Allahabad High Court
Shambhu And Others vs Board Of Revenue on 8 October, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:178733
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - B No. - 9918 of 1978
Shambhu And Others
.....Petitioner(s)
Versus
Board Of Revenue
.....Respondent(s)
Counsel for Petitioner(s)
:
Amish Srivastava, S.L. Yadav
Counsel for Respondent(s)
:
Prakash Chandra, S.C., S.P. Tripathi, Upendra Kumar Pandey
Court No. - 18
HON'BLE CHANDRA KUMAR RAI, J.
1. Heard Sri Amish Srivastava, learned counsel for the petitioners and the learned standing counsel for the state-respondents.
2. Nobody is present on behalf of the private respondents.
3. Brief facts of the case are that the suit under Section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the "U.P. Z.A. & L.R. Act) was filed by the private respondent for declaration of co-sirdari rights, claiming 2/3rd share, alleging that the defendants (petitioners' father) had 1/3rd share in respect to plot nos. 184/1 and 184/2 (new no.267/146), situated in Village Malikshahpur, Pargana-Saidpur, District Ghazipur. The aforementioned suit was contested by the petitioners' father, alleging that suit is barred by Section 49 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the "U.P. C.H. Act"). It is also alleged in the written statement that no objection was filed by the petitioners' predecessor during consolidation operation and petitioners were recorded exclusively as Sirdar during consolidation operation. Before the trial court, issues were framed and the parties have adduced evidence in support of the their case. The trial court vide judgment and decree dated 2.8.1969, dismissed the plaintiff's suit, recording finding of fact that plaintiffs are not entitled to be recorded as co-tenure holder over the plot in question. Against the judgment and decree of the trial court dated 2.8.1969, appeal was filed before the Commissioner which was registered as Appeal No.245 of 1969. The aforementioned appeal was heard by the Additional Commissioner, Varanasi Division, Varanasi and the same was allowed vide judgment and decree dated 22.10.1971, setting aside the judgment/decree of the trial court as well as the suit filed by the plaintiffs was decreed. The second appeal filed by the petitioners before the Board of Revenue has been dismissed vide judgment dated 30.6.1978. Hence, this writ petition on behalf of the petitioners for the following reliefs:-
(a) to issue a writ, order or direction in the nature of a certiorari, quashing the orders dated 20.6.1978 and 22.10.1971, passed by respondent nos. 1 and 2.
(b) to issue a writ, order or direction in the nature of mandamus, directing the respondents not to proceed against the impugned orders."
4. This Court admitted the petition on 23.11.1978 and stayed the dispossession of the petitioners from the property in question. In pursuance of the order of this Court dated 23.11.1978, parties have exchanged their pleadings.
5. Learned counsel for the petitioners submitted that suit under Section 229-B of the U.P. Z.A. & L.R. Act filed by the private respondents was dismissed by the trial court. He submitted that all the issues framed in the suit, have been decided, recording finding of fact that plaintiffs/private respondents cannot be recorded as co-sirdar, having 2/3rd share over the plot in question. He submitted that in appeal, without reversing the finding of fact recorded by the trial court, the suit has been decreed by passing cryptic order in appeal. He submitted that no point of determination was framed in appeal and the suit has been decreed in appeal in arbitrary manner. He submitted that the second appeal filed by the petitioners, was entertained in the year 1971-72 and without following proper procedure, second appeal has been dismissed by the Board of Revenue in the year 1978. He submitted that the order passed by the Additional Commissioner and the Board of Revenue should be set aside and the judgment and decree passed by the trial court should be affirmed.
6. I have considered the arguments advanced by learned counsel for the petitioners and perused the records.
7. There is no dispute about the fact that suit for co-sirdari right filed by the private respondents was dismissed by the trial court but in appeal, the suit has been decreed. There is also no dispute about the fact that the second appeal filed by the petitioner has also been dismissed.
8. In order to appreciate the controversy involved in the matter, perusal of the issues framed in the suit will be relevant, which are as under:-
"1. Whether the plaintiff is sirdar of the plots in list 'II' of the plaint and is in possession?
2. Whether defendants 1st. set are sirdars and in possession?
3. To what relief, if any, are the plaintiffs entitled?
9. Perusal of the judgment of the trial court on the aforementioned issues framed in the suit demonstrates that the trial court has decided all the issues framed in the suit, in the light of the evidence adduced by the parties including the effect of consolidation operation in the village in question. The finding of fact has been recorded by the trial court to the effect that the suit was filed on 25.5.1965, corresponding to 1372 fasli and the record further demonstrates that the defendants were recorded as well as in possession of Suit property at the time of the institution of suit, as such, the plaintiffs are neither sirdar of the plot in question nor are in possession of the same. The finding of fact has also been recorded while deciding issue no.2 that defendant nos.1 to 3 are recorded as sirdar of plot no.267/148 and defendant nos. 1 to 3 are in possession over the same, as such, the suit of co-sirdari right filed by the private respondents/plaintiffs cannot be decreed. The 1st appellate court has decreed the plaintiff suit in appeal by passing a cryptic order, without reversing the finding of fact recorded by the trial court in proper manner. By passing two-page order, the suit for declaration has been decreed in appeal which is not proper exercise of jurisdiction by the Additional Commissioner in appeal. The Board of Revenue has also not exercised the second appellate jurisdiction in proper manner as the second appeal was admitted in the year 1971-72 but without framing proper questions of law, the second appeal has been dismissed by the Board of Revenue.
10. The law is well settled that suit under Section 229-B of the U.P. Z.A. & L.R. Act/144 of the U.P. Revenue Code, 2006 are suit of special character which cannot be decided without framing issues and giving opportunity to the parties to lead evidence in accordance with law. In order to demonstrate the aforementioned principle of law, the relevant paragraphs of the judgment of this Court, reported in 2020 (146) RD 186, Babu vs. Mahavir will be essential for perusal which are as under:-
"The manner in which the suit instituted by the respondent no.1 under Section 229-B of U.P. Z.A. & L.R.Act has been decided by the impugned order dated 28.01.2019 cannot be appreciated. The trial court has neither framed issues nor has provided any opportunity of leading evidence to the parties to prove their respective cases. The provisions contained in Code of Civil Procedure has been given a go bye.
As already observed above by the Court in its order dated 21.02.2019, the proceedings under Section 229-B of U.P.Z.A & L.R Act are regular proceedings where declaration of rights in a holding is decided on the basis of evidence.
Learned counsel for respondent no.1 has also not been able to defend the impugned order; rather he appears to agree that the matter ought to have been remanded to the Sub-Divisional Officer concerned"
11. The perusal of the judgment of this Court reported in 2005 (99) RD 529, Pan Kumari vs. Board of Revenue, U.P., Allahabad will also be relevant in order to appreciate the scope of the suit for declaration under Section 229-B of the U.P. Z.A. & L.R. Act. Paragraph No.7 of the Judgement rendered in Pan Kumari (supra) is as under:-
"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 accepted. 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 R.D. 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 209 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."
12. In the instant matter, the trial court has rightly exercised the jurisdiction while dismissing the suit for declaration filed by private respondents after framing issues and affording opportunity to the parties to lead evidence in accordance with law but first appellate court has not followed the aforementioned principle while passing the judgment of reversal by which the plaintiff's suit under Section 229-B of the U.P. Z.A. & L.R. Act has been decreed in appeal in arbitrary manner. The judgment/decree of First Appellate Court/Additional Commissioner dated 22.10.1971 can be a judgment of affirmance but the same cannot be a judgment of reversal by which the suit under Section 229-B of the U.P. Z.A. & L.R. Act has been decreed.
13. Considering the entire facts and circumstances of the case, the impugned judgment/order dated 22.10.1971, passed by respondent no.2/Additional Commissioner and 30.6.1978, passed by respondent no.1/Board of Revenue are liable to be set aside and the same are hereby set aside.
14. The writ petition stands allowed and the judgment and decree of the trial court dated 2.8.1969 by which plaintiff's suit was dismissed, is hereby affirmed.
15. No order as to costs.
(Chandra Kumar Rai,J.)
October 8, 2025
C.Prakash
