Allahabad High Court
Kulpavitra Tyagi vs Board Of Revenue Meerut And 27 Others on 13 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Neutral Citation No. - 2024:AHC:85222 Reserved On:15.4.2024 Delivered On:13.5.2024 Court No. - 48 Case :- WRIT - B No. - 54273 of 2014 Petitioner :- Kulpavitra Tyagi Respondent :- Board Of Revenue Meerut And 27 Others Counsel for Petitioner :- P.R. Maurya,Amitabh Agarwal,Shashank Maurya Counsel for Respondent :- C.S.C.,Mahesh Narain Singh,Sunil Kumar Singh Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Amitabh Agarwal, learned counsel for the petitioner, Mr. W.H. Khan, learned Senior Counsel assisted by Mr. Gulrez Khan, learned counsel for the contesting respondent nos.8 to 12, learned Standing Counsel for the State-respondents and Mr. Sunil Kumar Singh, learned counsel for the respondent- Gaon Sabha.
2. Brief facts of the case are that in Khewat of 1336 fasli, name of Mahal Sullarh Singh Bandobast Vah Sahab, Village- Kharkhauda was recorded in the name of father of Rohtash Singh (father of petitioner as well as respondent nos.8 to 11). In Khewat of 1336 fasli, plot no.1119, 1385 & 1386, total three plots area 4 bigha, 18 biswa were recorded as Sir in the name of Rohtash Singh, Babu Ram and Raghubir Singh. Plot no.183G along with 23 other plots total area 14 bigha 14 biswa & plot no.1083 area 15 biswa was recorded as Khudkasht in the 1333 fasli in the name of Chhatar Singh, grandfather of petitioner & respondent nos.8 to 12. Plot no.1119 along with other plots situated in Village-Kharkhauda, Pargana Sarawa, Tahsil- Meerut, District- Meerut was recorded in the name of Babu Ram, Raghubir Singh and Rohtash Singh son of Chhatar Singh having 1/3 share each in the khatauni of 1359 fasli. The aforementioned plots, which have been recorded in the Khatauni of 1359 fasli as Sir and Khudkasht has been recorded in the C.H. Form-11 as bhumidhari plot. During consolidation operation 1/3 share has been recorded in the C.H. Form 23 in Khata No.233 and other plots which have been recorded as having 1/3 share are plot nos.43, 50, 829, 830/1, 1083, 1084 total area 6 biswa 4 biswansi. In C.H. Form 45 new plot has been allotted to chak no.610, plot no.1518 area 5 bigha 2 biswa 11 biswansi, plot no.1529 area 7 bigha 15 biswa 6 biswansi total two plots total area 12 bigha 15 biswa 19 biswansi was recorded in the share of Rohtash Singh, father of the petitioner & respondent nos.8 to 11. In Khewat 1336 fasli, Village- Sadullapur @ Chandpur plot in dispute was recorded in the name of Chhatar Singh, grandfather of petitioner & respondent nos.8 to 12. In khatauni of 1336 fasli, plot no.589 area 17 biswa situated in Village- Sadullapur @ Chandpur, Tahsil and Pargana Sarawa, District- Meerut. Plot no.606 area 7 biswa plot no.609 area 12 biswa, plot no.625 area 1 bigha 1 biswa, plot no.626 area 8 biswa, plot no.636 area 19 biswa, plot no.641 area 14 biswa, plot no.642 area 2 bigha 12 biswa were recorded as Sir plots and Plot no.42 area 1 bigha 14 biswa, plot no.323 area 1 bigha 13 biswa, plot no.374 area 7 biswa, plot no.318 area 5 biswa, plot no.381 area 6 biswa, plot no.566 area 14 biswa total 6 plots, total area 4 bigha 13 biswa were recorded as Khudkast in the name of Chhatar Singh (grandfather of the petitioner and respondent nos.8 to 12). In Khatauni of 1359 fasli Mahal Sullarh Singh of Village- Sadullapur @ Chandpura, Pargana Saranwa, Tahsil- Hapur, District- Meerut (now new Tahsil-Meerut) was recorded in the name of Babu Ram, Raghubir Singh and Rohtash Singh son of Chhatar Singh as Sir & Khudkast. In the basic year khatauni (C.H. Form 11), the plots have been recorded in the name of Babu Ram, Raghubir Singh and Rohtash Singh son of Chhatar Singh having 1/3 share each. During consolidation proceeding C.H. Form 23 was issued in which 1/3 share has been given in the name of Rohtash Singh son of Chhatar Singh (petitioner's father). In C.H. Form-41 issued during consolidation operation (new no.318) having 1/3 share was issued in the name of Rohtash Singh (petitioner's father). In C.H. Form 45, plot no.318 area 8 bigha 2 biswa 1 biswansi was recorded in the name of Rohtash Singh (petitioner's father). Rohtash Singh died on 16.3.2001 leaving behind five sons, namely, Kulpavitra, Hem Dutt, Daleshwar, Dhirendra and Vipin and one daughter in law, Smt. Rajesh Tyagi wife of Vishwanath (son of Rohtash Singh). During consolidation proceeding petitioner was posted in force, as such, he could not participate in the consolidation proceeding for declaration of his right and title in respect to the plot in dispute, accordingly, share of the petitioner could not be determined by the consolidation authorities. Petitioner's father after retirement from service came to his village home and after enquiry it has been found that his name has not been recorded in the revenue record in respect to the plot in question, accordingly, petitioner filed a suit on 22.4.1996 under Section 229B / 176 of U.P. Zamindari Abolition & Land Reforms Act (hereinafter referred to as "U.P.Z.A. & L.R. Act), which was registered as suit no.165/96. Trial Court/ Additional City Magistrate/ Assistant Collector heard the aforementioned suit and vide order dated 17.9.1998 dismissed the aforementioned suit as barred by Section 49 of U.P.C.H. Act. Against the judgment and order dated 17.9.1998 passed by the trial Court, petitioner filed an appeal, under Section 331 of U.P.Z.A. & L.R. Act before the Commissioner, which was registered as appeal no.9/98 and the same was heard by the Additional Commissioner, Meerut Division, Meerut. The aforementioned appeal was dismissed vide judgment and order dated 11.4.2000. Petitioner further challenged the impugned judgments of trial Court dated 17.9.1998 as well as appellate Court dated 11.4.2000 before the Board of Revenue, which was registered as Second Appeal No.80/7M 1999-2000, under Section 331 (4) of U.P.Z.A. & L.R. Act. The Board of Revenue, Circuit Court, Meerut vide judgment dated 7.8.2014 dismissed the aforementioned second appeal, hence this writ petition on behalf of the petitioner for the following reliefs:
"i. A writ, order or direction in the nature of certiorari to quash the order dated 17.9.1998 passed by the Additional City Magistrate (Civil Lines)/ Assistant Collector, Meerut in suit no.165/1996 (Kulpavitra vs. State of U.P. and Others) (Annexure No.16 to this writ petition), order dated 11.4.2000 passed by the Additional Commissioner, Meerut Division, Meerut in Appeal No.9/98 (Kulpavitra vs. State of U.P. and Others) (Annexure No.17 to this writ petition) and judgment and order 7.8.2014 passed by Hon'ble Board of Revenue, Uttar Pradesh Circuit Court Meerut in Second Appeal No.80 Z.M. 1999-2000 (Kulpavitra vs. State of U.P. and Others) (Annexure No.19 to this writ petition). ii. A writ, order or direction in the nature of mandamus restrain the respondents that they may not transfer and change the nature of the land in dispute."
3. This Court vide order dated 10.10.2014 entertained the matter and granted interim order restraining the respondents from selling the property in dispute or creating any third party interest over it.
4. In compliance of the order dated 10.10.2014 parties have exchanged their pleadings.
5. Learned counsel for the petitioner submitted that the petitioner is real son of Rohtash Singh who was born on 25.7.1945 i.e. before date of vesting, as such, he has got birth right in the ancestral property as provided under Section 18 (1) (a) of U.P.Z.A. & L.R. Act but the impugned orders have been passed in illegal manner dismissing the petitioner's suit under Section 229B/176 of U.P.Z.A. & L.R. Act only on the ground of Section 49 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "U.P.C.H. Act"). He further submitted that the property in question is ancestral property, as such, the claim of the petitioner cannot be ignored in any manner. He next submitted that the suit under Section 229B of U.P.Z.A. & L.R. Act is suit of special character, as such, the same cannot be dismissed in arbitrary manner rather the same is to be decided after framing issues and giving opportunity to the parties to lead evidence in accordance with law. He also submitted that in view of the entry of the plot in question (Sir and Khudkasht) as well as in view of the birth of the petitioner before the date of vesting the claim of the petitioner cannot be negatived in view of the reference answered by Division Bench of this Court in Writ- B No.52717 of 2013 (Ram Briksha and Another Vs. Deputy Director of Consolidation & three others) reported in 2017 (6) ADJ 356. He further placed reliance upon the another judgment of this Court rendered in Writ- B No.356 of 2013 (Deepak Kumar and Others Vs. Board of Revenue and Others) decided on 21.10.2022 reported in (2023) 158 RD 429.
6. On the other hand, Mr. W.H. Khan, learned Senior Counsel assisted by Mr. Gulrez Khan, learned counsel for the contesting respondent nos.8 to 12 submitted that no claim was raised by petitioner during consolidation operation (1972 upto 1983), as such, the suit under Section 229B /176 of U.P.Z.A. & L.R. Act filed in the year 1996 has been rightly dismissed by the trial Court in view of the provisions contained under Section 49 of U.P.C.H. Act. He further submitted that since no objection was filed during consolidation operation by the petitioner, as such, the claim of the petitioner cannot be entertained by the revenue Court, under Section 229B / 176 of U.P.Z.A. & L.R. Act. He further submitted that finding of fact has been rightly recorded by all the three Courts while deciding the suit, appeal as well as second appeal, as such, no interference is required in the matter. He next submitted that the death of Chhatar Singh has been disputed by the petitioner but no document has been filed by the petitioner to demonstrate that Chhatar Singh has died in the year 1943. He also submitted that Chhatar Singh has executed sale deed on 5.8.1958, as such, the case of the petitioner that Chhatar Singh has expired in the year 1943 is totally false and the case of contesting respondents that Chhatar Singh has expired in the year 1968 is correct. He further submitted that in respect to Khasra no.527, the sale deed was executed in favour of Hem Dutt on 22.7.1982, which demonstrates that the claim setup by the petitioner in plaint under Section 229B of U.P.Z.A. & L.R. Act is totally false. He further submitted that the petitioner had seperated himself from the family long back and had no share or possession over any portion of disputed property, as such, no right will accrue to the petitioner. He further submitted placed reliance upon the judgment of this Court reported in 2022 (10) ADJ 158 (Mata Shiromani vs. State of U.P. & Others) on the point of Section 49 of U.P.C.H. Act.
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 / 176 of U.P.Z.A. & L.R. Act filed by the petitioner has been dismissed by the trial Court as barred by Section 49 of U.P.C.H. Act and the judgment of trial Court has been maintained in appeal as well as second appeal by the Court of Commissioner and Board of Revenue.
9. In order to appreciate the controversy involved in the matter, the family pedigree, which is mentioned in Paragraph no.1 of the plaint of suit under Section 229B / 176 of U.P.Z.A. & L.R. Act will be relevant for perusal, the same is as under:
सुल्हडसिंह | छत्तर सिंह _________________________|______________________ | | | बाबूराम रघुवीर सिंह रोहताश सिंह | | | धन प्रकाश प्रतिवादी संख्या8 | |_________________________ | | | | मणी प्रकाश प्रेमप्रकाश | प्रतिवादी प्रतिवादी | संख्या 4 संख्या 7 | _____________________________________________ |____ | | | | | | कुलपवित्र विश्वनाथ हेमदत्त डालेश्वर वीरेन्द्र विपनि कुमार (वादी) (मृतक) प्रतिवादी संख्या9
10. It is also relevant to mention that in the aforementioned suit trial court has framed 12 issues which will be relevant for perusal, the same are as under:
"1. क्या विक्रय पत्र दिनांक 11.02.63 एवं 1.8.82 को सन्दर्भ में वादी का वाद कालबाधित है?
2. क्या विक्रय पत्र की वैधता को निर्णित करने का न्यायालय उपरोक्त को क्षेत्राधिकार नहीं है?
3. क्या वाद वादी आवश्यक पक्षकार न बनाये जाने के दोष से दोषित है?
4. क्या वादी का वाद आबादी की भूमि के सम्बन्ध में कानून प्रगतिशील नहीं है जैसा कि प्रतिवाद पत्र की धारा 49 में कहा गया है?
5. क्या वादी का वाद धारा 220बी व 176 का जैड ए एन्ड एल० आर० एक्ट के प्राविधानों से बाधित है?
6. क्या वादी का वाद आवश्यक पक्षकार बनाये जाने के दोष से दूषित है?
7. क्या वाद का वाद 106 पंचायत राज एक्ट का नोटिस न दिये जाने के कारण खण्डित होने योग्य है?
8. क्या वादी का वाद धारा 80 सी०पी०सी० के प्राविधानों से दूषित है?
9. ब्यान वाद वादी धारा 49 चकबन्दी अधिनियम से बाधित होने के कारण प्रगतिशील नहीं है एवं निरस्त करने योग्य है?
10. क्या वाद वादी स्टोपल एवं एक्वीसेनस के सिद्धान्त से बाधित है?
11. क्या वादी आराजी निजाई में सह खातेदार है?
12. वादी किस अनुतोष को पाने का अधिकारी है?"
11. The trial Court decided the Issue No.9 relating to bar of Section 49 of U.P.C.H. Act as preliminary issue and dismissed the plaintiff's suit as barred by Section 49 of U.P.C.H. Act without considering the other issues framed in the suit.
12. The entries which are annexed as Annexure Nos.1 to 13 of the instant petition are relevant entry with effect from 1336 fasli upto close of consolidation operation in the village in the form of C.H. Form 45, which are to be examined by trial Court in accordance with law.
13. This matter was entertained on 10.10.2014 when the reference before the Division Bench on the point of Section 49 of U.P.C.H. Act was pending and now the reference has been answered by the Division Bench in Writ- B No.52717 of 2013 (Ram Briksha and Another Vs. Deputy Director of Consolidation & three others) vide judgment dated 16.5.2017, as such, the perusal of the ratio of law laid down by the Division Bench will be relevant, which is as under:
"The reference in question contains following questions:-
"(i) Whether use of words "could or ought to have been taken" in latter part of Section 49 of the Act, compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer, whose name is recorded in representative capacity, or they were willing to live jointly, due to situation of their family, i.e. (father and minor son), (mother and minor son), (brother and minor brother) and (some co-sharer was student and had gone abroad for study and fully depends upon other co-sharers) etc., to file an objection under Section 9 of the Act for separation of his share?
(ii) Whether by operation of law, the parties can be thrown into litigation against their will/need and by not raising claim to land or partition and separation of the chak their right to property can be taken away in spite of protection available under Article 19 (1) (f) and now Article 300-A of the Constitution?
(iii) Whether, in spite of well settled legal principle in respect of joint property, right of a co-sharer will come to an end under Section 49 of the Act, on the notification under Section 52, due to not claiming partition of his share and separate chak in his name, although, there had been no ouster from joint property?"
Issue No.I Whether use of words "could or ought to have been taken" in latter part of Section 49 of the Act, compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer, whose name is recorded in representative capacity, or they were willing to live jointly, due to situation of their family, i.e. (father and minor son), (mother and minor son), (brother and minor brother) and (some co-sharer was student and had gone abroad for study and fully depends upon other co-sharers) etc., to file an objection under Section 9 of the Act for separation of his share?
A. Because of the words "could or ought to have been taken" in latter part of Section 49 of the Act, same does not compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer whose name is recorded in representative capacity or they were willing to live jointly due to situation of their family and who have not filed an objection under Section 49 of the Act for separation of their share inasmuch as under the provisions of U.P. Consolidation of Holdings Act, 1953, it is the statutory obligation cast upon the authorities and the incumbent, who has been holding the property in question in the representative capacity to get the records corrected and in case in designed manner the obligation in question has not been discharged by Consolidation Authorities as well as by the incumbent holding the property in the representative capacity, then in such a situation Section 49 of the Act would not at all be attracted and such situation would be covered under the contingency of planned fraud to drop the name of other co-sharers from the revenue records.
Issue No.II Whether by operation of law, the parties can be thrown into litigation against their will/need and by not raising claim to land or partition and separation of the chak their right to property can be taken away in spite of protection available under Article 19 (1) (f) and now Article 300-A of the Constitution?
A. The answer is that a party cannot be thrown in litigation against their will/need and by not raising claim to land of partition and separation of chak, their rights to property cannot be taken away under the protection provided for under Article 19(1)(f)/ Article 300-A of the Constitution of India.
Issue No.III Whether, in spite of well settled legal principle in respect of joint property, right of a co-sharer will come to an end under Section 49 of the Act, on the notification under Section 52, due to not claiming partition of his share and separate chak in his name, although, there had been no ouster from joint property?
A. The rights of the co-sharers will not at all come to an end under Section 49 of the Act, on the notification under Section 52 due to not claiming partition of his share and separate chak in his name and till there is no ouster from the joint property his right in the property will continue to exist.
The reference is accordingly answered. The Writ Petition along with connected matters shall now be placed before the appropriate Bench according to roster for disposal in light of this judgement."
14. Hon'ble Apex Court recently in the case of Prashant Singh and others vs. Meena & Others (Civil Appeal No.8743-8744/2014) vide judgment dated 25.4.2024 has considered the scope of Section 49 of U.P.C.H. Act after considering the ratio of law laid down by the Apex Court in the case of Karbalai Begum vs. Mohd. Sayeed, (1980) 4 SCC 396, Amar Nath Vs. Kewla Devi, (2014) 11 SCC 273 & Attar Singh vs. State of U.P., 1959 Supp (1) SCR 928 and has held that the suit filed by the co-sharer cannot be dismissed as barred by Section 49 of U.P.C.H. Act.
15. In the instant matter in view of the Khewat entry of the plot in dispute w.e.f. 1336 fasli in the name of petitioner's father- Rohtash Singh, the suit under Section 229B of U.P.Z.A. & L.R. Act filed by the petitioner for declaration of his right as well as partition of his share in respect to the plot in question cannot be dismissed on the ground of Section 49 of U.P.C.H. Act. It is also material that the Khewat entry of 1336 fasli fully demonstrates that the plots in question were recorded as Sir-Khudcast plot in the name of petitioner's father along with other co-sharer. It is also material that the petitioner was born before the date of vesting.
16. Considering the revenue entry from 1336 fasli up to 1359 fasli as well the ratio of law laid down by the Division Bench of this Court in Ram Briksha (supra) as well as recent law laid down by Hon'ble Apex Court in Prashant Singh (supra), the suit of the petitioner under Section 229B of U.P.Z.A. & L.R. Act cannot be dismissed on the ground of Section 49 of U.P.C.H. Act without deciding other relevant issues in respect to the plot in question considering the revenue entries of the plot in dispute as well as other evidence in respect to the plot in question.
17. So far as scope of the suit under Section 229B of U.P.Z.A. & L.R. Act is concern this Court in the case reported in 2005 (99) RD 529 Pan Kumari vs. Board of Revenue, U.P. Allahabad has held that the suit under Section 229B of U.P.Z.A. & L.R. Act are suit of special character and no limitation is provided for filing suit under Section 229B of U.P.Z.A. & L.R. Act.
18. The case law cited by learned counsel for the contesting respondents shall not apply in the instant matter as in that case the plot was recorded as navin-parti during consolidation operation and civil suit filed by plaintiff was held to be barred by Section 49 of U.P.C.H. Act but in the instant matter plots were recorded as Sir / Khudcast and later on as bhumidhari in the name of predecessor of both parties.
19. Considering the entire facts and circumstances of the case, the impugned orders dated 17.9.1998 passed by the Additional City Magistrate (Civil Lines)/ Assistant Collector, Meerut in suit no.165/1996 (Kulpavitra vs. State of U.P. and Others), order dated 11.4.2000 passed by the Additional Commissioner, Meerut Division, Meerut in Appeal No.9/98 (Kulpavitra vs. State of U.P. and Others) and order 7.8.2014 passed by Board of Revenue, Uttar Pradesh Circuit Court Meerut in Second Appeal No.80 Z.M. 1999-2000 (Kulpavitra vs. State of U.P. and Others) are liable to be set aside and are hereby set aside.
20. The writ petition stands allowed and matter is remitted back before the Additional City Magistrate / Assistant Collector 1st Class, Meerut / respondent no.3 to register the suit on its original number and decide the same after affording proper opportunity of hearing to the parties to lead evidence in support of their cases according to issues framed in the suit in accordance with law, expeditiously preferably within a period of six months from the date of production of certified copy of this order before respondent no.3.
21. No order as to cost.
Order Date :- 13.5.2024 Rameez