Allahabad High Court
Gaya Prasad (Since Deceased) And 6 ... vs State Of U.P. And 5 Others on 18 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:8855 Court No. - 49 Case :- WRIT - B No. - 4181 of 2023 Petitioner :- Gaya Prasad (Since Deceased) And 6 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Santosh Kumar Upadhyay,Vinod Kumar Upadhyay Counsel for Respondent :- C.S.C.,Azad Rai,Kunal Shah,Priyansh Shukla,Suvansit Kumar Jaiswal Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Santosh Kumar Upadhyay & Mr. Vinod Kumar Upadhyay, learned counsel for the petitioners, Mr. Kunal Shah, learned counsel for respondent no.5, Mr. Mridul Kumar, learned Standing Counsel for the State-respondents and Mr. Azad Rai, learned counsel for the respondent no.6- Gram Sabha.
2. Brief facts of the case are that the dispute relates to plot no.1120 area 0.034 hectare, 53M area 0.263 hectare and 1119 area 0.160 hectare total 3 plots area 0.457 hectare. One Rajendra Kumar son of Late Peetambar Nath (son of respondent no.5) filed a suit under Section 229B of U.P.Z.A. & L.R. Act for declaration impleading State of U.P. and Gaon Sabha as defendants with the prayer that plaintiff be declared bhumidhar of the plot no.1120, 53M, 1119 total area 0.657 hectare. The aforementioned case was registered as Case No.200 of 1997 before Sub-Divisional Officer, Sirathu, District- Kaushambi. The issues were framed in the aforementioned suit. The parties adduced evidence in support of their case. Trial Court / Sub-Divisional Magistrate vide judgment and decree dated 26.8.1997 decreed the plaintiff suit and ordered to record the name of the plaintiff/ Rajendra Kumar as bhumidhar of the plot in question after expunging the entry of banjar from the revenue records. State / gaon sabha has not challenged the judgment and decree dated 26.8.1997 passed by the trial Court. Petitioners challenged the judgment and decree dated 26.8.1997 in appeal under Section 331 (3) of U.P.Z.A. & L.R. Act after about 19 years along with the prayer for condonation of delay which was registered as Appeal No.54 of 2015-2016 (Computerized Case No.C2016020000248) on the ground that the petitioners being member of joint Hindu family is also entitled 1/2 share in the disputed property of Suit No.200 of 1997 in which judgment and decree was passed on 26.8.1997. The aforementioned appeal was heard by respondent no.3 / Additional Commissioner-Ist Allahabad Division, Allahabad and vide judgment and order dated 10.11.2017 appeal was allowed and matter was remanded back before trial Court to decide the suit afresh after giving opportunity of hearing to the petitioners. Respondent no.5 challenged the jugment and decree dated 10.11.2017 passed by respondent no.3 before respondent no.2- Board of Revenue, U.P. at Allahabad through second appeal under Section 331 (4) of U.P.Z.A. & L.R. Act, which was registered as Second Appeal No.2861 of 2007 (Computerized Case No.AL20170242002861) before respondent no.2/ Board of Revenue. The second appeal was heard by respondent no.2 and vide judment dated 14.9.2023, second appeal was allowed setting aside the appellate order dated 10.11.2017 and maintained the judgment and decree of the trial Cour dated 26.8.1997, hence this writ petition for quashing the impugned judgment dated 14.9.2003 passed by respondent no.2- Board of Revenue.
3. Learned counsel for the petitioners submitted that the petitioners claimed 1/2 share in the disputed property being member of joint Hindu family as well as on account of joint possession over the disputed property, as such, the appeal filed by petitioners under Section 331 (3) of U.P.Z.A. & L.R. Act against the judgment and decree of the trial Court was rightly allowed and matter was remanded back for fresh consideration of the suit in accordance with law. He further submitted that the second appeal filed on behalf of respondent no.5 under Section 331 (4) of U.P.Z.A. & L.R. Act against the remand order passed in appeal by Commissioner was not maintainable but the same has been illegally allowed setting aside the appellate order and affirming the judgment and decree of the trial Court. He further submitted that the Board of Revenue has decided the second appeal in ex-parte as well as arbitrary manner. He further submitted that in respect to the subsequent substantial question of law which were framed in second appeal, no opportunity was given to the petitioners to argue against those substantial question of law, which were framed subsequently. He next submitted that in any case the matter can be remanded to the first appellate Court to decide the appeal under Section 331 (3) of U.P.Z.A. & L.R. Act afresh rather to maintain the judgment and decree of the trial Court. He also submitted that respondent no.2/ Board of Revenue has failed to consider that the petitioners being member of the same family are also entitled 1/2 share in the disputed property. He further submitted that issue relating to the non-compliance of the provisions contained under Order 41 Rule 31 of Code of Civil Procedure was never raised before the Court concerned, hence plaintiff-respondent cannot raised the same before the second appellate Court. He also submitted that the impugned judgment passed by respondent no.2/ Board of Revenue be set aside and order passed by respondent no.3/ Additional Commissioner-Ist, Allahabad Division, Allahabad be maintained.
4. On the other hand, Mr. Kunal Shah, learned counsel for respondent no.5 submitted that the suit under Section 229B of U.P.Z.A. & L.R. Act was filed by son of respondent no.5 impleading the State and Gaon Sabha as plots in dispute were recorded as banjar in the revenue records. He further submitted that the proper procedure for deciding the suit under Section 229B of U.P.Z.A. & L.R. Act was followed i.e. framing the issues in the suit and giving parties to lead evidence. He next submitted that the trial Court vide judgment and decree dated 26.8.1997 decreed the plaintiff suit and ordered to record the name of plaintiff (son of respondent no.5) over the plot in dispute after expunging the entry of banjar. He further submitted that the State/ Gaon Sabha has not challenged the judgment and decree of trial Court before any Court, as such, the same has attained finality. He next submitted that after 19 years appeal under Section 331 (3) of U.P.Z.A. & L.R. Act was filed by the petitioners who were not parties in the suit. He next submitted that the appeal was entertained in arbitrary manner at the instance of the petitioners. He further submitted that the Additional Commissioner has illegally allowed the appeal setting aside the judgment and decree of the trial Court and remanded the matter before trial Court for fresh trial of the suit which is abuse of process of law. He also submitted that respondent no.5 filed second appeal before respondent no.2/ Board of Revenue, which has been rightly allowed after framing substantial question of law in accordance with law. He also submitted that the petitioners cannot challenged the judgment and decree of the trial Court after 19 years in appeal rather they can file their fresh suit for declaration of their rights. He further submitted that remand order passed by the Additional Commissioner in appeal was wholly illegal as petitioners who have filed appeal before Commissioner were not party in the suit, as such, they cannot maintain the appeal before the appellate Court. He next submitted that the second appellate jurisdiction has been exercised in accordance with law, which requires no interference by this Court under Article 226 of the Constitution of India. He placed reliance upon the judgment of this Court passed in Writ- C No.47159 of 2016 {Sudhakar Rao Getha vs. Additional Commissioner (Administration) Varanasi and 14 Others} dated 13.9.2016 in order to demonstrate that in a suit for declaration, a person cannot be impleaded being co-sharer of the plaintiff rather the person concerned who is claiming impleadment should file his separate suit for declaration of his right.
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 of U.P.Z.A. & L.R. Act filed by the son of respondent no.5 was decreed by the trial Court against the State and Gaon Sabha. There is also no dispute about the fact that the State and Gaon Sabha has not challenged the judgment and decree of the trial Court. There is also no dispute about the fact that the appeal filed after 19 years on behalf of petitioners who were not party in suit has been allowed by the first appellate Court and matter has been remanded back before trial Court for fresh trial of the suit. There is also no dispute about the fact that the second appeal filed on behalf of respondent no.5 has been allowed and judgment passed by the first appellate Court has been set aside affirming the judgment and decree of the trial Court.
7. It is relevant to mention that the petitioners were not party in the suit under Section 229B of U.P.Z.A. & L.R. Act rather the suit was filed by son of respondent no.5 in respect to the property which is recorded as banjar and the trial Court has decreed the plaintiff suit for recording the plaintiff as bhumidhar of the plot in dispute after expunging the entry of banjar, as such, petitioners cannot file appeal before appellate Court against the judgment and decree of the trial Court. The first appellate Court has illegally entertained the appeal filed by the petitioners after 19 years and remanded the matter for fresh trial before the trial Court, which is abuse of process of law. This Court in the case of Sudhakar Rao Getha (supra) has held that a person cannot be impleaded being co-sharer of the plaintiff in suit under Section 229B of U.P.Z.A. & L.R. Act rather the person concerned who is claiming impleadment should file his separate suit for declaration of his right. Relevant paragraph of the judgment passed in the aforementioned Sudhakar Rao Getha (supra) are as follows:
"Under the circumstances, therefore, in my considered opinion, no effective relief can be granted to the petitioner, even if his impleadment application is allowed.
Interest of justice would stand served in case the petitioner also files a suit for declaration regarding the plot in question and thereafter applies to get both the suits connected, which would have to be ordered, as the subject matter of both the suits, would be identical.
In view of the above discussion, this Court finds that the impleadment of the petitioner in the suit filed by the plaintiff respondents would be exercised in futility. I therefore, do not consider it appropriate to enter into the controversy as to whether, the impleadment application has rightly been rejected or not.
The writ petition is therefore, liable to be dismissed, granting liberty to the petitioner to file a suit for declaration regarding plot no.837/2 and to get it connected with the pending suit, instituted by the plaintiff respondents.
Only after the petitioner institutes a suit for declaration in his favour can any effective relief be granted to him if he is able to establish his claim.
The writ petition is accordingly, dismissed."
8. The Board of Revenue while deciding the second appeal has recorded finding of fact that petitioners cannot maintain their appeal under Section 331 (3) of U.P.Z.A. & L.R. Act after 19 years against the judgment and decree of trial Court on the ground that the petitioners are member of joint Hindu family along with plaintiff.
9. It is settled law that being member of joint Hindu family every co-sharer cannot be given right in the property rather they have to prove their case that the property in question is the joint acquisition of the joint Hindu family. In the present case, the property in dispute was recorded as banjar and the son of respondent no.5 has filed the suit under Section 229B of U.P.Z.A. & L.R. Act claiming his particular right in respect to the plot in question impleading the State and Gaon Sabha, as such, petitioners cannot say that he is also entitled to be recorded along with the plaintiff being co-sharer of the plot in question rather they should file their separate suit for deceleration of their right, if any.
10. Considering the entire facts and circumstances, no interference is required in the matter.
11. The writ petition is dismissed, accordingly.
Order Date :- 18.1.2024 Rameez