Petitioners vs Ganga Singh And Others on 10 December, 2025

Author: Pankaj Purohit

Bench: Pankaj Purohit

HIGH COURT OF UTTARAKHAND AT NAINITAL
            Writ Petition (M/S) No.564 of 2025
Anandi Devi and others
                                                       --Petitioners
                               Versus
Ganga Singh and others                             --Respondents
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Dated- 10.12.2025 Presence:

Mr. Vijay Bhatt, learned counsel for the petitioners. Mr. B.D. Upadhyaya, Sr. Advocate assisted by Mr. Tushar Upadhyaya, Advocate for the respondents.

Hon'ble Pankaj Purohit, J. (Per)

1. This writ petition under Article 227 of the Constitution of India has been preferred by the petitioners challenging the judgment and order dated 27.01.2025 passed by the Board of Revenue, Circuit Court, Nainital in Second Appeal No. 63 of 2023-24 in Smt. Anandi Devi & Others vs. Ganga Singh & Others, the judgment and order dated 05.06.2024 passed by the Commissioner, Kumaun Mandal, Nainital in Appeal No. 110 of 2022-23, and the preliminary and final orders dated 10.08.2023 and 06.04.2018 respectively passed by the Assistant Collector, 1st Class/SDM, Ramnagar (Nainital) in Revenue Suit No. 22/134 of 2012-13 in Ganga Singh vs. Paan Singh & Others. According to the petitioners, the impugned orders suffer from patent illegality, lack of jurisdiction, and non-application of judicial mind, thereby warranting interference by this Court.

2. The dispute pertains to land measuring 11.513 hectares forming part of Khata No. 010 situated in Village Lamachaur, Tehsil Haldwani, District Nainital. In the year 2001, respondent no. 1 Ganga Singh along with his mother Smt. Heera Devi instituted a suit under Section

176 of the U.P. Zamindari Abolition & Land Reforms Act seeking division of holding and claiming a 1/3rd share in the aforesaid property. The petitioners, who were arrayed as defendants, filed a detailed written statement asserting that respondent no. 1 had already sold substantial portions of his share and that mutations had been duly effected in favour of multiple purchasers. It was thus contended that the suit was bad for non-joinder of necessary parties and that respondent no. 1 was not entitled to claim 1/3rd share after having alienated most of his holding. It was further pleaded that a significant portion of the disputed land had been declared non- agricultural under Section 143 of the UPZALR Act, and therefore the claim of equal division of agricultural land was untenable. Despite these objections, the Assistant Collector, 1st Class, Ramnagar, proceeded to decide the matter ex parte, passing a preliminary order on 28.04.2015, followed by a final order dated 06.04.2018, declaring respondent no. 1 entitled to a 1/3rd share. Aggrieved, the petitioners preferred an appeal before the Commissioner, Kumaun, who, by judgment dated 18.06.2019, set aside the ex parte orders and remanded the matter with directions to afford proper opportunity of evidence and hearing.

3. However, after remand, the Assistant Collector passed a preliminary order dated 25.11.2020, again reiterating that respondent no. 1 had a 1/3rd. The petitioners again approached the Commissioner by filing Appeal No. 31/07 (2020-21), whereupon the Commissioner, by order dated 19.10.2022, again set aside the preliminary order and directed the Assistant Collector to decide the matter afresh by framing appropriate issues on the objections raised by the

petitioners. After this second remand, the Assistant Collector passed a fresh preliminary order dated 10.08.2023, yet again allocating 1/3rd share to respondent no. 1. The petitioners challenged this order before the Commissioner in Appeal No. 110 of 2022-23, but the same was dismissed on 05.06.2024. The petitioners then filed a second appeal (No. 63 of 2023-24) before the Board of Revenue, which too was dismissed on 27.01.2025. Having no other efficacious remedy, the petitioners have approached this Court.

4. Learned counsel for the petitioners contends that the entire proceedings before the revenue court suffer from a fundamental jurisdictional defect, as large portions of the land in dispute have long been declared non-agricultural under Section 143 of the U.P. Zamindari Abolition & Land Reforms Act. The learned counsel submits that once such declaration is made, the land ceases to remain "agricultural land" within the meaning of Section 3(14) of the UPZA & LR Act, and consequently the revenue court stands divested of jurisdiction to entertain proceedings for division of holding under Section 176. It is submitted that this principle is now well-settled, and finds support in Chander Devi vs Commissioner Varanasi Division 2018 (139) RD 365, wherein it has been categorically held that once land is declared non-agricultural, the jurisdiction of the revenue court is ousted. Reliance is also placed on Mahesh Chand (dead) vs Brijesh Kumar, 2025 SCC OnLine 1730, which reiterates that land no longer retains the character of "land" under the UPZA & LR Act once Section 143 permission is granted. Despite this, the revenue court not only proceeded with the suit but also

repeatedly ignored the statutory bar even after the petitioners specifically raised this objection.

5. It is argued by the learned counsel for the petitioners that although the Commissioner, in his order dated 19.10.2022, had remanded the matter with a direction to frame issues including the crucial issue as to whether the revenue court possessed jurisdiction to adjudicate land which had been declared non- agricultural, the Assistant Collector, while passing the impugned preliminary order dated 10.08.2023, did not even advert to this issue. Instead, the court diverted its reasoning to an entirely unrelated aspect, observing that bhumidhars having transferable and non-transferable rights may seek partition, an issue which was never in dispute between the parties. The core issue whether the land declared non-agricultural could be subjected to partition under Section 176 at all was left unaddressed. This omission, visible on the face of the record, vitiates the entire exercise.

6. Learned counsel for the petitioner further submits that the Commissioner, while rejecting the appeal on 05.06.2024, erroneously upheld the finding of the trial court despite the record clearly reflecting that the trial court never considered the impact of Section 143 declarations. The order of the Commissioner incorrectly notes that the trial court had considered the aspect of land declared non-agricultural, whereas in fact the judgment contains no discussion whatsoever on this issue. This error amounts to affirming a finding that never existed in the first place. The Board of Revenue, too, in its judgment dated 27.01.2025, mechanically endorsed the same findings without appreciating that the

most crucial jurisdictional issue was left unconsidered by both subordinate courts.

7. It is further argued by the learned counsel for the petitioner that respondent no. 1 has already sold major portions of his share, and such sales stand duly mutated in the names of purchasers. Therefore, he no longer retains a 1/3rd share in the remaining land, and cannot seek partition as if he continues to hold his original share. The petitioners had categorically pleaded this fact in their written statement, but the revenue court failed to frame any issue as to whether respondent no. 1 continued to have any subsisting share at all in the land sought to be partitioned. The courts below have erroneously assumed that respondent no. 1 is still a one- third owner, ignoring that the share he once possessed has been alienated and his rights transferred. The petitioners submit that where a co-sharer has sold his share and mutation has been effected, he cannot again claim proportionate partition on the remaining holding.

8. Learned counsel for the petitioner also draws attention to the legal position that when any portion of an undivided holding is declared non-agricultural, such declaration relates to the entire holding as shared by all co-owners, because each co-owner is deemed to have an equal interest in every portion of the joint land. This principle has been affirmed by the Supreme Court in Om Prakash vs Mishri Lal (2017) 5 SCC 451.Thus, the declaration of even some khasra numbers as non- agricultural under Section 143 affects the entire co- owned holding and ousts revenue jurisdiction in its entirety. The courts below failed to consider this binding legal position and proceeded as if only specific plots had lost their agricultural character. It is further submitted

that an earlier oral family partition had already taken place among all parties, and each party had been in settled possession of their respective portions for years. This fact was specifically pleaded by the petitioners but was never examined. No issue was framed on this aspect, nor was any evidence considered, thereby causing serious prejudice. Once parties have acted upon an oral family partition and are in separate possession, reopening the matter without examining this crucial aspect is wholly illegal.

9. The learned counsel for the petitioner submits that all three courts below- the Assistant Collector, the Commissioner, and the Board of Revenue,have committed a manifest error of law by ignoring the jurisdictional bar under Section 143, the effect of prior sales by respondent no. 1, the existence of an oral family partition, and the settled legal position as laid down by the Supreme Court. Their orders, passed without application of mind, are arbitrary, perverse and unsustainable, and deserve to be set aside.

10. Learned counsel for respondent no. 1 submits that the writ petition is wholly misconceived and liable to be dismissed, as all three courts below- the Assistant Collector, the Commissioner, and the Board of Revenue, have concurrently recorded findings of fact in favour of respondent no. 1. It is pointed out that in the proceedings arising out of the suit under Section 176 of the U.P. Zamindari Abolition & Land Reforms Act, 1951, respondent no. 1 has consistently been held entitled to 1/3rd share in the disputed land, after adjusting the portion of land which he had already transferred by sale. These concurrent findings, being purely factual, do not

warrant interference in exercise of supervisory jurisdiction under Article 227 of the Constitution.

11. It is further submitted by the learned counsel for the respondent no. 1 that the petitioners have assailed the impugned orders primarily on the ground that certain portions of the land have been declared abadi (non-agricultural) under Section 143 of the Act and therefore cannot be partitioned in revenue proceedings, and additionally that the purchasers were not impleaded. Learned counsel argues that both grounds are unsustainable. First, the petitioners have nowhere disclosed either the exact extent of the land allegedly declared abadi or the khasra numbers of such land; their objection is vague, unsupported and raised only to delay the proceedings. Secondly, the purchaser of the land sold by respondent no. 1 - namely Smt. Kala Joshi, has in fact been impleaded as defendant/respondent no. 3, and thus no plea of non-joinder survives. It is emphasised that respondent no. 1 himself impleaded the transferee as a party, which negates the petitioners' contention that necessary parties were omitted.

12. Learned counsel for the respondent no. 1 submits that on merits, the petitioners have failed to demonstrate any perversity in the findings recorded by the courts below. The original holding measured 11.513 hectares, jointly inherited by late Dan Singh, late Mohan Singh and respondent no. 1's father, all of whom were real brothers. As per law, respondent no. 1 is entitled to one-third share, i.e., 3.83 hectares. Out of this entitlement, respondent no. 1 validly transferred 2.425 hectares through a registered sale deed to Smt. Kala Joshi. Consequently, after excluding the said transferred land from his share, respondent no. 1 continues to

remain entitled to 1.4126 hectares. Learned counsel points out that this exact computation has been recorded in the preliminary order dated 10.08.2023, which has been duly affirmed by both appellate forums. Since the area sold by respondent no. 1 has already been deducted from his share, the petitioners' grievance that the plaintiff has sold his land and therefore has no claim left, is baseless and contrary to record.

13. It is further submitted learned counsel for the respondent no. 1 that the petitioners' attempt to rely upon the declaration of abadi land is misplaced. The courts below have already considered the share of respondent no. 1 after excluding the land transferred by him, and there is no inconsistency or error in the findings. The petitioners, without specifying any concrete detail, merely allege that some land has been declared abadi. Such vague allegations cannot defeat respondent no. 1's lawful entitlement, particularly when the exact share of the respondent has been separately carved out by the revenue court after proper demarcation. The plea of lack of jurisdiction raised by the petitioners is therefore unsustainable and is only an afterthought raised at a belated stage.

14. Learned counsel for the respondent no. 1 further submits that the petitioners have been attempting to delay the proceedings since the very beginning. The suit was instituted as far back as 24.10.2001, yet due to multiple objections and procedural tactics, the matter has remained unresolved for over two decades. The Board of Revenue, taking note of such prolonged pendency, has in its order dated 27.01.2025 rightly directed the trial court to decide the matter on merits expeditiously within one month. It is

emphasised that the petitioners' repeated objections, whether regarding non-agricultural land or non-joinder, have either been adjudicated, or are devoid of substance, or have been raised without any factual basis. The writ petition, being another attempt to reopen concluded findings, deserves dismissal. In view of the above, the learned counsel submits that the petitioners have shown no error apparent on the face of the record, nor any jurisdictional infirmity or perversity in the concurrent findings recorded by the revenue court and appellate authorities. All courts below have committed no illegality in holding respondent no. 1 entitled to his share. Hence, no interference is warranted, and the writ petition merits outright dismissal.

15. Upon a careful reading of the record and having considered the rival submissions, it is apparent that this petition essentially seeks to re-open a long running factual controversy concerning entitlement to a share in the agricultural holding comprised in Khata No. 010. The core complaints advanced by the petitioners relate to (i) an asserted lack of jurisdiction on the part of the revenue forum because certain portions of the holding were allegedly declared non-agricultural under Section 143 of the U.P. Zamindari Abolition & Land Reforms Act; (ii) the contention that respondent No. 1 had alienated the major part of his share and therefore could not claim partition; and (iii) an allegation of non-application of mind by the trial court in purportedly failing to frame or decide issues remitted by the Commissioner. These contentions must be examined against the well-settled principles governing supervisory jurisdiction under Article 227 and the scope of interference with concurrent findings of fact.

16. First, it is necessary to emphasise that Article 227 is a supervisory jurisdiction designed to keep subordinate courts within the bounds of jurisdictional and legal limits, it is not to be exercised as a court of appeal to reappraise evidence or re-weigh material on which the subordinate courts have recorded concurrent findings of fact. The record in this case discloses that the Assistant Collector did consider the question of the character and extent of the land and recorded specific findings after taking into account the sale deeds, the mutation entries and the submissions of parties. Those findings have been upheld by the Commissioner and subsequently by the Board of Revenue. The courts below have, therefore, recorded concurrent findings that respondent No. 1 had a one-third entitlement in the joint holding and that, after excluding certain transfers made by him, a particular residual area remained attributable to his share. Where concurrent findings are arrived at after an appreciation of record material, the High Court will normally not disturb such conclusions in exercise of its supervisory jurisdiction unless there is a demonstrable error of law, perversity, or the absence of jurisdiction on the face of the record.

17. On the question of jurisdiction, the petitioners' case rests on a bare assertion that parts of the holding were declared non-agricultural under Section 143 and that, consequently, the revenue court lacked competence to proceed under Section 176. It is, however, the settled duty of the party who asserts a jurisdictional bar to place on record precise and specific material showing the scope, extent and character of the alleged Section 143 declaration. In the present case the petitioners have not identified the exact khasra numbers or the precise area

which, they allege, was declared non-agricultural, nor have they shown that any such declaration attained finality in a manner that would oust the revenue forum's jurisdiction over the entire holding. The courts below recorded that the question of land character was examined and that the respondent's share was computed after excluding the transferred portions, the appellate authorities moreover applied its minds to the rival contentions and did not act in a manner that could be termed mechanical or arbitrary. The mere invocation of Section 143, without supporting documentary and specific proof of a final non-agricultural status covering the whole or such portion of the holding as would divest the revenue court of competence, does not suffice to demonstrate a jurisdictional defect warranting interference under Article 227. Equally important is the fact that the petitioner's plea of non-joinder of purchasers is contracdicted by the record. The accounts and entries produced before the revenue court demonstrate that the transferee (notably, Smt. Kala Joshi) was impleaded and that the trial court gave consideration to the sale deeds and subsequent mutations. The contention that necessary parties were omitted is therefore not borne out by the documents on file. It is not open to the High Court, in exercise of supervisory jurisdiction, to upset a reasoned conclusion arrived at by subordinate forums on the basis of material they have considered and upon which they have recorded findings, merely because a different inference could arguably have been drawn.

18. The petitioners also rely on alleged remand directions said to have been inadequately complied with. A close reading of the proceedings demonstrates that the

Commissioner, upon remand, required the trial court to frame issues and adjudicate the objections. The trial court did frame and decide issues relating to title, sale and mutation, and gave reasons for its conclusions. The Commissioner and the Board of Revenue considered the scope and sufficiency of those reasons and found them to be adequate. An appellate court is entitled to infer compliance from the tenor of a judgment and the express findings contained therein, where the appellate forums, which have greater vantage, have examined the record and upheld the trial court's conclusions, the High Court will not normally substitute its view absent a clear instance of non-application of mind or legal error. No such patent illegality or perversity appears on the face of the record here.

19. It is also necessary to underscore that the relief sought by the petitioners is, at bottom, a re-examination of fact whether an oral family partition existed, the exact extent of sales effected by respondent No. 1, and the precise computation of the residual share. These are matters of fact which the revenue court is ordinarily competent to investigate and which indeed it has investigated. If the petitioners consider that certain factual aspects require fresh inquiry, their remedy lies in pursuing appropriate appellate or revisionary remedies within the statutory framework, what is impermissible is to seek collateral interference in the High Court in the absence of any legal or jurisdictional error at the hands of the subordinate authorities. Finally, the jurisprudence recognises that relief under Article 227 is available where there is an error apparent on the face of the record. The submissions advanced by the petitioners fail to disclose any such error. The orders impugned evince

consideration of the rival claims, application to the evidence tendered, and coherent reasons for the conclusions reached. Neither has it been shown that the Courts acted without jurisdiction in the sense of being wholly incompetent to entertain the dispute, nor is there any material to demonstrate that the concurrent findings are perverse. The fact that large portions of the controversy turn on contested factual matrices, which would call for elaborate trials and appreciation of oral and documentary evidence, militates against the exercise of supervisory jurisdiction in the petitioner's favour.

20. For these reasons, which flow from the settled principles governing the exercise of the High Court's supervisory jurisdiction and from an examination of the record in the present case, the petition must fail. The impugned orders do not suffer from any jurisdictional defect or error of law that would justify interference, they represent the considered conclusions of the revenue court and the two appellate authorities, and do not reveal any non-application of mind or such perversity as to require judicial correction.

21. Accordingly, the writ petition is dismissed.

22. Parties are left to pursue such remedies as are available to them in law.

(Pankaj Purohit, J.) Rdang