Bisheswar Misra v. Board of Revenue — 1987 DIGILAW 381 (ALL)

JUDGMENT K.P. Singh, J. - This writ petition arises out of a suit u/s 60/180 of the U.P. Tenancy Act. Aggrived by the judgments of the appellate courts the Plaintiffs have approached this Court Under Article 226 of the Constitution. 2. Brief facts giving rise to the present writ petition are that the Plaintiffs along with husband of Defendant No. 1 were sir holders of the disputed land. It has been alleged that the Defendant No. 2 got sale deeds executed by the husband of Defendant No. 1 regarding the disputed land and had started claiming right and title to the area purchased by him, therefore, the necessity for the suit u/s 60/180 of the U.P. Tenancy Act arose to the Plaintiffs. 3. The claim of the Plaintiffs was contested by the Defendant No. 2 with the allegations that the Plaintiffs had no concern with the disputed land and that the Defendant No. 2 was sir holder of the area purchased and mentioned in Schedule 'D' of the plaint and that the suit was barred by limitation and that the suit was not maintainable u/s 60/180 of the U.P. Tenancy Act and that the revenue courts had no jurisdiction to try the suit and various other pleas were taken to negative the claim of the Plaintiffs. The issues framed in the judgment of the Trial court would indicate the nature of the pleas raised by the contesting Defendant. 4. The trial court through its judgment dated 21.10.74 accepted the claim of the Plaintiffs and decreed the suit as is evident from Annexure 1 attached with the writ petition. Against the judgment of the Trial Court the contesting Defendant preferred an appeal and the appeal was partly allowed by the lower appellate court through its judgment dated 19.06.1975 (see Annexure 1 attached with the writ petition). 5. During the pendency of the appeal a question arose as to whether the first appellate court had jurisdiction to hear the appeal in the facts and circumstances mentioned in the case. The appellate cpurt had held that it had jurisdiction to hear the appeal. Against the order of the appellate court holding jurisdiction in itself to hear the appeal the Plaintiffs had preferred a revision petition and the Plaintiffs had also preferred a second appeal against the final decision of the first appeal. The appellate cpurt had held that it had jurisdiction to hear the appeal. Against the order of the appellate court holding jurisdiction in itself to hear the appeal the Plaintiffs had preferred a revision petition and the Plaintiffs had also preferred a second appeal against the final decision of the first appeal. Thus the revision petition and the second appeal were decided by the learned Member Board of Revenue through his judgment dated 2.5.1978. Aggrieved by the judgment of the learned Member dated 2.5.1978 the Plaintiffs have approached this Court. 6. The learned Counsel for the Plaintiffs-Petitioners has contended before me that the first appellate court has acted illegally in interfering with the findings of fact recorded by the Trial Court, and it has wrongly observed that the possession of the Defendant over the area purchased by him had been established by oral evidence as the oral evidence had been supported by the Khasra Khatauni entries as well as the sale deed. It had also been emphasised that the second appellate court patently erred in confirming the judgment of the first appellate court on the ground that the finding of fact had been recorded by the first appellate court. 7. Learned Counsel for the opposite party has submitted in reply that the impugned judgments were immune from attack in writ jurisdiction as they did not suffer from any patent error of law and that the findings of fact recorded by the first appellate court can not be termed as perverse or without any basis in evidence. 8. During the course of arguments it was brought to my notice that the U.P. Tenancy Act had been repealed qua the area in dispute, yet the revenue courts have granted relief to the Plaintiffs without examining the rights of the parties under the provisions of the U.P. Zamindari Abolition and Land Reforms Act which became applicable to the disputed land in the year 1974. 9. Learned Counsel for the Plaintiffs-Petitioners placed reliance upon the ruling reported in Ram Nath Tiwari v. Ram Baran, 1968 RD 52 and has suggested that the Plaintiffs' suit could be tried under the provi sions of U.P. Tenancy Act in view of the provisions of U.P. Land Tenure (Legal Proceedings) Removal of Difficulties Order, 1952. 9. Learned Counsel for the Plaintiffs-Petitioners placed reliance upon the ruling reported in Ram Nath Tiwari v. Ram Baran, 1968 RD 52 and has suggested that the Plaintiffs' suit could be tried under the provi sions of U.P. Tenancy Act in view of the provisions of U.P. Land Tenure (Legal Proceedings) Removal of Difficulties Order, 1952. Learned Counsel for the contesting opposite party has met the aforesaid suggestion on behalf of the plain tiffs Petitioners by submitting that the U.P. Land Tenure (Legal Proceedings) Removal of Difficulties Order, 1952 is inapplicable to the area in question be cause no such order has been issued after the enforcement of U.P. Zamindari Abolition and Land Reforms Act to the disputed land. Learned Counsel for the opposite party has also placed reliance upon the findings recorded by the first appellate court and has emphasised that on the findings of fact the contesting Defendant has got a right in the disputed land and the claim of the Plaintiffs- Petitioners has been rightly negatived by the appellate court. 10. I have considered the contentions raised on behalf of the parties and I have gone through the judgments of the revenue courts. I have also examined the provisions of U.P. Tenancy Act as well as the provisions of U.P. Zamindari Abolition and Land Reforms Act. After hearing learned Counsel for the parties I think that the litigation giving rise to the present writ petition has been a futile exercise. 11. Before me both the parties have asserted their possession over the disputed land. It is necessary to mention that in the present writ petition the only land mentioned at Schedule 'D' in the plaint is in dispute, otherwise the Plaintiffs have succeeded before the revenue courts qua the plots mentioned at Schedule 'C'. 12. The perusal of the judgment of the Trial Court indicates that the entries in the Khatauni in favour of the contesting Defendant was wrong and was not made in pursuance of an order of a competent court, therefore, the entries were not relied upon by the Trial Court while examining the claim of the Defendant regarding possession over the disputed land. The first appellate court has placed reliance upon the entries in Khatauni and Khasra without meeting the reasoning of the Trial Court in this regard as the judgment of the first appellate court is based upon misreading of revenue entries in holding the possession of the contesting Defendant over the disputed land. Therefore, the first appellate court acted illegally in deciding the claim of the Defendant over the disputed land. The second appellate court has also acted illegally in not disturbing the finding recorded by the first appellate court when the findings were based on unauthorised entries. 13. Since the present suit has been filed u/s 60 of the U.P. Tenancy Act it is necessary to quote the section which is as below: The landholder may sue any person claiming to be tenant of a holding for a declaration of the right of such person. 14. It is note-worthy that the contesting Defendant had claimed the area purchased by him as Sir holder. Therefore, I think that the Plaintiff's suit was not maintainable. The Trial Court decided issue No. 6 by placing reliance over the rulings reported in Ram Narain Garg v. Kanchan Kaur, 1943 RD 503 and Muneshwar Pandey v. Ram Jagat Tiwari, 1944 RD 424. It did not examine the facts of the reported ruling wherein the Defendant was claiming right as a tenant whereas in the present case the contesting Defendant had claimed right as a Sir holder. Revenue entries also indicated the Defendant as Sir holder and Khudkasht-holder. In my opinion the provisions of Section 60 of the U.P. Tenancy Act were not at all attracted. An analogy of the dictum of law laid down by a learned Member, Board of Revenue in Kunji v. Durga Singh, 1942 RD 79 would be attracted to the facts and circumstances leading to the litigation between the parties. Therefore, the suit giving rise to the present writ petition was not maintainable. It is also well known that the change of the law should be taken into account by a court at the time of decision. The trial court acted illegally in not examining the claims of the parties in the light of the provisions of U.P. Zamindari Abolition and Land Reforms Act which became applicable to the disputed land in the year 1974. 15. The trial court acted illegally in not examining the claims of the parties in the light of the provisions of U.P. Zamindari Abolition and Land Reforms Act which became applicable to the disputed land in the year 1974. 15. It would be relevant to mention here that I agree with the submissions of the learned Counsel for the contesting Defendant-opposite party thai the provisions of U.P. Land Tenure (Legal Proceedings) Removal of Difficulties Order, 1952 would not at all be attracted to the facts and circumstances leading to the present writ petition. After the provision of Zamindari Abolition and Land Reforms Act were made applicable to the disputed land no such order in the nature of U.P. Land Tenure (Legal Proceedings) Removal of Difficulties Order, 1952 was issued, therefore, I am unable to accept the contention of the learned Counsel for the Petitioners that the Plaintiffs' suit could be decreed without examining the claims of the parties under the provisions of U.P. Zamindari Abolition and Land Reforms Act which had become applicable to the disputed land at the date of decision by the Trial Court. 16. I have already indicated above that the finding recorded by the first appellate court on the claim of Defendant's possession over the disputed land suffers from illegality as unauthorised revenue entries were relied upon by the first appellate court. 17. On the conclusions arrived at by me that the Defendant had claimed Sir-holder's right or Khudkasht right in the disputed land, a relevant question arises whether the appellate court had really jurisdiction to hear the appeal. No doubt the first appellate court deleted the ground in the memo of appeal regarding the question of jurisdiction and held that it had jurisdiction to hear the appeal because the contesting Defendant had not pressed the question of jurisdiction in the appeal but in law and fact if the Defendant had claimed Sir holder's right or Khudkasht right to the disputed land, the question of jurisdiction in appeal was very much involved and I think that the appellate courts were not right in deciding the question of jurisdiction. To my mind the findings recorded by the appellate courts on the question of Defendant's possession suffer from illegality as pointed out by me above as well as the findings appear to me without jurisdiction in the facts and circumstances involved in the case. To my mind the findings recorded by the appellate courts on the question of Defendant's possession suffer from illegality as pointed out by me above as well as the findings appear to me without jurisdiction in the facts and circumstances involved in the case. Since both the parties are claiming possession over the disputed land and more than 12 years have passed since the dispute between the parties, I think no useful purpose will be served by issuing any writ or direction in favour of the Plaintiffs-Petitioners. It would be enough to observe that the findings recorded by the revenue courts in the litigation giving rise to the present writ petition would not be treated as final between the parties and the claims of the parties shall be decided by the competent court in a properly constituted suit without being influenced by any observation made by any revenue court in the present litigation. 18. In law and fact the disputed land shall belong to that party which has been in possession over the disputed land for more than statutory period. The findings in the present litigation on the question of possession recorded by the revenue courts appear to me without jurisdiction as indicated above, therefore, the claims of the parties would be decided by the competent court hereafter without being influenced by any finding in this litigation. 19. According to me the Plaintiffs' suit was not maintainable u/s 60 of the U.P. Tenancy Act. I do not consider it a fit case where any writ can be issued in favour of the Plaintiffs-Petitioners in exercise of powers Under Article 226 of the Constitution This Court refrains from issuing any futile writ. 20. In the result, the writ petition fails and is accordingly dismissed. Parties are directed to bear their own costs.