Smt. Harnam Kunwari. The suit was decreed on 15.06.1966 on the basis of admission by defendant Harnam Kunwari. Sahadat Hussain was held to be hereditary tenant of plot in suit. According to petitioners, Sahadat Hussain filed another case under Section 59/61 of the Act of 1939 against Baba Naumi Nath and the said suit was also decreed on 25.06.1966. Name of grandfather of petitioners was recorded as hereditary tenant in Khatauni in Jamman-8. According to petitioners, the land in dispute is non fertile and used for growing water chestnut (singhara).
5. Petitioners claim to be in possession of the same. On 06.08.2024, an application was moved by private respondent no. 3, Yogi Kamal Nath, Sarvakar of Gorakhnath Temple before respondent no. 2 stating that Arazi No. 446/3/1 measuring 0.137 hectare mentioned in Khata No. 88 is recorded in the name of Mahant Yogi Aditya Nath Khewat Khata No. 1 and Arazi No. 446/3/2 measuring 0.090 hectare mentioned in Khata No. 74 in name of Alok Kumar Srivastava and name of grandfather of petitioners has been wrongly mentioned in Jamman-8 and requested for deleting their name and correcting the Khatauni (record of rights).
6. The application was registered as proceedings under Section 59 of the Act of 1939. A report was called by Sub Divisional Officer which was submitted through Tehsildar, Sadar, Gorakhpur recommending to cancel the name of grandfather of petitioners in Jamman-8. On 24.10.2024, an order was passed expunging the name from revenue records. The said order was challenged through Writ-C No. 40941 of 2024 and co-ordinate Bench of this Court on 10.01.2025 while allowing the writ petition set aside the order and directed respondent authorities to initiate proper proceedings in accordance with law and decide the same. The order dated 10.01.2025 is extracted hereasunder:-
"1. Heard learned counsel for the petitioner, Shri Manish Goyal, learned Additional Advocate General assisted by learned Chief Standing Counsel for the State-respondents and perused the record.
2. This petition has been filed for the following relief:
"I. issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 24.10.2024 passed by the Joint Magistrate/ UP Ziladhikari, Sadar, Gorakhpur in Case No. 37779 of 2024 (Computerized Case No. T202405310337779) (Yogi Kamal Nath Versus State) under Section 59 U.P. Kastkari Act, 1939."
3. Contention of the learned counsel for the petitioner is that an order under Section 59 of U.P. Tenancy Act, 1939 has been passed against the petitioner without even issuing notices to the petitioner and a long standing revenue entry in favour of the petitioner has been expunged by an ex-parte order.
4. Learned Additional Advocate General though opposed the writ petition but could not demonstrate that the order was passed after hearing the opposite party who was recorded tenure holder.
5. Since, the order has been passed without issuing notices to the petitioner in violation to the principles of natural justice, no useful purpose would be served in keeping this petition pending.
6. In view of the above, the order dated 24.10.2024 passed by respondent no. 2 i.e. Joint Magistrate/ UP Ziladhikari, Sadar, Gorakhpur in Case No. 37779 of 2024, is set aside.
7. However, liberty is provided to the respondents to initiate proper proceedings in accordance with law and decide the same after providing opportunity of hearing to the petitioners and reasonable opportunity to lead evidence in support of their case.
8. Accordingly, the writ petition stands allowed. "
7. Post remand, respondent no. 3 moved an application on 13.01.2025 for deciding the matter afresh. Notices were issued on 21.01.2025 and report of Sub-Registrar was called. On 23.01.2025, Sub-Registrar, Sadar, Gorakhpur submitted his report that alleged sale-deed dated 13.12.1962 was not registered and is not available on record. The respondent no. 2 on the same date found that no document was produced by petitioners in respect of agricultural work being done over the land in dispute, thus, proceeded to expunge the name from Jamman-8 where the name was recorded as hereditary tenant.
8. Petitioners challenged the order dated 23.01.2025 before this Court through Writ-C No. 9372 of 2025 and by order dated 03.04.2025, the writ petition was allowed and order dated 23.01.2025 was set aside by co-ordinate Bench and the matter was remanded back to respondent no. 2 to decide afresh. Further, opportunity was given to petitioners to file their objections on or before 15.04.2025 along with evidence in support of their claim. The order dated 03.04.2025 is extracted hereasunder:-
"1. Heard learned counsel for the parties and perused the record.
2. This writ petition has been filed seeking following relief :-
"issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 23.1.2025 passed by the Joint Magistrate/ UP Ziladhikari, Sadar, Gorakhpur in Case No. RST/37779/2024 T202405310337779) (Computerized Case No. (Yogi Kamal Nath Versus State) under section 59 U.P. Kastkari Act 1939.
issue a writ, order or direction in the nature of mandamus directing the respondent No.2 not to dispossess the petitioners from the land in dispute in pursuance of the impugned order dated 23.1.2025"
3. Contention of learned counsel for the petitioners is that earlier order was passed on 24.10.2024 by respondent No.2 under Section 59 of the U.P. Tenancy Act, 1939. The said order was ex parte and, therefore, the petitioners filed writ petition no.40941 of 2024, which was allowed and the matter was remanded to decide afresh after providing opportunity of hearing and reasonable opportunity to lead evidence in support of their case by order dated 10.1.2025. The order dated 10.1.2025 is quoted as under :-
"1. Heard learned counsel for the petitioner, Shri Manish Goyal, learned Additional Advocate General assisted by learned Chief Standing Counsel for the State-respondents and perused the record.
2. This petition has been filed for the following relief:
"I. issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 24.10.2024 passed by the Joint Magistrate/ UP Ziladhikari, Sadar, Gorakhpur in Case No. 37779 of 2024 (Computerized Case No. T202405310337779) (Yogi Kamal Nath Versus State) under Section 59 U.P. Kastkari Act, 1939."
3. Contention of the learned counsel for the petitioner is that an order under Section 59 of U.P. Tenancy Act, 1939 has been passed against the petitioner without even issuing notices to the petitioner and a long standing revenue entry in favour of the petitioner has been expunged by an ex-parte order.
4. Learned Additional Advocate General though opposed the writ petition but could not demonstrate that the order was passed after hearing the opposite party who was recorded tenure holder.
5. Since, the order has been passed without issuing notices to the petitioner in violation to the principles of natural justice, no useful purpose would be served in keeping this petition pending.
6. In view of the above, the order dated 24.10.2024 passed by respondent no. 2 i.e. Joint Magistrate/ UP Ziladhikari, Sadar, Gorakhpur in Case No. 37779 of 2024, is set aside.
7. However, liberty is provided to the respondents to initiate proper proceedings in accordance with law and decide the same after providing opportunity of hearing to the petitioners and reasonable opportunity to lead evidence in support of their case.
8. Accordingly, the writ petition stands allowed. "
4. After the order dated 10.1.2025, it appears that an application was moved by respondent No.3 on 13.1.2025 on which 21.1.2025 date was fixed in the matter. On 21.1.2025, petitioners appeared before respondent No.2 and filed certified copy of the order. On 23.1.2025, two days thereafter, again order has been passed against the petitioners.
5. Contention of learned counsel for the petitioners is that despite a direction given by this Court to provide opportunity of filing an objection as well as reasonable opportunity to lead evidence, the entire proceedings have been concluded within two days.
6. Shri Manish Goel, learned Additional Advocate General has though opposed the prayer but could not deny the fact that the entire proceedings have been concluded within two days.
7. From the facts, as has come before this Court, it is apparent that this order is passed with undue haste and without granting proper opportunity to the petitioner, and therefore, I am of the view that order cannot be sustained and the order dated 23.1.2025 is hereby quashed and the proceedings are remitted to respondent No.2 to decide afresh. It is further provided that petitioners will file their objections on or before 15.4.2025 and will also file evidence in support of their claim. After submission of objections and evidence, proceedings shall be concluded by respondent No.2 after providing opportunity of hearing to all the concerned parties.
8. With these observations, the writ petition stands allowed."
9. It appears that petitioners, thereafter, filed an impleadment application as well as application under Order IX Rule 13 CPC. They also filed their detailed objection along with evidence, such as, Khatauni for Fasli 1415, 1391, 1377 and 1927 and also certified copy of sale-deed dated 12.12.1962 and 13.12.1962 as well as the orders passed under Section 59/61 dated 15.06.1966. By order impugned dated 17.05.2025, respondent no. 2 has cancelled the name of Sahadat Hussain from Jamman-8. Hence, this writ petition.
10. Learned counsel for the petitioners submits that the entries are long standing and the matter has already attained finality between the parties as in proceedings initiated under Section 59/61 both against Harnam Kunwari and Gorakhnath Temple, compromise decree was passed in the year 1966 and since then grandfather of petitioners is recorded as hereditary tenant. According to him, the land is barren and was used for growing water chestnut (singhara), thus, respondent no. 2 could not have cancelled the entry which has been already settled through a declaratory suit which cannot be questioned in summary proceedings. In the written argument filed by petitioners, in para no. 6, it has been specifically stated that petitioners were not cultivating the land and it was vacant and the nature of the land is pond, while some part is plain. According to him, application dated 06.08.2024 could not have been entertained and long standing entry should not have been expunged by respondent no. 2 treating it to be an application under Section 33/39 of Land Revenue Act, 1901.
11. Lastly, it was emphasized that once Sahadat Hussain was declared as a hereditary tenant with the land in dispute and a detailed order was passed in the year 1966, the same cannot be challenged and questioned in summary proceedings like this.
12. Sri S.P. Rai, learned counsel appearing for private respondent no. 3, Yogi Kamal Nath opposed the writ petition on the ground that the claim of petitioner itself is barred by provisions of Section 30 of the Act of 1939 as petitioners claim the land used for growing water chestnut (singhara).
13. According to him, no rights of hereditary tenant would accrue in terms of Section 29. Moreover, explanation to sub-section (3) of Section 4 provides that when a land has remained uncultivated for a period of 7 years, it shall be deemed to have not been previously cultivated. He then submitted that land in question does not belong to petitioners and the entries are standing wrongly for which the application was moved for expunging the name of Sahadat Hussain.
14. The State Counsel submitted that order in question needs no interference on the ground that Sub-Registrar had already inquired into the matter and found that no such sale-deed as claimed of 1962 was ever executed nor is on record. Moreover, the claim is for exchanging the 113.24 decimal land instead of 33 decimal which is highly improbable. According to him, petitioners were given ample opportunity but they have failed to adduce any document to justify their claim over the wrong entry continuing for so long.
15. I have heard respective counsel for the parties and perused the material on record.
16. Before delving into the issue in hand, a cursory glance of some of provisions of the Act of 1939 is necessary for resolving the dispute placed before this Court.
17. Section 3(23) of the Act of 1939 defines "tenant", which is as under:-
""tenant" means the person by whom rent is, or but for a contract, express or implied, would be payable and, except when the contrary intention appears, includes a sub-tenant, but does not include a mortgagee of proprietary or under-proprietary rights, a grove-holder, a rent-free grantee, a grantee at a favourable rate of rent or, except as otherwise expressly provided by this Act, an under-proprietor, a permanent lessee or a thekedar;"
18. Section 21 which is provided under Chapter III of the Act of 1939 provides for classes of tenants, which are as under:-
"21. Classes of tenants. - There shall be, for the purposes of this Act, the following classes of tenants, namely:
(a) permanent tenure-holders,
(b) fixed-rate tenants,
(c)tenants holding on special terms in Oudh,
(d) ex-proprietary tenants,
(e) occupancy tenants,
(f) hereditary tenants,
(g) non-occupancy tenants."
19. Thus, we see that Act provides for different classes of tenants. In the instant case, the dispute is as to the entry of Sahadat Hussain, grandfather of petitioners as a hereditary tenant in the revenue records. Hereditary tenants have been defined in Section 29 as under:-
"29. Hereditary tenants. - Every person belonging to one or another of the following classes shall be a hereditary tenant, and subject to any contract which is not contrary to the provisions of Section 4 shall be entitled to all the rights conferred, and be subject to all the liabilities imposed on hereditary tenants by this Act, namely :
(a) every person who is, at the commencement of this Act, a tenant of land otherwise than as a permanent tenure-holder, a fixed-rate tenant, a tenant holding on special terms in Oudh, an ex-proprietary tenant, an occupancy tenant, or except as otherwise provided in this Act, as a sub-tenant, as a tenant or a tenant of sir,
(b)every person who is, after the commencement of this Act, admitted as a tenant otherwise than as a tenant of sir or as a sub-tenant;
(c)every person who, in accordance with the provisions of this Act, acquires hereditary rights.
[Explanation. - For the purposes of this section, 'sub-tenant' does not include a person who holds land from a relation, dependant or servant of the land-holder, unless such relation, dependent or servant proves to the satisfaction of the Court that he is a genuine tenant of such land and has not been admitted to prevent the accrual of hereditary rights in favour of such person.] [Added by U.P. Act No. 10 of 1947.]"
20. Section 30 provides for the land in which hereditary rights shall not accrue, which is as under:-
"30. Land in which hereditary rights shall not accrue. - Notwithstanding anything in Section 29, hereditary rights shall not accrue in, -
(1) grove-land, pasture land, or land covered by water and used for the purpose of growing singhara or other produce;
(2) land used for the casual or occasional cultivation in the bed of a river;
(3) land acquired or held for a public purpose or a work of public utility; and in particular, and without prejudice to the generality of this clause, -
(a) lands at present, or which may, hereafter, be set apart for military encamping grounds;
(b) lands situated within the limits of any cantonment;
(c) lands included within railway or canal boundaries;
(d) lands acquired by a town improvement trust, in accordance with a scheme sanctioned under Section 42 of the United Provinces Town Improvement Act, 1919; or by a municipality for a purpose mentioned in clause (a) or clause (c) of Section 8 of the United Provinces Municipalities Act, 1916;
(e) lands within the boundaries of any Government forests;
(f) municipal trenching grounds;
(g) land held or acquired by educational institutions for purposes of instruction in agriculture;
(4) such tracts of shifting or unstable cultivation as the State Government may specify by notification in the official Gazette;
(5) such areas included in tea estates as the State Government with the previous approval of both Houses of the Legislature, may notify as areas in which, in the interest of the tea industry, hereditary rights should not accrue :
[Provided that, notwithstanding the inclusion of any plot in any notification issued under this clause before the first day of September, 1946, such plot if held by a tenant the aggregate area of whose holding exceeds one-half of an acre, shall be deemed never to have been included in any such notification.
Provided further that if any tenant has been ejected since January 1, 1940, from any plot to which the foregoing proviso applies on grounds other than those on which a hereditary tenant is liable to ejectment, such ejected tenant shall be reinstated in such plot, if he applies to a competent Court within six months from the date of the commencement of the United Provinces Tenancy (Amendment) Act, 1947.] [Added by U.P. Act No. 10 of 1947.]
(6) land transferred by a mortgage to which the provisions of the second paragraph of sub-section (5) of Section 15 of the Agra Tenancy Act, 1926, apply during the period specified in that paragraph;
[(7) The khudkasht of a landlord, permanent tenure-holder or under-proprietor, the local rate payable by whom does not exceed Rupees twenty-five per annum, if such khudkasht is let out when such landlord, permanent tenure-holder or under-proprietor is in the military, naval or air service of the Government or within three months before the entry in or three months after the cessation, of such service :
Provided that provisions of this clause shall not apply, -
(a) if, at the time such khudkasht is let out, there are several co-sharers in such khudkasht and not all of them are in the service of the Government as aforesaid, unless the co-sharers who are not in such service, belong to one or more of tine following classes, namely, females, minors, lunatics, idiots or persons incapable of cultivation by reason of blindness or physical infirmity; and
(b) beyond the thirtieth day of June next following the expiry of two years after the cessation of such service of landlord, permanent tenure-holder or under-proprietor, as the case may be.
(8) Lands notified by the State Government in accordance with rules to be framed by the State Government for the purpose of tanugya plantation.
Explanation. - For the purposes of this sub-section 'taungya plantation' means the system of afforestation where under the plantation of forest trees according to a scientific system, is done in the initial stages simultaneously with the cultivation of agricultural crop which ceases when the young trees begin to form a canopy and make further cultivation of agricultural crops impossible.] [Inserted by U.P. Act No. 18 of 1942.]"
21. Thus, from the reading of Section 21, 29 and 30, it is clear that though there are various classes of tenants and hereditary tenants having defined in Section 29, but such right shall not accrue in the land mentioned in Section 30, such as, grove-land, pasture land, or land covered by water and used for the purpose of growing singhara or other produce, land used for the casual or occasional cultivation in the bed of a river, land acquired or held for a public purpose or for a work of public utility, such tracts of shifting or unstable cultivation etc.
22. In the instant case, petitioners claim that Sahadat Hussain had filed a declaratory suit no. 64 under Section 59/61 of the Act of 1939 against Smt. Harnam Kunwari for declaring him as hereditary tenant. Annexure-2 to the writ petition is copy of the plaint filed before Assistant Collector, First Class, Gorakhpur. Para 2 of the plaint clearly reveals that Sahadat Hussain was in occupation of pit (gaddha) for 14-15 years in which he was growing water chestnut (singhara). Judgment dated 15.06.1966 declaring Sahadat Hussain as hereditary tenant clearly reveals that plot in suit which is in shape of gaddha and produces water chestnut (singhara) in it, on admission by Harnam Kunwari suit was decreed and plaintiff Sahadat Hussain was declared as hereditary tenant. Judgment dated 15.06.1966 is extracted here-asunder:-
"In the Court of Sri G. Shanker, Assistant Collector, Ist class, Gorakhpur
Suit No. 64 u/s 59/1 of U.P. T. Act Mohalla Purana Gorakhpur, City Gorakhpur
Sahadat Hussain vs Smt Harnam Kunwari
Copy of the Judgment
Plaintiff filed this suit under section 59/61 of U.P. Tenancy Act for declaration that he is a tenant of the plot detailed at the foot of the plaint. He further alleged that he is in possession over this plot in suit which is the shape of Garaha and produces singhara in it. That the trees situated around the land in suit are also in his possession That the defendant is an influential person and the Patwari does not record his name due to his fear hence this suit for declaration.
2. Defndt. Harnam Kunwari turned up and filed Eqbaldava in favour of the plaintiff admitting his case. The plaintiff filed extract of Khewat 1372 F and Khatauni 1372p in support of his claim and has a examined himself who has affirmed his case on oath.
Order
The suit of the plaintiff is decreed in terms of the Eqbaldava and he is declared hereditary tenant of the plot in suit. Let the papers be corrected accordingly.
Sd. G. Shanker 15.6.66
(G. Shanker)
Assistant Collector Ist class Gorakhpur 15.6.66
Judgment, signed, dated and pronounced in open court
Sd. G. Shanker 15.6.66
(G. Shanker)
Assistant Collector Ist class
Gorakhpur 15.6.66"
23. Section 59 provides for declaratory suit by tenant for declaration of right or share, while Section 30 clearly bars that hereditary rights shall not accrue in the land enumerated therein, such as, grove-land, pasture land, or land covered by water and used for the purpose of growing singhara or other produce, notwithstanding anything in Section 29, meaning thereby that hereditary tenancy would not accrue in respect of land on which singhara is grown.
24. Thus, the decree of the year 1966 which was passed on the basis of admission by defendant is a nullity as suit was decreed under Section 59/61 against provisions of Section 30. It clearly appears that it was a collusive suit for providing hereditary tenancy to Sahadat Hussain over the land mentioned in Section 30 for which no hereditary right could accrue.
25. It was solely on the basis of judgment of the year 1966 that name of Sahadat Hussain continued in Jamman-8 as hereditary tenant. The decree passed in the year 1966 is totally in contravention of provisions of Section 30 of the Act. Once no such hereditary tenancy right could have accrued in favour of Sahadat Hussain, the entry could not have been continued in Jamman-8.
26. Moreover, it is an admitted case of petitioners that no agricultural work is being done over the land in question. The entire case of petitioners and their grandfather hinges on the fact that land in question is being used for growing water chestnut (singhara), thus, no hereditary tenancy right could accrue in their favour and the entry cannot continue. Apart from the fact that declaratory suit was filed by Sahadat Hussain in the year 1966 which was decreed, petitioners have no other case to rely upon the entry standing since then in Jamman-8.
27. Petitioners, post remand, could only place before the authorities the judgment rendered in 1966 and also a copy of sale-deed, which after verification and report of Sub-Registrar was found to be incorrect. The authorities proceeded to reject the recall application filed by petitioners holding that no such hereditary tenancy could be continued over the land marked in Section 30 of the Act.
28. Thus, considering the facts and circumstances of the case, I find that no such declaration could have been made in favour of Sahadat Hussain over the land mentioned in Section 30 of the Act once the case of plaintiff is that land in question was used for growing water chestnut (singhara), decree passed in the year 1966 is void being against the provisions of Section 30.
29. In view of above, I find that no interference is required in the order impugned dated 17.05.2025 expunging the name of Sahadat Hussain from Jamman-8 as hereditary tenant.
30. Writ petition fails and is hereby dismissed.
31. However, no order as to costs.
Order Date :- 29.07.2025
V.S.Singh
