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Uttarakhand High Court · body

2013 DIGILAW 27 (UTT)

KALYAN SINGH v. BOARD OF REVENUE

2013-01-16

B.S.VERMA

body2013
JUDGMENT Hon’ble B.S. Verma, J. Since in all these writ petitions, the judgment and order under challenge is same, therefore, for the sake of convenience, they are being decided together by this common judgment and order. 2. By means of Writ Petition No.752 of 2007, the petitioner Kalyan Singh has sought a writ in the nature of certiorari quashing the impugned judgment and order dated 31.7.1989 passed by the Board of Revenue in Second Appeal No.13(z) of 1985-86. 3. By means of Writ Petition No.4483 of 2001, the petitioner Ramji Lal has sought a writ in the nature of certiorari quashing the order dated 31.7.1989 passed by respondent no.1/Board of Revenue, order dated 30.9.1985 passed by respondent no.2/Additional Commissioner and the order dated 6.8.1985 passed by respondent no.3 / Assistant Collector-I. 4. By means of Writ Petition No.305 of 2001, the petitioners Vijay Singh and Mahendra and others have sought a writ in the nature of certiorari quashing the order dated 31.7.1989 passed by respondent no.1/Board of Revenue, order dated 30.9.1985 passed by respondent no.2/Additional Commissioner and the order dated 6.8.1985 passed by respondent no.3/Assistant Collector-I. 5. Briefly stated, facts of the case, giving rise to the writ petition are, that Kalyan Singh S/o Late Khushi Ram filed a suit u/s 229-B of U.P. Zamindari Abolition and Land Reforms Act, alleging that the land in dispute is an ancestral land and the plaintiff has succeeded share of his father Khushi Ram and that his share is 1/2. He further alleged that as Pyara had died issueless his share had devolved upon Khushi Ram and Ramji Lal and the name of the plaintiff had also been recorded in the revenue record but during the consolidation operation the defendant Ramji Lal (the petitioner in WPMS No.4483 of 2001) got the name of the plaintiff Kalyan expunged and instead got the names of Vijay Singh and Mahendra Singh recorded in the revenue record as sons of Pyara, though they are the sons of Ramji Lal. The suit was contested by filing written statement by Ramji Lal as well as Vijay Singh and Mahendra Singh claiming themselves as sons of Pyara and not of Ramji Lal. It was alleged that Kalyan Singh is also not son of Khushi Ram because he had died issueless. The suit was contested by filing written statement by Ramji Lal as well as Vijay Singh and Mahendra Singh claiming themselves as sons of Pyara and not of Ramji Lal. It was alleged that Kalyan Singh is also not son of Khushi Ram because he had died issueless. It was further alleged that a single suit could not have been filed about all the plots because Ramji Lal and the sons of Pyara, i.e., Vijay Singh and Mahendra Singh are in separate possession of their shares and that the suit is barred by section 34 of the Specific Relief Act. In the alternative, it was alleged that the rights of the plaintiff have extinguished because of having been out of possession for more than the prescribed period. According to the plaintiff Kalyan Singh, he was minor during the consolidation proceedings and Ramji Lal got the names of Vijay Singh and Mahendra recorded in the land in dispute. On the basis of pleadings, necessary issues were framed by the Assistant Collector. Both the parties filed documentary as well as oral evidence. On the basis of documentary evidence, i.e., Voter list and Pariwar Register and the revenue record of 1359 Fasli, the Assistant Collector came to the conclusion that plaintiff Kalyan Singh is son of Khushi Ram and had also held that Vijay Singh and Mahendra Singh are sons of Ramji Lal and not of Pyara and decreed the suit holding the plaintiff to be co-tenant alongwith Ramji Lal. By the order impugned order dated, the trial court ordered to expunge the name of Vijay Singh, Mahendra Singh and Ramji Lal from the land of Kalyan Singh. Aggrieved by the order of the Assistant Collector dated 30.9.1985, Ramji Lal filed an appeal no.6/1985-86. Cross objections were also filed by Vijay Singh and Mahendra. By an order of Additional Commissioner dated 6.8.1986, appeal was also dismissed. Further aggrieved by the judgment and decree of the first appellate court, second appeal no.14(z) of 1986-87 was preferred by Ramji Lal and second appeal no.13(z) of 1985-86 was preferred by Vijay Singh and Mahendra Singh. Both the appeals were heard together by the learned Board of Revenue. Vide order dated 31.7.1989, appeals were partly allowed. Further aggrieved by the judgment and decree of the first appellate court, second appeal no.14(z) of 1986-87 was preferred by Ramji Lal and second appeal no.13(z) of 1985-86 was preferred by Vijay Singh and Mahendra Singh. Both the appeals were heard together by the learned Board of Revenue. Vide order dated 31.7.1989, appeals were partly allowed. Judgements and decrees of both the courts below in respect of plot no.117/1 area 1-0-0, 274/1 area 1-5-0, 274/3 area 20-17-5 and 316/1 area 11-8-16 total area 34-11-1 were upheld and the plaintiff was declared co-bhumidhars of these plots alongwith Ramji Lal. The judgments and decrees of both the courts below in respect of plot no.117/2 area 0-0-10, 274/4 area 11-1-3 and 316/2 area 5-14-6 total area 17-5-11 and the land recorded in plot no.117/3 area 0-10-0, 274/2 area 11-1-2 and 316/3 area 5-14-8 total area 17-5-10 were set aside and the suit was remanded back to the trial court to frame an issue about the suit being barred by section 34 of the Specific Relief Act and to decide it afresh. Aggrieved by the judgment and order dated 31.7.1989 passed by Board of Revenue in appeal no.13(z) of 1985-86 filed by Vijay and Mahendra, Kalyan Singh has filed Writ Petition No.752 of 2007 (M/S). Against the judgments and decrees of the courts below, Ramji Lal has filed Writ Petition No.4483 of 2001 (M/S) and Vijay and Mahendra Singh have filed Writ Petition No.305 of 2001 (M/S). 6. Counter and rejoinder affidavits have been filed by the parties in all the writ petitions. The pleadings which were raised before the trial court have been reiterated in these petitions as well as counter and rejoinder affidavits. 7. Sri Siddhartha Singh, learned counsel for the petitioner Ramji Lal has firstly contended that the first appellate court has committed manifest error of law in not considering the provisions of Order 41 Rule 31 of C.P.C. since in view of Section 341 of U.P.Z.A. and L.R. Act the provisions of C.P.C. is applicable. Therefore the judgment of the first appellate court is bad in law. Further, cross objections filed by Vijay Singh and Mahendra Singh has not been dealt with in the impugned judgment. 8. Therefore the judgment of the first appellate court is bad in law. Further, cross objections filed by Vijay Singh and Mahendra Singh has not been dealt with in the impugned judgment. 8. It was next contended that plaintiff/petitioner Kalyan singh had sold the land in question during the pendency of second appeal and further it was mortgaged to the respondent nos.6, 7 and 8, i.e., Subhash, Sanjeev and Smt. Saroj. Furthermore, Kalyan Singh filed a suit for cancellation of sale deed which was dismissed by the civil court and the mortgage was made against the provisions of section 155 of U.P.Z.A. & L.R. Act. Learned trial court as well as the first appellate court has misread the evidence and judgment are perverse and liable to be set aside. 9. Sri Sharad Sharma, learned senior counsel with Sri Arvind Vashishtha, learned counsel appearing for plaintiff/petitioner Kalyan Singh has contended that the name of Pyara was never recorded in revenue record 1359 F. Therefore, the name which was recorded during the consolidation proceedings by the Consolidation authority in place of Kalyan Singh was recorded with the collusion of sons of Ramji Lal. They are sons of Ramji Lal and not of Pyara. If for the sake of arguments, Vijay and Mahendra are supposed to be sons of Pyara, then in that case also, their name cannot be recorded in place of Khushi Ram who was the real brother of Ramji Lal and who died after the death of Pyara Singh. This fact is not disputed that the name of nephew cannot be recorded in view of section 171 of the U.P.Z.A. & L.R. Act. The name of brother can only be recorded when no son and widow survives. The living brother was Ramji Lal. The plaintiff has also denied this fact that Ramji Lal ever succeeded the land of Khushi Ram. 10. Learned senior counsel has further contended that the petitioner Kalyan Singh is son of Khushi Ram. In support of his contention, he placed reliance on a copy of Pariwar Register, voter list and khatuni 1359F, on which basis the learned Assistant Collector decreed the suit of plaintiff Kalyan Singh. In rebuttal, defendant has not filed any documents before the trial court to show that Kalyan Singh was the son of Khushi Ram. Therefore, Assistant Collector has rightly decreed the suit. 11. In rebuttal, defendant has not filed any documents before the trial court to show that Kalyan Singh was the son of Khushi Ram. Therefore, Assistant Collector has rightly decreed the suit. 11. It is further contended that in the Pariwar Register name of Vijay and Mahendra was shown as sons of Ramji Lal. 12. During the course of argument, this fact has not been denied that the land was sold but it was argued that if any land has been transferred during pendency of suit then the provision of section 52 of Transfer of Property Act would be applicable. The possession of plaintiff would be seen on the date of suit. The suit cannot be treated as infructuous if the transfer has been made during the pendency of suit proceedings. The appeal is also in continuation of suit proceedings. 13. It is further contended that so far as the appeal of Ramji Lal is concerned that has been dismissed by the Board of Revenue and the appeal of Vijay and Mahendra Singh has been remitted on the issue of section 34 of Special Relief Act. It is contended that since the plaintiff and the defendant are co-tenure holders, therefore, provisions of section 34 are not attracted in the case at hand and the Board of Revenue has wrongly remanded the case so far as the appeal of Vijay and Mahendra is concerned and further the name of Vijay and Mahendra cannot be recorded in any case on the land in question. 14. I have heard the learned counsel for the parties and perused the judgment of the Assistant Collector, first appellate court and second appellate court. 15. By a perusal of the pleadings of the parties and averments made in the writ petitions as well as in counter and rejoinder affidavits, some facts, which are necessary to be reiterated are, that a suit u/s 229-B of the U.P.Z.A. & L.R. Act was filed by petitioner/plaintiff Kalyan Singh S/o Late Khushi Ram. He was recorded tenure holder till 1366 F and his name was expunged by the Consolidation Authority on 8.5.1960. He was recorded tenure holder till 1366 F and his name was expunged by the Consolidation Authority on 8.5.1960. This fact has also not been disputed by the parties that plaintiff Kalyan Singh was minor during the consolidation proceedings and the name of father of Kalyan Singh i.e. Late Sri Khushi Ram was recorded in 1359 F. It was also pleaded that Late Pyara Lal had died prior to enforcement of Uttar Pradesh Zamindari Abolition and Land Reforms Act and he had died issueless. His wife had remarried with petitioner Ramji Lal and defendant nos.2 and 3 were born out of the wedlock of Ramji Lal and the then wife of Late Sri Pyara, who had remarried after the death of Pyara. 16. The suit, as has been discussed above, was filed by Kalyan Singh when his name was expunged from the revenue record during the consolidation proceeding vide order dated 8.5.1960. Learned Assistant Collector on the basis of documentary evidence, as referred above, i.e., Khatuni of 1359 F, voter list and Pariwar Register, Khushi Ram has been shown father of plaintiff Kalyan Singh. Learned Assistant Collector has held since the plaintiff Kalyan Singh was minor therefore section 49 of Consolidation of Holdings Act would not be bar in filing the suit. On the issue of section 34(5), the learned Assistant Collector has observed that since the name of plaintiff Kalyan Singh was recorded in 1363 F, therefore no question of bar of section 34 (5) of U.P. Land Revenue Act would arise. Notices u/s 80 and 106 were given before filing the suit. 17. So far as the issue of section 34 of Specific Relief Act is concerned, all this plea has been taken in the written statement but the issue was not pressed in service by the defendant and since the name of plaintiff Kalyan Singh was recorded in 1363 F prior to the consolidation proceeding therefore he could not be treated out of possession since he was recorded co-tenure holder. 18. The learned Board of Revenue has committed manifest error of law in remanding the matter on the issue of section 34. 18. The learned Board of Revenue has committed manifest error of law in remanding the matter on the issue of section 34. So far as the lis between Kalyan Singh and Vijay Singh and Mahendra is concerned, in view of the matter since the plaintiff Kalyan was a recorded tenure holder in 1363 F and his name was expunged during consolidation proceedings without appointing any guardian of minor got recorded by Ramji Lal with collusion of the consolidation authority. The finding of the Board of Revenue on this issue is totally perverse. 19. So far as the contention raised by Sri Siddhartha Singh that the order of the first appellate court is not a speaking order, a perusal of the said order goes to show that the first appellate court has affirmed the finding of the trial court on the basis of the documentary evidence, voter list and pariwar register and rightly held that Late Sri Khushi Ram was father of Kalyan Singh and his name was recorded in 1363F which was expunged during consolidation proceedings. 20. As regard to the cross objections filed by Vijay and Mahendra, which according to learned counsel were not dealt with, since the issue in the appeal, filed by Ramji Lal, wherein Vijay and Mahendra have also filed cross objections, was the same and Ramji Lal and Vijay Singh and Mahendra were defendants before the trial court and the suit was being contested jointly therefore when the appeal was dismissed by a speaking order the cross objections would be treated to be disposed of. No separate order was required to be passed. No such ground has been taken before the board of revenue by Sri Vijay Singh and Mahendra that cross objections filed by them have not been dealt with. Therefore, this contention is of no help to the petitioner. 21. It was also contended that plaintiff Kalyan Singh had sold the land in question during the pendency of second appeal and further it was mortgaged to respondent nos.6, 7 and 8 and Kalyan Singh had filed a suit for cancellation which was dismissed by the civil suit and it was argued that the mortgage was not as per provision. So far as this issue is concerned, in the case at hand, this issue is not under consideration. So far as this issue is concerned, in the case at hand, this issue is not under consideration. If any person has purchased property from Kalyan Singh, he will step in the shoes of Late Kalyan Singh then what would be the fate of the case. In reply, learned Senior Counsel Sri Sharad Sharma has contended that name of Pyara was never recorded in 1359 Fasli when U.P.Z.A. & L.R. Act was enforced. Therefore, the name which was recorded during consolidation proceeding by the consolidation authority in place of Kalyan Singh was recorded with the collusion of sons of Ramji Lal. They are sons of Ramji Lal and not of Pyara. If for the sake of arguments, Vijaya and Mahendra are considered to be sons of Pyara, even in that case also, their name could not be recorded in place of Khushi Ram, who was the real brother of Ramji Lal and who died after the death of Pyara. This fact is not disputed that the name of nephew cannot be recorded in view of section 171 U.P.Z.A. & L.R. Act. The name of brother can only be recorded when no son or widow survives. The living brother was Ramji Lal but Khushi Ram was alive. The plaintiff also denied this fact that Ramji Lal ever succeeded the land of Khushi Ram. Since Khusi Ram was recorded in 1359 F and he was succeeded by his son plaintiff Kalyan Singh and the learned Assistant Collector as well as the first appellate court on the basis of documentary evidence has rightly held the son of Khushi Ram and in reply defendant has not filed any documents to show that Kalyan Singh was not the son of Khushi Ram. Therefore, the Assistant Collector has rightly decreed the suit and has observed in its order that in the pariwar register, Vijay and Mahendra were shown as sons of Ramji Lal. 22. So far as the question of transfer of land during the pendency is concerned, if any land is transferred during pendency of the suit, section 52 of the Transfer of Property Act would be attracted. The possession of plaintiff would be seen on the date of suit. The suit cannot be treated as infructous if the land has been transferred during the pendency of second appeal. The appeal is also in continuation of suit. 23. The possession of plaintiff would be seen on the date of suit. The suit cannot be treated as infructous if the land has been transferred during the pendency of second appeal. The appeal is also in continuation of suit. 23. The learned Board of Revenue so far as the appeal of Ramji Lal is concerned, it has been dismissed and the appeal of Vijay and Mahendra has been remitted on the issue of section 34 of Specific Relief Act. As has been discussed above in preceding paragraphs, since the plaintiff Kalyan Singh is co-tenure holder with the defendants therefore provision of section 34 at all are not attracted in the case at hand. The Board of Revenue has misread the evidence and gave a perverse finding and committed manifest error of law in remanding the matter so far as the appeal of Vijay and Mahendra is concerned. The name of Vijay and Mahendra cannot be recorded in any case in the land in question. 24. For the reasons recorded in foregoing paragraphs, the Writ Petition No.752 of 2007 (M/S) is allowed and the judgment and order dated 31.7.1989 passed by the Board of Revenue in Second Appeal No.13(z) of 1985-86, remanding the appeal of Vijay and Mahendra, is set aside and the appeal no.13(z) of 1985-86 is also dismissed. Consequently, WPMS No.4483 of 2001 and WPMS No.305 of 2001 are dismissed.