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2007 DIGILAW 17 (ALL)

RAM CHANDRA SINGH v. BOARD OF REVENUE, ALLAHABAD

2007-01-04

KRISHNA MURARI

body2007
JUDGMENT Honble Krishna Murari, J.—Heard Sri D. S. M. Tripathi, learned Counsel appearing for petitioners, learned Standing Counsel appearing for respondents No. 2 and 3 and Sri V. K. Singh appearing for Gaon Sabha-respondent No. 4. 2. Dispute relates to plot No. 193 area 1.67 acres situate in village Babhiaon, Pargana Katehar, District Varanasi. Predecessor-in-interest of petitioners filed a suit under Section 229-B of U. P. Zamindari Abolition & Land Reforms Act (for short the “Act”) seeking declaration that they are Bhumidhars in possession of the land in dispute. The said suit was contested by defendants Gaon Sabha Babhiaon and State of U.P. A written statement was filed on behalf of Gaon Sabha admitting the claim of petitioner. District Government Counsel (Revenue) appearing on behalf of State of U. P. took time twice to file written statement but the same was not filed. The suit came to be decreed vide judgment and decree dated 31.7.1963. Subsequently, Gaon Sabha filed suit No. 190 of 1964 for cancellation of judgment and decree dated 31.7.1963 on the ground that decree was obtained by collusion and fraud. Trial Court vide judgment and decree dated 17.7.1965 dismissed the suit holding that decree is valid as the plaintiff failed to prove any fraud in obtaining decree. Judgment and decree dated 31.7.1963 decreeing the suit of petitioners as well as 17.7.1965 dismissing the suit filed by Gaon Sabha for cancellation of decree became final as it was not challenged. After lapse of about 27 years, respondent No. 4 Gaon Sabha filed an application dated 13.3.1990 to recall the judgment and decree dated 31.7.1963 on the ground that property in dispute belong to Gaon Sabha and decree was passed ex parte without hearing. Trial Court vide order dated 5.6.1992 allowed the application and recalled the judgment and decree dated 31.7.1963. Petitioners went up in revision. Revisional Court vide order dated 7.3.1965 made a recommendation to the Board of Revenue to allow the revision and set aside the order of trial Court dated 5.6.1992 and to dismiss the restoration application filed by Gaon Sabha. Board of Revenue vide order dated 29.3.1996 rejected the reference and confirmed the order dated 5.6.1992 passed by trial Court and directed the case to be decided afresh on merits. 3. Board of Revenue vide order dated 29.3.1996 rejected the reference and confirmed the order dated 5.6.1992 passed by trial Court and directed the case to be decided afresh on merits. 3. It has been urged by learned Counsel for petitioners that Gaon Sabha as well as State had full knowledge about the suit filed by petitioners as they had appeared in proceedings and written statement was also filed on behalf of Gaon Sabha and suit for cancellation of decree filed by Gaon Sabha was also dismissed and thus, there was no justification to file restoration application after lapse of 27 years. It has further been urged that trial Court as well as Board of Revenue have wrongly and illegally allowed the highly time barred restoration application filed by Gaon Sabha. 4. In reply, learned Standing Counsel and Sri V.K. Singh appearing for respondents have tried to justify the impugned order. I have considered the arguments advanced on behalf of the learned Counsel for the parties and perused the record. 5. There is no dispute about fact that suit No. 613 of 1963 filed by predecessor-in-interest of petitioners was contested by Gaon Sabha by filing written statement and the same was decreed by trial Court vide judgment and decree dated 31.7.1963 which became final between the parties. There is also no dispute about fact that suit No. 190 of 1964 filed by Gaon Sabha seeking cancellation of decree dated 31.7.1963 was also dismissed on 17.7.1965 which also became final. Thus the respondent-Gaon Sabha had full knowledge about suit No. 613 of 1963 and decree passed therein. Application filed by Gaon Sabha to recall judgment and decree dated 31.7.1963 filed after lapse of about 27 years was allowed by trial Court mainly on the ground that since the land in dispute belongs to Gaon Sabha as such limitation would not bar filing of application and petitioners cannot have perfect rights on the basis of possession. Same findings have been recorded by Board of Revenue while rejecting reference. 6. Both the Courts below have lost sight of the fact that there was no explanation for moving recall application after lapse of 27 years. Same findings have been recorded by Board of Revenue while rejecting reference. 6. Both the Courts below have lost sight of the fact that there was no explanation for moving recall application after lapse of 27 years. Both the Courts below also failed to consider that not only respondents had full notice and knowledge of suit filed by petitioners under Section 229-B of the Act but Gaon Sabha had also contested the same by filing written statement and it also filed a suit for cancellation of judgment and decree which was dismissed. Both the Courts below have also lost sight of fact that once suit filed by Gaon Sabha for cancellation of decree passed in suit under Section 229-B of the Act was dismissed and the said order became final, it was not open to move recall application. 7. Further, findings recorded by the trial Court as well as Board of Revenue that no body can perfect rights over the land of Gaon Sabha on the basis of possession is also based on total misreading. Suit filed by predecessor-in-interest of petitioners under Section 229-B of the Act was decreed not on the basis of possession but on the finding that land in dispute belong to one Rameshwar, maternal grand father of predecessor-in-interest of petitioners, and after his death same was inherited by them and they became Bhumidhar after enforcement of U. P. Zamindari Abolition & Land Reforms Act. However, due to mistake of Lekhpal, land in dispute came to be recorded in Gaon Sabha in Khatauni 1359 and 1370 F. 8. In the absence of any satisfactory explanation for filing recall application after 27 years despite knowledge of judgment and decree dated 31.7.1963, respondents No. 1 and 3 committed manifest error of law in allowing recall application filed by respondent-Gaon Sabha. 9. In view of the aforesaid discussions, impugned judgment dated 5.6.1992 passed by respondent No. 3 as well as 29.3.1996 and 29.5.1996 passed by respondent No. 1, Board of Revenue, cannot be sustained and are hereby quashed. Recall application dated 3.3.1990 filed by Gaon Sabha stands dismissed. Writ petition stands allowed. 10. However, in the facts and circumstances, there shall be no order as to costs. ———