Allahabad High Court
Mahender Pal Singh And Another vs Ajai Pal Singh And 3 Others on 9 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On : 14.10.2022 Delivered On : 09.11.2022 Court No. - 52 Case :- WRIT - B No. - 4996 of 2018 Petitioner :- Mahender Pal Singh And Another Respondent :- Ajai Pal Singh And 3 Others Counsel for Petitioner :- Subodh Kumar,Brijesh Ojha,R.P.S. Chauhan,Shadab Ali Counsel for Respondent :- C.S.C., ,Madan Singh,Ratan Deep Mishra,Ravindra Singh,Sanjeev Kumar Rai,Sunita Sharma,Surya Narayan,Vijay Chandra Srivastava Hon'ble Chandra Kumar Rai,J.
1. Heard Sri H.N. Singh, learned Senior Counsel assisted by Sri R.P.S. Chauhan & Sri Shadab Ali, learned counsel for the petitioners, Sri V.M. Zaidi, learned Senior Counsel assisted by Sri S.N. Shukla, Sri Ravindra Singh and Brijesh Ojha, learned counsel for the contesting respondent no.1.
2. The brief facts of the case are that plaintiff-respondent no.1 (Ajai Pal Singh) filed a suit under Section 229 B of U.P.Z.A. & L.R. Act on 13.1.1997 against dependants-petitioners (Mahendra Singh and Mahipal Singh) as well as State of U.P. & Nagar Nigam claiming 1/3 share in Plot No.438 area 1.31 and Plot No.742 area 0.85 total area 2.16 situated in Village- Majhola, Tahsil and District- Moradabad on the ground that plaintiff's father, namely, Ramesh Singh was son of Prem Singh and Ramesh Singh died in the life time of Prem Singh, as such, plaintiff is entitled to 1/3 share in the property. Defendants filed their written statement denying the plaint allegation to the effect that plaintiff (Ajai Pal Singh) is not son of Ramesh Singh and is wrongly claiming right over the property of Prem Singh inherited by defendants being sons of Prem Singh, the plea of limitation as well as res judicate were also raised in the written statement on the ground that earlier suit under Section 229 B of U.P.Z.A. & L.R. Act filed by plaintiff was dismissed by trial Court vide order dated 28.2.1990 with liberty to file fresh suit within two months, but the present suit has been filed after about seven years, the bar of Section 34 (5) of U.P. Land Revenue Act, 1901 was also raised in the written statement. Before the trial Court ten issues were framed and the parties adduced oral and documentary evidences in support of their cases. Trial Court after considering the entire evidence on record vide judgment and decree dated 13.4.2015 / 15.4.2015 dismissed the plaintiff's suit recording finding of fact that plaintiff has failed to prove that he is son of Ramesh Singh. Plaintiff challenged the judgment and decree of trial Court before Commissioner through appeal under Section 331 of U.P.Z.A. & L.R. Act which was dismissed by Additional Commissioner vide judgment and decree of the Court below. Plaintiff filed a second appeal under Section 331 (4) of U.P.Z.A. & L.R. Act before the Board of Revenue, U.P. at Allahabad which has been allowed by the Board of Revenue vide judgment dated 20.7.2018, hence this writ petition on behalf of defendants-petitioners.
3. This Court while entertaining the writ petition has passed the following interim order dated 13.9.2018:
"Heard counsel for the petitioner, Sri S.B. Singh holding brief of Sri Madan Singh, counsel for respondent no. 1, Sri Ratan Deep Mishra for respondent 3 and learned standing counsel representing respondent no. 2.
Contention of the counsel for petitioners is that although both the trial court as well as the first appellate court had dismissed the suit for declaration filed by respondent no. 1 under section 229-B of the U.P.Z.A..R. Act, yet the said suit was decreed by the Board of Revenue, U.P. at Lucknow in a second appeal preferred by respondent no. 1.
Perusal of the record indicates that the second appeal was allowed by the Board of Revenue, only on the ground that the civil court in Original Suit No. 355 of 2007, has passed a decree on 31.5.2017 holding Ajay Pal Singh-respondent no. 1 herein, to be son of late Ramesh Singh, son of Prem Singh and therefore he is the legal heir of late Ramesh Singh. Thus, the second appeal was decided on the basis of the decree dated 31.5.2017 passed in Original Suit No. 355 of 2007.
In this regard, the submission made by learned counsel for the petitioner is that the aforesaid decree dated 31.5.2017 is ex parte one and against that the petitioner has already moved an application under Order XIII Rule 9, C.P.C. which is still pending before the Civil Court.
The matter requires consideration.
As prayed, one month's time is allowed to the counsel for respective respondents to file counter affidavit.
List this petition immediately after one month for admission/final disposal.
Till next date of listing, parties shall maintain status quo on the spot as of date."
4. In pursuance of the order dated 13.9.2018, respondent nos. 1 & 2 have filed their counter affidavit along with stay vacation application and petitioners have filed his rejoinder affidavit also.
5. Counsel for the petitioner submitted that plaintiff is not son of Ramesh Singh as Ramesh Singh was bachelor and died issueless, plaintiff (Ajai Pal Singh) is son of one Deen Dayal and Smt. Brahma Devi, as such, plaintiff is illegally claiming right over the property of Prem Singh. He further submitted that the second suit filed by plaintiff in the year 1997 was barred by limitation / laches as well as res judicata as earlier suit filed by plaintiff was dismissed in 1990 with liberty to file fresh suit within two months but the second suit was filed after about seven years without any satisfactory explanation. He further submitted that in proceeding under Section 34 of U.P. Land Revenue Act an order for mutation was passed in favour of defendants / petitioners on the ground of succession as well as on the basis of Will and it was also decided that plaintiff- Ajai Pal Singh has no concern with the property of Prem Singh. Learned Senior Counsel for the petitioners further submitted that trial Court and first appellate Court have dismissed the plaintiff's suit and appeal after perusing the evidence on record recording finding of fact that plaintiff (Ajai Pal Singh) is not son of Ramesh Singh but Board of Revenue by passing cryptic order and without framing substantial question of law has allowed the second appeal, as such, the impugned judgment of Board of Revenue cannot be sustained in the eye of law. He further submitted that Board of Revenue without allowing the application filed under Order 41 Rule 27 of Civil Procedure Code, 2006 has considered the documents annexed along with the application filed under Order 41 Rule 27 of Civil Procedure Code, 2006. He further submitted that Board of Revenue has allowed the second appeal on the basis of judgment of Civil Court dated 31.5.2017 passed in Civil Suit No.355 of 2007 holding that Ajai Pal Singh is son of Ramesh Singh but the ex-parte judgment of Civil Court has been set aside by Civil Court vide order dated 13.4.2022 on the application under Order 9 Rule 13 of the Civil Procedure Code filed at the instance of defendants / petitioners, as such, the judgment of Board of Revenue cannot be sustained in the eye of law. Counsel for the petitioners further submitted that finding of fact recorded by trial Court and appellate Court have not been reversed by second appellate Court, as such, the judgment of second appellate Court allowing the second appeal setting aside the judgment of both the Courts below is manifestly erroneous. He further submitted that Board of Revenue has not mentioned anything that in what manner he is decreeing the plaintiff's suit for declaration, as such, the judgment passed by Board of Revenue cannot be sustained in the eye of law. He further submitted that writ petition be allowed and impugned judgment of Board of Revenue be set aside.
6. Counsel for the petitioners placed reliance upon following judgments on the point of scope of second appellate jurisdiction of Board of Revenue as well as scope of Order 41 Rule 27 of Civil Procedure Code:-
(i) 1985 R.D. 93, Sharda Devi Vs. Board of Revenue & Others.
(ii) 2017 (136) R.D. 501, Vikram Singh Vs. Deputy Director of Consolidation & Others.
7. On the other hand, learned Senior Counsel for the plaintiff-respondent submitted that Board of Revenue has rightly exercised the second appellate jurisdiction on the basis of Civil Court judgment dated 31.5.2017 which was very much in operation at the time of passing the judgment by Board of Revenue and Civil Court has held that plaintiff (Ajai Pal Singh) is son of Ramesh Singh. He further submitted that there is no requirement of framing the substantial question of law while deciding the second appeal by the Board of Revenue under Section 331 (4) of U.P.Z.A. & L.R. Act as held by Apex Court in the Case of State of Uttarakhand Vs. Mohan Lal AIR 2013 SC 38. He further submitted that limitation question has attained finality between the parties. He further submitted that there is no limitation for filing suit under Section 229 B of U.P.Z.A. & L.R. Act as held by this Court from time to time. He further submitted that plaintiff has filed civil revision against the judgment / order of Civil Court dated 13.4.1922 allowing the application under Order 9 Rule 13 of Civil Procedure Code and the civil revision is pending before this Court, as such, no interference is required against the impugned judgment of Board of Revenue and the writ petition is liable to be dismissed.
8. I have considered the argument advanced by learned Senior Counsel for the parties and perused the records.
9. There is no dispute about the fact that plaintiff-respondent no.1 (Ajai Pal Singh) filed a Suit No.8 of 1988-89, under Section 229B of U.P.Z.A. & L.R. Act which was dismissed vide order dated 28.2.1990 giving liberty to the plaintiff-petitioner no.1 to file fresh suit within two months, however, plaintiff-respondent no.1 filed fresh suit after about seven years being Suit No.1/4/15/2008-2009, Computerized Case No.D-200913540020, under Section 229B of U.P.Z.A. & L.R. Act on 13.1.1997 claiming 1/3 share in the property of Prem Singh in respect to Plot No.438 area 1.31 acres and Plot No.742 area 0.85 acre total area 2.16 acre situated at Majhola, Tahsil & District- Moradabad, the basis of claim of plaintiff / respondent no.1 was that he is son of Ramesh Singh who died in the life time of his father Prem Singh, as such, he is entitled to 1/3 share. The case of the plaintiff was denied in written statement to the effect that Ramesh Singh was bachelor and plaintiff is not son of Ramesh Singh. Trial Court after framing issues and considering the evidence on record has held vide judgment dated 13.4.2015 that plaintiff is not son of Ramesh Singh. The Court of Additional Commissioner has also dismissed the plaintiff's first appeal vide judgment dated 27.9.2016 but Board of Revenue vide judgment dated 20.7.2018 allowed the second appeal setting aside the judgment of the Court below and decreed the plaintiff's suit. There is also no dispute about the fact that plaintiff-respondent no.1 (Ajai Pal Singh) after filing a suit under Section 229B of U.P.Z.A & L.R. Act filed a Civil Suit No.355 of 2007 also for declaration that plaintiff is son of Ramesh Singh impleading Smt. Brahmo Devi, general people, Mahendra Pal, Mahipal as defendants, the civil Court by judgment and decree dated 31.5.2017 during the period when second appeal arising out of suit under Section 229B of U.P.Z.A. & L.R. Act was pending before the Board of Revenue held that plaintiff is son of Ramesh. Defendants-petitioners filed an application dated 4.8.2017, under Order 9 Rule 13 of Civil Procedure Code read with Section 151 of Civil Procedure Code for setting aside the ex-parte judgment and decree dated 31.5.2017 which has been allowed by trial Court vide order dated 13.4.2022 on cost of Rs.2000/- and Suit No.355 of 2007 has been restored to its original number for decision afresh. Against the order dated 13.4.2022 plaintiff-respondent no.1 filed a petition under Article 227 of the Constitution of India before this Court which was dismissed on the ground of alternative remedy, hence plaintiff-respondent no.1 filed a Civil Revision No.72 of 2022 before District Judge which has been admitted on 29.8.2022 and is pending for disposal.
10. The first point of consideration is whether the exercise of second appellate jurisdiction by respondent no.4 is proper and in accordance with law. It will be relevant to mention here that suit under Section 229B of U.P.Z.A. & L.R. Act filed by plaintiff-respondent no.1 in the year 1997 was dismissed vide judgment / decree dated 13.4.2015 recording finding of fact on Issue No.5, 6, 7 & 8 that plaintiff-respondent no.1 is not son of Ramesh Pal, as such, plaintiff is not entitled to 1/3 share, the finding on Issue No.2 was also recorded that suit is barred by limitation. The judgment of trial court was affirmed in first appeal before first appellate Court vide judgment dated 27.9.2016 but Board of Revenue has allowed the second appeal decreeing plaintiff's suit by passing cryptic judgment which is as follows:
" मैंने उभयपक्ष के विद्वान अधिवक्तागण द्वारा दाखिल लिखित बहस तथा पत्रावली पर उपलब्ध साक्ष्यों/अभिलेखों का परिशीलन किया। पत्रावली पर उपलब्ध साक्ष्यों/अभिलेखों के अवलोकन से विदित होता है कि प्रकरण में मुख्य रूप से विवाद यह है कि अजयपाल, रमेश पुत्र प्रेम सिंह के पुत्र हैं तथा उनके जायज वारिस हैं अथवा नहीं? सहायक कलेक्टर द्वारा पारित आदेश दिनांक- 13.04.2015 एवं डिक्री दिनांक- 15.04.2015 तथा अपर आयुक्त, मुरादाबाद मण्डल मुरादाबाद, के आदेश दिनांक- 27.09.2016 द्वारा अपीलकर्ता को मृतक रमेश का पुत्र सिद्ध न होने के कारण वाद/अपील निरस्त किया गया है, जबकि पत्रावली पर दाखिल फसली वर्ष 1420-1425 की छायाप्रति में महेन्द्र पाल सिंह पुत्र प्रेम सिंह अजयपाल पुत्र रमेश, श्रीमती ब्रह्मा देवी पत्नी स्व० रमेश तथा फसली वर्ष 1414-1419 की खतौनी में महेन्द्र पाल सिंह, महीपाल सिंह पुत्र प्रेमसिंह व अजयपाल सिंह पुत्र रमेश का नाम अंकित है तथा अजय पाल द्वारा प्रस्तुत भारत निर्वाचन आयोग द्वारा निर्गत प्रमाण-पत्र, राशन कार्ड एवं खतौनी में अजय पाल पुत्र रमेश अंकित है। मात्र निर्गम प्रमाण-पत्र में अजय कुमार अंकित होने से उसके अनुतोष समाप्त नहीं किया जा सकता है। इसके अतिरिक्त यह भी उल्लेखनीय है कि मुकदमे के दौरान अजय पाल द्वारा सिविल न्यायालय में अनुतोष प्राप्त किये जाने हेतु योजित किया गया जहां पर न्यायालय सिविल जज (जू०डि०)/एफ०टी०सी०, मुरादाबाद मूलवाद संख्या-355 सन् 2007 अजयपाल पुत्र स्व० रमेश बनाम श्रीमती ब्रह्मा देवी पत्नी स्व० रमेश, जनाता आम शहर मुरादाबाद, महेन्द्र पाल व महीपाल पुत्रगण प्रेमसिंह में पक्षकारों द्वारा दाखिल साक्ष्यों/अभिलेखों के परीक्षणोंपरान्त सिविल जज (जू०डि०)/एफ०टी०सी०, मुरादाबाद द्वारा पारित आदेश दिनांक- 31.05.2017 में अजयपाल को मृतक रमेश पुत्र प्रेम सिंह का पुत्र व उसका जायज वारिस माना गया है। उपरोक्त तथ्यों/अभिलेखों से स्वतः स्पष्ट होता है कि अजयपाल स्व० रमेश के पुत्र एवं उसका जायज वारिस है। इस प्रकार द्वितीय अपील स्वीकार किये जाने योग्य है।
अतः उपरोक्त विवेचना के आधार पर द्वितीय अपील स्वीकार की जाती है। सहायक कलेक्टर (प्रथम श्रेणी)/अपर नगर मजिस्ट्रेट (द्वितीय) मुरादाबाद द्वारा पारित आदेश दिनांक- 13.04.2015 एवं डिक्री दिनांक- 15.04.2015 तथा अपर आयुक्त, मुरादाबाद मण्डल मुरादाबाद, के आदेश दिनांक- 27.09.2016 को निरस्त किया जाता है। अवर न्यायालय के अभिलेख वापस भेजे जाय। बाद आवश्यक कार्यवाही पत्रावली दाखिल दफ्तर हो।
ह०अ० (आनन्द कुमार सिंह) सदस्य (न्यायिक) 20.07.2018"
11. In the earlier paragraph of the judgment of Board of Revenue cases of the parties were mentioned and by way of abovementioned, one paragraph only the judgment of reversal has been passed by the Board of Revenue without reversing the finding of fact recorded by trial Court on every issues. It is further material to mention that Board of Revenue has taken into consideration the Khatauni of 1420-1425 fasli, 1414-1419 fasli, identity card issued by Election Commission of India, Ration Card and judgment of Civil Court dated 31.5.2017 but the Board of Revenue has not taken into consideration the evidence relied upon by the trial Court while dismissing the plaintiff's suit. So far as judgment of Civil Court dated 31.5.2017 is concern, the same has been set aside by trial Court vide order dated 13.4.2022 and plaintiff is perusing the remedy of revision against the order dated 13.4.2022 so at present there is no decree of Civil Court that plaintiff is son of Ramesh Singh. It is also material that evidences can be considered is suit, appeal and second appeal according to procedure prescribed for the same in the Civil Procedure Code, the non-compliance of the procedure shall vitiate the proceeding. There is no order on record of the writ petition that the application for additional evidence filed by respondent no.1 in second appeal before the Board of Revenue has been allowed by the Board of Revenue. It is also not established whether the document which were taken into consideration by the Board of Revenue have been admitted / exhibited or not.
12. There is no proper exercise by the Board of Revenue while deciding the second appeal. This Court in the case reported in 1985 R.D. 93, Sharda Devi Vs. Board of Revenue Allahabad & Others on the point of second appellate jurisdiction of Board of Revenue has held as under:
"24. In the aforesaid provision the emphasis by the Legislature is on all the interest which the transferor is then capable of passing in the property. In other words it is only the interest of the transferor which he is capable of conveying in the property that would pass to* the vendee and in case he is not capable of passing any interest in the property, nothing would pass to the vendee. In the instant case the vendors were left with no rights as they lost all rights, title and interest in the plots in dispute in the aforesaid compromise and these plots were given in favour of the petitioner and in lieu thereof some corresponding plots were given to the vendors. Hence the vendors had no interest left so as to convey the same to the transferors. It is thus crystal clear that the vendees had not derived any right, title or interest in the sale deed executed by the vendors in their favour. In view of the discussion hereinbefore, I am of the view that the Board of Revenue has clearly exceeded jurisdiction under Section 100 C.P.C. read with Section 331(4) of the Act. There was no scope of the second appellate Court to set aside the findings of fact recorded by the Additional Commissioner about the fraudulent or collusive nature of the decree. The findings of fact were also based on evidence and howsoever grossly erroneous they may appear to be, when in fact they were not erroneous, much less grossly erroneous, the second appellate Court had no jurisdiction to interfere with the same. The vendors, respondent Nos. 7 and 8 had no right, title or interest left in the plots in dispute after admitting the claim of the petitioner in the compromise decree, so as to be able to transfer any interest by the sale deed dated 11.7.1966 in favour of vendees. Hence the vendees did not derive any title out of the sale deed.
25. In the result the writ petition succeeds and is allowed and the judgment and order of the Board of Revenue dated 30.7.1976 is hereby quashed. The petitioner would also be entitled to her cost."
13. The order passed by the Board of Revenue decreeing the plaintiff suit for declaration by passing cryptic judgment cannot be sustained in the eye of law. The manner in which impugned judgment has been passed by the Board of Revenue, can be a judgment of dismissal of second appeal, affirming judgment of courts below but this cannot be a judgment of allowing the second appeal and decreeing the suit under Section 229 B of U.P.Z.A. & L.R. Act in the exercise of second appellate jurisdiction.
14. So far as the limitation question is concerned, the law is well settled that there is no limitation for filing suit for declaration under Section 229 B of U.P.Z.A. & L.R. Act. 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 there is no limitation for filing suit under Section 229 B of U.P.Z.A. & L.R. Act, the paragraph no.6 of the judgment is relevant, which is as follows:
"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."
15. In the present case plaintiff-respondent no.1 has instituted earlier suit, under Section 229 B of U.P.Z.A. & L.R. Act in the year 1988-89 which was dismissed as withdrawn vide order dated 28.2.1990 with liberty to file fresh suit within two months but the subsequent suit was filed in the year 1997 without giving explanation for the laches of seven years but in view of ratio of law laid down in Pan Kumari (supra), the claim of plaintiff cannot be negatived on the ground of delay / laches.
16. Considering the entire facts and circumstances of the case judgment and decree dated 20.7.2018 passed by respondent no.4 (Board of Revenue, U.P. at Lucknow) cannot be sustained in the eye of law and the same is liable to be set aside. The writ petition is allowed in part. Impugned judgment dated 20.7.2018 passed by respondent no.1 (Board of Revenue, U.P. at Lucknow) is hereby set aside and the matter is remitted back before respondent no.4 who shall decide the second appeal filed by respondent no.1 afresh on merit in the light of the observation made in the judgment. Respondent no.4 shall conclude the exercise expeditiously preferably within period of six months.
17. No order as to costs.
Order Date :- 9.11.2022 Rameez