Allahabad High Court
Lt. Col. Vivek Sood vs State Of U.P. And 15 Others on 30 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Neutral Citation No. - 2024:AHC:14237 Reserved On:9.1.2024 Delivered On:30.1.2024 Court No. - 49 Case :- WRIT - B No. - 96 of 2021 Petitioner :- Lt. Col. Vivek Sood Respondent :- State Of U.P. And 15 Others Counsel for Petitioner :- Krishnaji Khare,Piyush Kishore Srivastava,Pramod Kumar Dubey,Priyansh Counsel for Respondent :- C.S.C. Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Sanjeev Singh, learned Senior Advocate assisted by Mr. Priyansh, learned counsel for the petitioner and Mr. Jitnedra Narain Rai, learned Additional Chief Standing Counsel for the State-respondents.
2. Brief facts of the case are that the Khasra No.24 area 6 bigha 5 biswa situated in Village- Dantal, Pargana, Tahsil & District- Meerut was declared surplus along with other plots in the proceeding under the U.P. Imposition Of Ceiling On Land Holdings Act, 1960, accordingly, the same was vested in State. The aforementioned Khasra No.24 before declaration as surplus land was recorded in the name of Delhi Cloth and General Mills Limited, namely, Daurala Sugar Works, Daurala, Meerut. The aforementioned Khasra No.24 area 5 bigha was allotted in favour of the petitioner's father, namely, Sri Dharam Chand Sood vide order dated 16.6.1972 / 24.8.1972 considering his services in Indian Army. On the basis of aforementioned lease, the name of petitioner's father was recorded as Sirdar in the revenue records on 12.9.1972. Petitioner's father remained in possession of the khasra no.24 area 5 bigha and in the due course of time, he was recorded as bhumidhar with transferable rights. Petitioner who is son of Dharam Chand Sood also joined Indian Army in life time of his father and had retired from the post of Lieutenant Colonel under the voluntary retirement scheme. Petitioner being only legal heir of his father inherited the land of Khasra No.24 area 5 bigha and petitioner remained in possession over the same. Agricultural work was being conducted on the aforesaid land earlier by the petitioner's father and after death of petitioner's father petitioner was managing the agricultural work in respect to the Khasra no.24. After death of the petitioner's father, the name of petitioner was not recorded in the revenue records due to manipulation of the private respondents and the name of private respondent was accordingly, entered into the revenue records, as such, petitioner filed a suit under Section 229B of U.P.Z.A. & L.R. Act, 1950 on 26.4.2006 impleading State of U.P. & private defendants for declaration of his right in respect to khasra no.24 area 5 bigha by recording his name after expunging the name of defendant nos.2 to 12. The aforementioned suit was registered as Case No.115 of 2006. State / defendant no.1 filed his written statement in the aforementioned suit stating that the suit is barred by Section 49 of U.P. Consolidation of Holdings Act, other legal plea was also taken in the written statement filed by State. Private defendants have also filed their written statement denying the plaint allegations. The issues were framed in the suit on the basis of pleadings of the parties. Parties adduced oral and documentary evidences in support of their cases. Respondent no.5- Sub-Divisional Magistrate heard learned counsel for the parties and considered the evidence adduced by the respective parties in the suit. Respondent no.5 / Sub-Divisional Magistrate vide judgment and decree dated 30.1.2008 dismissed the plaintiff suit. Against the judgment of trial Court dated 30.1.2008 plaintiffs filed an appeal which was dismissed by respondent no.3/ Additional Commissioner vide judgment dated 13.4.2009. Against the judgment dated 13.4.2009 passed by Additional Commissioner, petitioner filed a second appeal under Section 331 (4) of U.P.Z.A. & L.R. Act before respondent no.2/ Board of Revenue. The same was registered as Second Appeal No.9 (ZA) (M) of 2010-11. The aforementioned second appeal was heard by the Board of Revenue and the same was dismissed vide judgment dated 11.3.2011, hence this writ petition on behalf of the petitioner challenging all the three judgment dated 30.1.2008, 13.4.2009 & 11.3.2011 passed by the trial Court, Ist Appellate Court and IInd Appellate Court.
3. The stamp reporter has reported laches of 3516 days (i.e. about 10 years) in filing the writ petition which has been explained by the petitioner in the writ petition. The writ petition was entertained vide order dated 21.1.2021 and notices were issued to the private respondent nos.7 to 16.
4. All the respondents were directed to file counter affidavit. In pursuance of the order of this Court dated 21.1.2021 steps were taken by registered post as well as by publication. On the basis of steps taken on behalf of the petitioner, the service upon the private respondent was found sufficient. State has filed his counter affidavit in the matter and petitioner has filed rejoinder affidavit also.
5. Learned counsel for the petitioner submitted that the petitioner's father was granted agriculture lease on 16.6.1972/ 24.8.1972. He further submitted that on the basis of the lease granted in favour of the petitioner's father, the entry was made in the revenue record in the name of petitioner's father. He next submitted that after death of the petitioner's father, the name of petitioner could not be recorded due to manipulation of the private respondents, accordingly, the suit under Section 229B of the U.P.Z.A. & L.R. Act was filed on behalf of the petitioner for declaration of his right on the basis of lease granted in favour of the petitioner's father. He next submitted that the lease granted in favour of the petitioner's has not been challenged by anybody nor the lease has been cancelled in any manner, as such, petitioner is entitled to be recorded in the revenue records. He further submitted that the suit for declaration filed on behalf of the petitioner has been dismissed on the ground that plaintiff has failed to file copy of lease deed or any other evidence in support of the lease. He also submitted that if the petitioner / plaintiff could not produce the copy of the lease then the Court can summon the record relating to the lease from the record room maintained at the Tahsil with respect to the execution of lease but the Court has not followed the procedure and dismissed the suit for declaration filed by the petitioner. He further submitted that the appeal before the Commissioner as well as second appeal before the Board of Revenue have been also dismissed by passing cryptic order. He further submitted that the petitioner was able to get the record of aforementioned lease executed in favour of petitioner's father in the form of copy of R-6 register on the basis of information received by the petitioner under Right to Information Act vide information dated 7.12.2020, which was received by the petitioner on 8.12.2020. He further submitted that on the basis of aforementioned information received relating to R-6 register, petitioner has filed the instant writ petition in January, 2021 for quashing of all the three order passed in the proceeding under Section 229B of U.P.Z.A. & L.R. Act and for consideration of his matter by the Court concerned afresh in the light of the entry of R-6 register. He further submitted that entry of R-6 register cannot be ignored at all. He further submitted that the Court could himself summon the record relating to the lease which is being maintained by the State himself but all the three Courts have failed to apply their mind and dismissed the plaintiff's suit in arbitrary manner. He next submitted that the suit under Section 229B of U.P.Z.A. & L.R. Act is a suit of special character, as such, the same cannot be dismissed in arbitrary manner.
6. On the other hand, Mr. Jitnedra Narain Rai, learned Additional Chief Standing Counsel for the State-respondents submitted that the concurrent finding of fact has been recorded by all the three Courts that the case of execution of lease setup by the petitioner is not proved and the plaintiff has also failed to produce any evidence regarding execution of lease deed before trial Court. He further submitted that initially Delhi Cloth and General Mills Limited through Daurala Sugar Works, Daurala, Meerut was recorded in the revenue records but later on the land was declared surplus vide order dated 31.1.1963 under the U.P. Imposition Of Ceiling On Land Holdings Act, 1960. He also submitted that in the Khatauni of 1379-1381 fasli, which is annexed by the petitioner as Annexure No.1 it is not proved that khasra no.24, which was declared surplus under the U.P. Imposition Of Ceiling On Land Holdings Act, 1960 was allotted to petitioner's father. He also submitted that the plaintiff has to discharge his burden in accordance with law and he cannot get benefit of the weakness of the defendants. He further submitted that the second appeal filed by the petitioner was dismissed in the year 2011, as such, the filing of the instant petition after about 10 years along with certain documents i.e. copy of R-6 register will not entitle the petitioner / plaintiff to pray for fresh trial of the suit considering the entry relating to R-6 register. He also submitted that the suit for declaration under Section 229B of U.P.Z.A. & L.R. Act has been decided on the basis of oral and documentary evidences adduced by both parties in accordance with law and all the three Courts have decided the suit / appeal/ second appeal on the basis of evidence on record which cannot be re-examined on the basis of certain new documents. He further submitted that no interference is required in the matter and writ petition is liable to be dismissed.
7. I have considered the argument advanced by learned counsel for the parties and perused the records.
8. There is no dispute about the fact that the suit under Section 229B of U.P.Z.A. & L.R. Act filed at the instance of the petitioner has been dismissed by the trial Court after framing issues in the suit and giving parties to lead oral and documentary evidence. There is also no dispute about the fact that appeal as well as second appeal filed by the petitioner were also dismissed by the Additional Commissioner/ Board of Revenue in the year 2009/ 2011.
9. In order to appreciate the controversy involved in the matter, the perusal of Section 229B of U.P.Z.A. & L.R. Act / Section 144 of U.P. Revenue Code, 2006 will be relevant for perusal, which is as under:
" Section 229B of U.P.Z.A. & L.R. Act-
Section 229B. Declaratory suit by person claiming to be an asami of a holding or part thereof.-[(1) Any person claiming to be an asami of a holding or any part thereof, whether exclusively or jointly with any other person, may sue the land-holder for a declaration or his rights as asami in such holding or part, as the case may be].
(2) In any suit under sub-section (1) any other person claiming to hold as asami under the land-holder shall be implemented as defendant.
(3) The provisions of sub-sections (1) and (2) shall mutatis mutandis apply to a suit by a person claiming to be a [bhumidhar] with the amendment that for the word "land-holder" the words "the State Government and the [Gaon Sabha] are substituted therein.
Section 144 of U.P. Revenue Code, 2006 Section 144. Declaratory suits by tenure holders?(1) Any person claiming to be a bhumidhar or asami of any holding or part thereof, whether exclusively or jointly with any other person, may sue for a declaration of his rights in such holding or part.
(2) In every suit under sub-section (1) instituted by or on behalf of?
(a) a bhumidhar, the State and the [Gram Panchayat] shall be necessary parties;
(b) an asami, the landholder shall be a necessary party.
10. Provisions of Section 341 of U.P.Z.A. & L.R. Act / Section 214 of U.P. Revenue Code, 2006 will be also relevant by which provisions of Code of Civil Procedure has been made applicable in these proceedings, which are as under:
Section 341 of U.P.Z.A. & L.R. Act
341. Application of certain Acts to the proceeding of this Act?Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1870 (VII of 1870), the Code of Civil Procedure, 1908, and the [Limitation Act, 1963], [including Section 5 thereof] shall apply to the proceedings under this Act.
Section 214 of U.P. Revenue Code, 2006
214. Applicability of Code of Civil Procedure, 1908 and Limitation Act, 1963?Unless otherwise expressly provided by or under this Code, the provisions of the Code of Civil Procedure, 1908 and the Limitation Act, 1963 shall apply to every suit, application or proceedings under this Code."
11. The suit under Section 229B of U.P.Z.A. & L.R. Act for declaration of the right is to be decided after framing issues and giving parties to lead evidence. The issues were framed in the suit after completion of the pleadings by the parties. Proper opportunity has been given to the plaintiff as well as defendant to adduce evidence in support of their case. Trial Court after considering the evidence on record recorded finding that the plaintiff has failed to produce any evidence regarding execution of lease deed in favour of plaintiff's father. Trial Court has also recorded finding that from the entry made in the khatauni of 1379-1381 fasli, it is not proved that Khasra No.24 which was declared surplus under the U.P. Imposition Of Ceiling On Land Holdings Act, 1960 was allotted to the petitioner's father and the finding of fact has been maintained in appeal and second appeal.
12. The question as to whether any document obtained by the plaintiff/ petitioner after disposal of the suit/ appeal / second appeal can be examined by writ Court after such a long period or the same can be ordered to be examined by the trial Court/ first appellate Court / second appellate Court unless the document is accepted / admitted in evidence in accordance with law. The answer is no because suit filed under Section 229B of U.P.Z.A. & L.R. Act has already been decided in the year 2008 on the basis of evidence adduced by the parties and the second appeal has also been decided in the year 2011, as such, the instant writ petition filed in the year 2021 i.e. after about 10 years along with the alleged document relating to lease i.e. copy of R-6 register cannot be considered in this manner.
13. It is also material that provisions of Code of Civil Procedure are applicable in the suit under Section 229B of U.P.Z.A. & L.R. Act in view of the provisions contained under Section 341 of U.P.Z.A. & L.R. Act as quoted above, as such, fresh evidence cannot be taken into consideration in writ petition filed after 10 years from the date of disposal of second appeal by the Board of Revenue.
14. Considering the entire facts and circumstances of the case, the finding of fact recorded by the trial Court as mtaintained by first appellate Court and second appellate Court cannot be disturbed by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
15. The writ petition is accordingly, dismissed.
Order Date :- 30.1.2024 Rameez