Allahabad High Court
Buddh Prakash And 2 Others vs State Of U.P. And 10 Others on 25 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:12121 Court No. - 49 Case :- WRIT - B No. - 2967 of 2023 Petitioner :- Buddh Prakash And 2 Others Respondent :- State Of U.P. And 10 Others Counsel for Petitioner :- Rahul Sahai Counsel for Respondent :- C.S.C.,Raj Kishor Pandey,Vishakha Pande Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Rahul Sahai, learned counsel for the petitioners, Mr. Mridul Kumar, learned Standing Counsel for the State-respondents and Mr. Rakesh Pandey, learned Senior Counsel assisted by Mr. Raj Kishore Pandey, learned counsel for the contesting respondent nos.4/2.
2. Brief facts of the case are that the dispute relates to plot no.988 area 0.29 acre (old plot no.1262 / 3, 1264/4) situated in Village-Tindwari, Pargana Tahsil & District- Banda. A civil suit no.115/ 1982 for mandatory injunction was filed on behalf of the Sheetal Prasad (father of respondent no.4/1 & 4/3) in respect to plot no.988 area 0.29 acre stating that the petitioners are recorded owner of the plot in dispute and defendants have carried out unauthorized construction in the north western corner of plot no.988, which is liable to be removed. Trial Court decreed the plaintiff suit vide judgment and decree dated 29.5.1985. Against the judgment and decree dated 29.5.1985 passed by trial Court, petitioners' father filed civil appeal No.63/1985 which was allowed vide judgment dated 5.11.1985 setting aside the judgment and decree of trial Court dated 29.5.1985 on the ground of jurisdiction. The decree passed by the lower appellate Court was maintained up to Hon'ble Apex Court in special leave to appeal. Hon'ble Apex Court while dismissing the leave to appeal vide judgment dated 23.8.1999 permitted the plaintiff to avail appropriate remedy before appropriate forum. After the adjudication of civil suit by Hon'ble Apex Court vide judgment dated 23.8.1999 on the ground of jurisdiction Sheetla Prasad- (father of respondent nos.4/1 to 4/3) instituted a suit under Section 229B read with Section 209 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "U.P.Z.A. &. L.R. Act") in respect to plot no.988 area 0.29 acre, which was registered as Suit No.1 /60 of 2005-2006. Trial Court framed the issues in the aforementioned suit and permitted the parties to lead the evidence in support of their cases. Trial Court vide judment and decree dated 10.2.2017 decreed the plaintiff suit. The judgment and decree of trial Court dated 10.2.2017 has been maintained in appeal under Section 331 (3) of U.P.Z.A. & L.R. Act by the Commissioner vide judgment dated 12.3.2019. The judgment of Commissioner dated 12.3.2019 has been maintained further in second appeal by the Board of Revenue vide judgment dated 24.2.2023, hence this writ petition on behalf of the petitioners for the following reliefs:
"i. to issue a writ, order or direction in the nature of certiorari for quashing the impugned judgment / order dated 25.5.2023 passed by the Member Judicial Board of Revenue U.P. at Allahabad in Case No.REW/ 822/2023/ Banda (Computerized Case No.AL2023071100822) (Buddh Prakash Vs. Sheetal Prakash) (Annexure No.1 to the writ petition).
ii. to issue a writ, order or direction in the nature of certiorari for quashing the judgment / decree dated 12.3.2019 passed by the Commissioner Chitrakoot Dham Division, Banda in Appeal No.01034 / 2017 (Buddh Prakash and Others Vs. Ram Narayan and others) (Annexure No.3 to the writ petition).
iii. to issue a writ, order or direction in the nature of certiorari for quashing the judgment / order dated 10.2.2017 passed by the Deputy Collector (Revenue) / Assistant Collector Ist Class Banda in O.S. No.1/60 of 2005-06 (Sheetal Prakash vs. Buddh Prakash and Others) (Annexure No.4 to the writ petition)."
3. Learned counsel for the petitioners submitted that the suit under Section 229B/209 of U.P.Z.A. & L.R. Act filed by the plaintiff-respondent was decreed in the arbitrary manner. He further submitted that although issues were framed in the suit but the trial Court has not decided the suit in proper manner according to the issues framed in the suit. He further submitted that by cryptic order, the suit under Section 229B / 209 of U.P.Z.A. & L.R. Act has been decreed. He next submitted that earlier the civil suit for injunction was contested between the parties up to the Hon'ble Apex Court and civil suit was ultimately decided against the contesting respondents. He also submitted that without taking into consideration, the earlier proceeding which was contested between the parties, the suit under Section 229B/ 209 of U.P.Z.A. & L.R. Act cannot be decreed. He further submitted that the appeal and second appeal have been also decided in arbitrary manner, as such, the impugned judgments passed by the trial Court/ first appellate Court / second appellate Court are liable to be set aside and matter is to be remitted back before the trial Court to decide the suit afresh in accordance with law.
4. Mr. Rakesh Pandey, learned Senior Counsel assisted by Mr. Raj Kishore Pandey, learned counsel for the contesting respondent nos.4/2 submitted that there is no limitation for filing the suit under Section 229B of U.P.Z.A. & L.R. Act. He further submitted that earlier civil suit which was contested between the parties was for injunction and the instant suit has been filed for declaration, as such, the same was rightly entertained and decreed by the trial Court. He further submitted that the trial Court has considered the respective case of the parties as well as evidence on record adduced by the respective parties. He further submitted that considering the consolidation entries of the plot in question, the suit was decreed by the trial Court and decree has been maintained in first appeal as well as second appeal. He further placed the finding of fact recorded by the trial Court which has been maintained in appeal. He next submitted that no interference is required against the concurrent finding of fact recorded by the trial Court/ first appellate Court/ second appellate Court.
5. I have considered the argument advanced by learned counsel for the parties and perused the records.
6. There is no dispute about the fact that the suit under Section 229B / 209 of U.P.Z.A. & L.R. Act filed by the plaintiff-respondent was decreed by the trial Court and decree of the trial Court has been maintained in first appeal by Commissioner as well as in second appeal by the Board of Revenue.
7. In order to appreciate the controversy involved in the matter, perusal of finding of fact recorded by the trial Court will be relevant, which is as follows:
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??? ??????- 01/60/2005-06 ???? 229???/209?????? ????? ?
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???? ?????? ???????? ??? ???????? ?? ?????? ??????? ? ?????? ???? ??? ??? ????? ?? ??????? ?????????? ?? ????? ?? ??????? ???? ???? ???????? ?? ?????? ????????? ?? ?????? ?? ?????? ?? ?? ???????? ???? ?????? 988/0.117 ??? ????? ????? ????????? ?????? ????? ??? 1413 ???? 1418 ???? ??? ???? ?????? ????? ????????? ?? ??? ????? ??? 1389 ???? ?? ???? ????????? ?????? ???? ??? ? ??? ??? ????????? ??????? ?? ???? ?????? 4.12.1974 ?? ?????? ???? / ?????? ????, ????? ?????? ???? ?????? ???????? ??, ?? ?????? ?? ?? ???? ????? ?? ???????? ???? ?? ????? ???? ?? ??? ???? ?? 20 ???? ?????? 4.12.1974 ?? ????? ?????? ?? ??? ??? ????? ??????? ???? ????????? ?? ??? ???????? ?????? ??? ???? ??? ???? ??? ???? ??? ??????? ???? ??? ??? ???????? ??????? ???? ???? 45, ??? ?????? ????? ?? ???? ?? ???????? ???? ?? ?????? (owership) ???????? ??? ???? 1981 ??? ????????? ?????? ???? ???????? ?????? ?? 10 ??? ???? 10 ??? ?? ??????? ???? ??? ???? ????? ??????? ?? ?????? ?? ???? ???? ?? ????? ??? ?? ???????? ???????? ?? ?????? ??? ???? ??? ????? ??? ???? ?????? ???? ???????? ?? ?????? ? ?????? ??????? ???? ???? ?? ??? ?? ????? ?? (??????)????? ?? ???????? ??? ??? ?????? 115/82 ??????? ???? ??? ?????? ???? ?? ?????? ?? ???????? ????? ???? ????????? ?? ?????? ?? ???? 29.5.1985 ?? ????? ???? ??? ?? ????????????? ? ???? ?? ???? ?? ?????? ???????? ??? ??? ???? ?? (?????? ?? ????? ????) ????? ?????? 5.11.1985 ?? ?????? ?? ???? ???? ???? ?? ??????? ????? ??????? ???? ?????? ???? ???????? ???????? ?? ???? ?????? 10.3.1999 ?????? ?????? ?? ?? ??? ????????? ?????? ?????? ???????? ?? ?????? ??? ?????? ???????? ??? ?????? ??????? ????? ?? ???? ???? ?????? 23. ????? 1999 ??? ?? ??????? ???? ?? ??-
the Special leave petition is dismissed. As the High Court has held that the Civil Court had no jurisdichion to deal with the question raised in the suit it will be open to the petitiner to approach the appropriate authority for that Claiming that relief ] ???? ???????? ?? ?? ?????? ??? ????? ???????? ?? ?????? ?? ??? ?????? ??? ?? ???? ??? ??? ????????? ?? ??????? ???????? ?? ?? ???? ?? ???? ????? ?? ??? ?????? ???????? ?? ???? civil court ?? ?????? ?? jurisdiction ?? ???? ??? ?????? ?? ???? ???? ?????? ??????? ????? ?? ???? ?? ??? ????? ?????????? ?????? ???????? / ????????? ????? ??? ???? ?????? ???????? ??? ??????? ???? ??? ?? ?? jurisdiction ?? ?????? ?? ?? ???????? ?????? ????? ??? ??? ??????? ??? ????????? ?????? ?? ?? ???? ??? ??? ?? ?????? ??? ???????? ???????? ??? ???? ????????? ??? ??? ?????? ???????? ?? ?????? ?? ?????? ??? ??? ???????? ???? ??????? ?? ?????? ?? ?????? ?? ?? ???? ???????????? ?????? ??????? ????? ?? ???? ?? ???? 12???? ??? ?????? 5.7.2012 ?? ???? ??? ??, ??? ???????? ???? ??? ??????? ?? ???? ?????? 30.7.1976 ?? ?????? ?? ??? ?? ?? ? ???? highly time barred ??, ????? equity ?? ?????????? ?? ?????? ??? He who seeks equity must come with clean hands]] ?? ?? ??????? ????????? ??? ??? ?????? ???? ?? ?? ????????? ???- ??? ???????? ?????? ?? ?????? ???? ????? ?? ????? ??? ?????? ??? ?? ?? ????? ????????? ?? ??????? ???????? ?????? ????? ??? ?? ????-6 ??? ???????????? ?? ?? ?? ????? ????? ??? ??? ???????? ???? ??? ?? ?? ??????? ???? ???? ????? ??, ?????? ????-???? ?????? ???????? ???? ??????? ????? ???? ?? ??? ??? ??? Rule of Estoppel ?? ??? ???? ?? ???? ?? ???? ????? ?? ????? ??? ??, ?????? ?? ???? ??? ?? ??????? ??? ??????? ???? ?? ?? ??? ????? ???? ?? ?? ??? ????? ??? ???? ?? ???? ?? ?? ?? ?? ??? ?? ????? ???? 143 UP ZA and LR Act ?? ??? (?????? ??????? ???????) ????????? ?????? ??? ?? ?? ??? ??, ?? ?? ???????? ?????? ??? ??? ???? ??? ??? ????????? ?????? ????????? ????? ??? 1413 ?? 1418 ???? ??? ???? ????? ????? ?? ??????? ???? ?? ??? ???? ???, ?? ???? (Fictitious) ????????? ??, ?????? (1) civil court ?????? ?? ?????? ???? ??? ???? ???? ??? ???????? ?? ???? ??? ???? ???? (2) civil court ?? ???? ?? ???? ?????? ?????????? ??? ???-6 ( ??????? ???????) ??? ???? ??? ???? ?? ???? ?? ???????? ?? ??? ?? ???? ???? ???? ???? ???? ????? ??????? ??? ??? ??? ??????? ????????? ?????? ???? ???? ????? ???
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1-????? ??? ?????? ???? ?? ???? ??? ??????? ???? ???? ???
2- ??????? ??? ?????? ?? ??????? ??? ?? ???????????? ???? ???? ?? ?? ??????? ???? ?? ????????? ?? ????? ???????? ??, ?? Tresspasser ?? ?????? ??? ??? Possession may be nine point in law but can not supercede Ownership] 3- ???? ???? ???????? ??? ??, ??????? ??? 1982 ?? ???? 1999 ?? ?????? ?????? civil court ?? ???? ?????? ??????? ????? ?? ????????? ??? ??? ?????? ??????? ????? ?? ???? ?? ??????? ?????? ???????? ???? ??? ???
4- ???? ???? ??????? ???? ?? ???? 49 ?? ????? ??? ??, ????? ????????? ?? ?????? ?????? ??????? ????????? ??? ?????? ?????? ? ???????? ???? ?? ????????? ????? ??. 49 ??????? ???? ?? ???????? ????? ???
5- ???? ResJudicata ?? ????? ??? ??, ??????? ????? ?????????? / ???????????? ???????? ?? ????? ????? ??? ???????? ??, ??? ????? ??? ??????? ??? ??? ???
6- ???? ??? Natural ??????? ?? ??????? ????? ??? ??? ??? ?? ??? ?????? ????????? ?? ??????? ??? ???? ?? ???? ??? ??????? ???? ???? ???
7- ??? ??? ???? 80 ?????????, 106 ?????? ??? ???? ?? ????? ????? ????? ??? ??? ??? ????? ??? ??? ???
8- ?? ??? ?????? ??????? ??? ?????? ??????? ?? ???????? ??? ????, ????? ??????? ???? ???
9- ??????? ?????? ??????? ?? ??? ???? ??? ??? ??? ??? ??? ??? ??????? ???? ??????? ??? AIR 1959 All-1(F.B) ??? ??????? ?? ??- Possession is primafacie evidence of title and if Person who is in Possession is dispossessed he has a right to claim back possession from the person who dispossessed him in an ordinary suit of that kind if the plaintiff succeeds in establishing his title as well as possession he is bound to scceed-Even if he is unable to prove his title he can succeed on the basis of prior Possession alone]]
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8. It is material that trial Court has recorded finding of fact that contesting respondents (plaintiff) is recorded owner of the plot in dispute. The final consolidation entry i.e. C.H. Form 45 was also taken into consideration by the trial Court in which plaintiff was recorded. The trial Court has also considered the judgment passed by the civil Court in a suit for injunction filed by plaintiff which was ultimately dismissed on the ground of jurisdiction with liberty to plaintiff to avail appropriate remedy. The trial Court has accordingly, decreed the plaintiff's suit under Section 229B / 209 of U.P.Z.A. & L.R. Act which has been rightly maintained upto second appellate stage. The finding of fact recorded by trial Court is not vitiated by any error of law.
9. It is material that trial Court after recording finding on ownership, possession, limitation & bar of Section 49 of U.P. Consolidation of Holdings Act, 1953 has replied every issues framed in the suit as such it can be said that issues framed in the suit has not been decided by trial Court.
10. So far as scope of suit under Section 229B of U.P.Z.A. & L.R. Act is concern, this Court in the case reported in 2005 (99) R.D. 529, Pan Kumari vs. Board of Revenue, U.P. at Allahabad & Others has held that the suit under Section 229B of U.P.Z.A. & L.R. Act are suit of special character and there is no limitation for filing suit under Section 229B of U.P.Z.A. & L.R. Act. Paragraph No.6 of the judgment rendered in Pan Kumar (supra) will be relevant for perusal, which 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 excepted. 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 Rev Dec. 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 129 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."
11. Considering the entire facts and circumstances of the case as well as ratio of law laid down by this Court in the case of Pan Kumari (supra), no interference is required in the matter.
12. The writ petition is dismissed accordingly.
Order Date :- 25.1.2024 Rameez