Bhola Ram v. Board Of Revenue U. P. — 1990 DIGILAW 122 (ALL)

Judgment R.p.singh 1. By means of this writ petition the petitioner has prayed for quashing of the orders passed by the additional commissioner and the board of revenue, decreeing the suit of respondents 3 to 7 under section 229-b of up za and lr act. 2. The facts of the case briefly are that plaintiff-respondents filed a suit under section 229-b of up za and lr act, hereinafter referred to as the act, for a declaration that they are the sirdars of the plot in suit with the allegations that the plaintiff and defendants 8 to 10 were the zamindars but the name of defendants 8 to 10 alone were recorded over the plots in suit and the patwari of the village being enmical wrongly recorded the names of defendants 1 to 4 and that the plaintiff and defendants 8 to 10 initially filed a suit for declaration of their bhumidhari right before the civil court which was decreed on 1-12-59. The defendants 1 to 5 feeling aggrieved went up in appeal before the civil judge which was, however, dismissed on 19-11-60. During the pendency of the civil appeal it appears that consolidation proceedings started in the village under u p. Consolidation of holdings act. The defendants 1 to 5 feeling aggrieved against the decree passed by civil judge went up in second appeal before this court which was, however, allowed on 18-11-66 and the suit was dismissed in pursuance of which the names of defendants 1 to 5 were entered in the revenue papers on the basis of which on 20th july 1968 the defendants 1 to 5 who are the petitioners took possession over the land in suit. The plaintiffs' case is that the plaintiffs continued in possession over the land in suit and even after the close of the consolidation operation on 23-7-60 the plaintiffs continued to remain in possession and matured sirdari rights by prescription by remaining in possession for more than six years and hence the suit was filed on these allegations. The plaintiffs' case is that the plaintiffs continued in possession over the land in suit and even after the close of the consolidation operation on 23-7-60 the plaintiffs continued to remain in possession and matured sirdari rights by prescription by remaining in possession for more than six years and hence the suit was filed on these allegations. The suit was contested by the defendants 1 to 5 on the ground that the plaintiffs have not matured sirdari right and that in the earlier litigation before the civil court the plaintiffs suit for declaration of bhumidhari right was dismissed by the high court in second appeal on 18-11-66 and further that the suit is barred by section 49 of the u. P. Consolidation of holdings act. 3. The assistant collector 1st class on going through the evidence on record dismissed the suit. Feeling aggrieved the plaintiff-respondents went up in appeal before the additional commissioner who, however, allowed the appeal on the ground that the plaintiffs have matured sirdari right by remaining in adverse possession from 1369f to 1375f. Feling aggrieved the petitioners went up in second appeal before the board of revenue which was also dismissed. The petitioners now, feeling aggrieved against the orders passed by the board of revenue have preferred this writ petition. 4. Heard sri ramji saxena learned counsel for the petitioner and sri k. R. Singh learned counsel for the contesting respondents. Feling aggrieved the petitioners went up in second appeal before the board of revenue which was also dismissed. The petitioners now, feeling aggrieved against the orders passed by the board of revenue have preferred this writ petition. 4. Heard sri ramji saxena learned counsel for the petitioner and sri k. R. Singh learned counsel for the contesting respondents. The learned counsel for the petitioners submitted that since the earlier suit filed by the contesting respondents for declaration of their bhumidhari right in the year 1957 was ultimately dismissed on 18th November 1966 when the petitioners second appeal was allowed by the high court, the possession of the contesting respondents could in any case became adverse only after 18th November 1966 when the second appeal was decided by this court and since according to the case of the contesting respondents themselves the petitioners obtained possession on 20th july 1968, hence the contesting respondents could not mature sirdari rights by adverse possession for more than the prescribed period of limitation and that the doctrine of lis pendens contained in section 52 of the transfer of property act would enable the petitioners to overcome the consequences of the possession of the plaintiff respondents during the pendency of the earlier civil suit which terminated on 18th November 1966 by decision in the second appeal before this court and hence the doctrine of lis pendens would operate enabling the exclusion of the time during the pendency of the earlier civil suit filed by the plaintiff-respondents. The learned counsel for the petitioner secondly contended that the additional commissioner has erred in reversing the finding on the question of possession recorded by the trial court without properly assessing the evidence on record. 5. The learned counsel for the respondent contended that the doctrine of lis pendens contained in section 52 of the transfer of property act does not arrest the running of the period of limitation during the pendency of the earlier civil suit between the parties and extinction of title of the petitioners will not be hit by the doctrine of lis pendens simply because it started running during the pendency of the earlier civil suit between the parties. The learned counsel for the respondent also contended that the learned addl. The learned counsel for the respondent also contended that the learned addl. Commissioner had jurisdiction to reverse the finding regarding possession after reassessment of the evidence on record and this court in writ jurisdiction could not reappraise the evidence and reverse the finding on the question of possession recorded by the addl. Commissioner and the board of revenue. 6. Now coming to the first question, the contention of the learned counsel for the petitioner is that the doctrine of lis pendens contained in sec. 52 of the t. P. Act would enable the petitioner to exclude the period of the respondents possession during the pendency of the earlier civil suit between the parties and the respondents 1 and 2 have wrongly allowed the period of limitation to run for accrual of sirdari right in favour of the respondents during the pendency of the civil suit between the parties. Thus the contention of the petitioners' counsel is that the possession of the respondents during the pendeney of the earlier civil suit cannot be accounted for in their favour for starting the period of adverse possession and the possession of the respondents could start only after 18th November 1966 when the earlier suit was decided and hence the respondents have not matured sirdari rights by prescription. The learned counsel for the respondent, on the other hand, contended that the respondents 1 and 2 have rightly held that the adverse possession of the respondents started during the pendency of the earlier civil suit between the parties, and the limitation could not stop running merely because of the pendency of the suit between the parties wnich was finally dismissed on 18th November 1966 in second appeal by this court and in support of his contention the learned counsel for the petitioner has placed reliance on the case of rajendar singh v. Santa singh, air 1973 sc 2537 , where it is held that once the adverse possession has begun to run, it could not stop running merely because of the pendency of the suit for possession between the parties which was finally dismissed by the high court. In that case also before the supreme court an earlier suit filed by the respondents on 3-7-1940 for declaration of rights and possession of the land in dispute, was dismissed on 21-11-1958. In that case also before the supreme court an earlier suit filed by the respondents on 3-7-1940 for declaration of rights and possession of the land in dispute, was dismissed on 21-11-1958. Later on the plaintiff filed a suit for possession on 20-4-1959 when the question arose whether the adverse possession of the defendants would stop running during the pendency of the earlier suit between the parties. It was held by the hon'ble supreme court that the doctrine of lis pendens contained in section 52 of the transfer of property act would not arrest the running of period of limitation during the pendency of the earlier suit. It was observed by the hon'ble supreme court thus :- "it is very difficult to view the act of taking illegal possession of immovable property or continuance of wrongful possession, even if the wrong doer be a party to the pending suit, as a "dealing with" the property otherwise than by its transfer so as to be covered by section 52 of the transfer of property act. The prohibition which prevents the immovable property being "transferred or otherwise dealt with" by a party is apparently directed against some action which would have an immediate effect, similar to or comparable with that of transfer but for the principle of lis pendens. Taking of illegal possession or its continuance neither resemble nor are comparable to a transfer. They are one-sided wrongful acts and not bilateral transactions of a kind which ordinarily constitute "deals" or dealings with property (e.g. Contracts to sell). They cannot confer immediate rights on the possessor. Continued illegal possession ripens into a legally enforceable right only after the prescribed period of time has elapsed. It matures into a right due to inaction and not due to the action of the injured party which can approach a court of appropriate jurisdiction for redress by a suit to regain possession. The relief against the wrong done must be sought within the time prescribed. This is the only mode of redress provided by law for such cases. It matures into a right due to inaction and not due to the action of the injured party which can approach a court of appropriate jurisdiction for redress by a suit to regain possession. The relief against the wrong done must be sought within the time prescribed. This is the only mode of redress provided by law for such cases. Section 52 of the transfer of property act was not meant to serve, indirectly, as a provision or a substitute for a provision of the limitation act to exclude time." It was further observed by the supreme court that the object of law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by parties own inaction, negligence or latches. In the present case i fail to see how the petitioners could complain hardship when their own negligence or failure to act in time enabled the contesting respondents to acquire rights by reason of operation of law of limitation. Hence there are no merits in the submission made by learned counsel for the petitioners that even if the plaintiff-respondents came in possession during the pendency of the earlier civil suit between the parties, they cannot acquire rights by adverse possession due to the doctrine of lis pendens. The contesting respondents, therefore, rightly have been held to have acquired sirdari rights by prescription by remaining in possession over the plots in suit for more than six years from 1369 f to 1375 f. Now coming to the second submission of the learned counsel for the petitioners that the learned additional commissioner had erroneously reversed the finding on the question of possession recorded by the trial court, i find no merits in this submission also. From the perusal of the order passed by the learned additional commissioner i find that after reassessment of the evidence on record he had believed the evidence led by the contesting respondents regarding their possession from 1369f to 1375f in support of which they led oral and documentary evidence. From the perusal of the order passed by the learned additional commissioner i find that after reassessment of the evidence on record he had believed the evidence led by the contesting respondents regarding their possession from 1369f to 1375f in support of which they led oral and documentary evidence. The additional commissioner after appraisal of the evidence on record held that the contesting respondents have matured sirdari rights by remaining in possession for more than six years from 1369f to 1375f and it is not open to this court to reappraise the evidence and reach a finding on the question of fact contrary to those rendered by the additional commissioner and the board of revenue. It has been held in the case of harbansh lal v. Jagmohan saran, air 1986 sc 302 , that there is no sanction enabling the high court to reappraise the evidence and reach a finding of fact contrary to those rendered by an inferior court or subordinate court and when the high court proceeds to do so it acts plainly in excess of its powers. Earlier the supreme court in the case of munni lal v. Prescribed authority, air 1978 sc 29 , has observed thus :- "it is not for the high court in the exercise of its jurisdiction under article 226 of the constitution to reappraise the evidence and come to its own conclusion which may be difficult from that reached by the district judge or the prescribed authority." Hence it is not open to this court to disturb the finding regarding possession of the contesting respondents from 1369f to 1357f and consequent accrual of sirdari right by virtue of their continued possession during that period. 7. In the result the writ petition fails and is dismissed. Petition dismissed.