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2015 DIGILAW 3115 (ALL)

Ramai v. State of U. P.

2015-10-01

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Raj Kumar Ojha, for the petitioners and Sri Ramesh Singh, for the contesting respondents. 2. This writ petition has been filed against the orders of Sub-Divisional Officer dated 26.11.2011, issuing parwana amaldaramad, under Paragraph-39 of U.P. Revenue Court Manual, for compliance of preliminary decree dated 14.04.1958/final decree dated 30.09.1961 passed in O.S. No. 376 of 1957, Additional Commissioner dated 19.12.2012 and Board of Revenue, U.P. dated 25.05.2015 dismissing appeals and revisions of the petitioners, in the partition suit under U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act). 3. Dispute between the parties relates to plots 278 (area 5 biswa), 335 (area 15 biswa), 336 (area 11 biswa), 364 (area 10 biswa), 365 (area 6 biswa) and 367 (area 10 biswa), (total area 2 bigha 17 biswa) of village Shivpur alias Rasoolpur, pargana Kantit, district Mirzapur. Saptami (now represented by respondents-7 to 15) (hereinafter referred to as the respondents) filed a suit (registered as O.S. No. 237 of 1953) on 13.05.1953, for declaring him co-sharer of 1/2 share in the land mentioned in Schedule-A and B of the plaint. Saptami took plea that his father Dwarika and Satya Narain (father of the defendants) were cousin brothers and formed joint Hindu family. From joint family fund, the land in dispute was purchased time to time in the name of Satya Narain in representative capacity, in which he had 1/2 share. In Schedule-A of the plaint, plots 663, 783, 816, 878, 897, 901/1, 901/2, 901/3, 956, 1013 and 1031 (total 11 plots area 5 bigha 8 biswa) of village Shivpur were mentioned. In Schedule-B of the plaint, plots 29, 37, 38, 39, 40, 51, 65, 86, 91, 92, 93, 112, 116, 226, 278, 335, 336, 364, 365 and 367 (total 20 plots area 16 bigha 4 biswa) of village Vedaur were mentioned. In this plaint there was a mistake that although plots 278 (area 5 biswa), 335 (area 15 biswa), 336 (area 11 biswa), 364 (area 10 biswa), 365 (area 6 biswa) and 367 (area 10 biswa), (total area 2 bigha 17 biswa) were lying in village Shivpur but it has been mentioned in Schedule-B of the plaint along with land of village Vedaur. This mistake was not pointed out by any one. 4. This mistake was not pointed out by any one. 4. The defendants contested the suit and stated that Satya Narian purchased the disputed land from his own income, which were his self acquired properties. Amongst other, the plots which are at present disputed, plots 335 and 336 were purchased from Jokhan in the name of Satya Narain through sale deed dated 27.05.2016, plots 278 and 1073 were purchased from Vishwa Nath in the name of Satya Narain, through sale deed dated 22.02.1917 and plots 364, 365 and 367 were purchased from Vishwa Nath in the name of Satya Narain and the defendants have filed these sale deeds. The suit was tried by Munsif, Mirzapur, who by judgment dated 03.11.1954, held that family of Dwarika and Satya Narain remained joint till 1930. They were carrying a big joint family confectionery shop at Vindhyanchal and from the income of that business entire land in dispute were acquired as such it were joint family property of Satya Narain and Dwarika, in which Saptami had 1/2 share. On these findings, he decreed the suit, for the plots mentioned in Schedule A and B of the plaint excepts plots 663, 783, 878, 897, 901/1, 901/2 and 901/3 of Schedule A. No one challenged the decree dated 03.11.1954 and it became final between them. 5. Saptami then filed a suit for partition (registered as O. S. No. 376 of 1957) of the aforementioned plots. Again a mistake was committed in the plaint that all the aforementioned plots were shown as land situated at village Vedaur and according to the provisions of Section 176 (2) of the Act, Gaon Sabha Bedaur was impleaded as defendant-3, in the plaint. This mistake was also not pointed out by any one. The suit was contested by the defendants. They again raised the plea that land in dispute were their self acquired property. Some of disputed plots were mortgaged and they get it redeemed by paying Rs. 3200/-. Some of the disputed land were still under mortgage for Rs. 450/- They stated that decree passed in O.S. No. 237 of 1953 was a fraudulent decree and has been secured without any notice to them. Some of disputed plots were mortgaged and they get it redeemed by paying Rs. 3200/-. Some of the disputed land were still under mortgage for Rs. 450/- They stated that decree passed in O.S. No. 237 of 1953 was a fraudulent decree and has been secured without any notice to them. The suit was tried by Munsif, Mirzapur, who by his judgment dated 14.04.1958, held that the decree in O.S. No. 237 of 1953 dated 03.11.1954 was passed after hearing the parties and has become final between them as such it would operate as res-judicata. The defendants incurred Rs. 1325/- for redemption of the mortgage of the disputed land, the plaintiff was required to pay half of it to them. On these findings, the preliminary decree dated 14.04.1958 was passed in the suit holding 1/2 share of Saptami in the disputed land, who was directed to pay Rs.662.50 to the defendants. No one filed any appeal against preliminary decree and it has become final. 6. By U.P. Act No. 37 of 1958, Schedule II of the Act was amended and jurisdiction to try suit for partition under Section 176 was conferred on Assistant Collector First Class. As such the case was transferred to Assistant Collector First Class, Mirzapur, for preparation of final decree. Lekhpal prepared and submitted kurra fant, which was approved by Assistant Collector First Class, Mirzapur on 27.07.1959. According to it final decree in the suit was passed on 04.08.1959. At this stage, it was noticed that the disputed plots were lying in village Shivpur but in the plaint it were wrongly included along with plots of village Vedaur. Saptami then filed an application (registered as Misc. Case No. 80 of 1960), before Munsif, Mirzapur for amendment of the schedule of disputed land as given in the plaint by inserting words "tafsil araziyat vaka mauza Shivpur, tappa 96, pargana Kantit, district Mirzapur" before disputed land. The amendment application was allowed by order dated 16.07.1960. Thereafter, the case was referred to Assistant Collector for passing fresh final decree, where the case was registered as Suit No. 27 of 1960 under Section 176 of the Act. According to the amended plaint, Lekhpal prepared a fresh kurra fant and submitted in the Court on 05.04.1961, where his statement was also recorded and modified final decree was passed on its basis on 30.09.1961. 7. According to the amended plaint, Lekhpal prepared a fresh kurra fant and submitted in the Court on 05.04.1961, where his statement was also recorded and modified final decree was passed on its basis on 30.09.1961. 7. The respondents filed an application dated 21.09.1993 and thereafter on 11.07.2001, under Paragraph-39 of U.P. Revenue Court Manual for issuing parwana amaldaram according to preliminary decree dated 14.04.1958 and final decree dated 30.09.1961, passed in O.S. No. 376 of 1957. The application was contested by the petitioners on the ground that disputed land situated at village Shivpur, while O.S. No. 376 of 1957 was filed for partition of land of village Vedaur. Gaon Sabha Vedaur alone was impleaded as defendant-3 in the plaint according to provisions of Section 176 (2) of the Act. Gaon Sabha Shivpur was not impleaded as the defendant in the suit. After passing the final decree dated 04.08.1959, Munsif, Mirzapur had no jurisdiction to amend the plaint as the suit had already been finally decided. Otherwise also his jurisdiction to decide suit for partition of the land was taken away by U.P. Act No. 37 of 1958. The application of Saptami for amendment of the plaint was dismissed on 06.02.1960, second amendment application for same relief was not maintainable. It has been illegally allowed by order dated 16.07.1960. 8. Additional Sub-Divisional Officer heard the application of the respondents. The respondents filed certified copies of preliminary decree dated 14.04.1958 and final decree dated 30.09.1961 passed in O.S. No. 376 of 1957, copy of fant kurra dated 05.04.1961 prepared by Lekhpal on the basis of the order dated 16.07.1960 and his statement as recorded by Sub-Divisional Officer. The petitioners did not adduce any evidence. After hearing the parties, Additional Sub-Divisional Officer, by order dated 26.11.2011 held that preliminary decree dated 14.04.1958 and final decree dated 30.09.1961 were passed after giving opportunity of hearing to the parties, which have become final between the parties. No limitation has been provided for making amaldaramad of the orders passed by the Court. As such in view of Paragraph-39 of U.P. Revenue Court Manual parwana amaldaramad can be issued for giving effect to the final orders passed by the Court in the suit. On these findings, he allowed the application and issued parwana amaldaramad. The petitioners filed two appeal (registered as Appeal Nos. As such in view of Paragraph-39 of U.P. Revenue Court Manual parwana amaldaramad can be issued for giving effect to the final orders passed by the Court in the suit. On these findings, he allowed the application and issued parwana amaldaramad. The petitioners filed two appeal (registered as Appeal Nos. 30/18 of 2011 and 31/21 of 2011) from the aforesaid order, which were dismissed by Additional Commissioner by order dated 19.12.2012. The petitioners filed two revisions (registered as Revision No. 20 and 21 of 2012-13) from the aforesaid order. Board of Revenue, U.P. by order dated 25.05.2015 affirmed the findings of Additional Sub-Divisional Officer and dismissed the revisions. Hence this writ petition has been filed. 9. The counsel for the petitioners submitted that Schedule-A of O.S. No. 237 of 1953 consisted plots 663, 783, 816, 878, 897, 901/1, 901/2, 901/3, 956, 1013 and 1031 (total 11 plots area 5 bigha 8 biswa) of village Shivpur. The disputed plots 278 (area 5 biswa), 335 (area 15 biswa), 336 (area 11 biswa), 364 (area 10 biswa), 365 (area 6 biswa) and 367 (area 10 biswa), (total area 2 bigha 17 biswa) of village Shivpur were not mentioned in it. Decree passed in O.S. No. 237 of 1953 dated 03.11.1954 is final and operates as res-judicata between the parties. In judgment dated 14.04.1958 passed in O.S. No. 376 of 1957, also it has been held that judgment passed in O.S. No. 237 of 1953 dated 03.11.1954 is res-judicata between the parties. O.S. No. 376 of 1957 was filed for partition of the land situated at village Vedaur alone. Gaon Sabha Vedaur alone was impleaded as defendant-3 in the plaint. Gaon Sabha Shivpur was not impleaded as the defendant in the suit. After passing the final decree dated 04.08.1959, Munsif, Mirzapur had no jurisdiction to amend the plaint. Otherwise also his jurisdiction to decide suit for partition of the land was taken away by U.P. Act No. 37 of 1958. The application for amendment of the plaint dated 21.10.1959 filed by Saptami was dismissed on 06.02.1960, second amendment application for the same relief was not maintainable. It has been illegally allowed by order dated 16.07.1960, in collusion with Saptami without giving any notice and opportunity of hearing to the petitioners. Neither preliminary decree nor final decree were modified on its basis. It has been illegally allowed by order dated 16.07.1960, in collusion with Saptami without giving any notice and opportunity of hearing to the petitioners. Neither preliminary decree nor final decree were modified on its basis. In a suit for partition Gaon Sabha is necessary party under Section 176 (2) of the Act, Gaon Sabha Shivpur was not impleaded as party in the suit as such no decree for partition of the land of village Shivpur could be passed. The orders of the Courts below are illegal and liable to be set aside. 10. I have considered the arguments of the counsel for the parties and examined the record. Copy of the plaint of O.S. No. 237 of 1953 has been filed as Annexure-4 to the writ petition. The disputed plots 278 (area 5 biswa), 335 (area 15 biswa), 336 (area 11 biswa), 364 (area 10 biswa), 365 (area 6 biswa) and 367 (area 10 biswa), (total area 2 bigha 17 biswa) were mentioned in Schedule-B along with land of village Vedaur, although it were situated at village Shivpur. As stated above, no one pointed out this mistake. The predecessors of the petitioners raised specific plea that these plots were their self acquired properties. They also filed sale deeds dated 27.05.1916, 22.02.1917 and 31.07.1922, through which these plots were purchased in the name of Satya Narain. Their plea has not been accepted by the Court in its judgment dated 03.11.1954 and it has been held as joint family property and share of Saptami was 1/2. The petitioners admit that this judgment is final between the parties. Thus it has been finally decided that Saptami had 1/2 share in disputed land. 11. Copy of the plaint of O.S. No. 376 of 1957 has been filed as Annexure-7 to the writ petition. The disputed plots 278 (area 5 biswa), 335 (area 15 biswa), 336 (area 11 biswa), 364 (area 10 biswa), 365 (area 6 biswa) and 367 (area 10 biswa), (total area 2 bigha 17 biswa) were mentioned in Schedule of the plaint, along with plots of village Vedaur. Thus there was a mistake that these plots were shown to situate at village Vedaur. As stated above, no one again pointed out this mistake, during trial of the suit. The preliminary decree dated 14.04.1958 was passed holding Saptami had 1/2 share in all the plots mentioned in the plaint, which included disputed plots. Thus there was a mistake that these plots were shown to situate at village Vedaur. As stated above, no one again pointed out this mistake, during trial of the suit. The preliminary decree dated 14.04.1958 was passed holding Saptami had 1/2 share in all the plots mentioned in the plaint, which included disputed plots. Mistake in location of the village of the disputed land was corrected by order dated 16.07.1960. The proposed amendment was to insert words "tafsil araziyat vaka mauza Shivpur, tappa 96, pargana Kantit, district Mirzapur" before disputed land in the plaint. The arguments that preliminary decree was not corrected, is misconceived. By preliminary decree dated 14.04.1958, share of Saptami in all the plots mentioned in the plaint, which included disputed plots, had been held as 1/2. The arguments that the application dated 21.10.1959 of Saptami for amendment of the plaint was dismissed on 06.02.1960, second amendment application for same relief was not maintainable, is concerned, the application dated 21.10.1959 was rejected in default. As such another application was filed for amendment on 09.02.1960, which was allowed by order dated 16.07.1960. By this order mistake in the plaint was corrected, which can be done in exercise of inherent jurisdiction to prevent miscarriage of justice. 12. After the order dated 16.07.1960, Munsif by order dated 25.07.1960 referred the matter to Assistant Collector for correcting final decree, where Assistant Collector by order dated 03.09.1960 directed to register the case and issued notices to the parties fixing 05.10.1960. The case was registered as Suit No. 27 of 1960 under Section 176 of the Act. According to the amended plaint, Lekhpal prepared a fresh kurra fant and submitted in the Court on 05.04.1961, where his statement was also recorded and fresh final decree was passed on its basis on 30.09.1961. In this order Assistant Collector has recorded a findings that notices were served upon the defendants but they had not appeared. The petitioners never filed any application for setting aside final decree dated 30.09.1961, which is final between the parties. Although findings have been recorded by Additional Sub-Divisional Officer in this respect, but the petitioners have deliberately concealed these facts. 13. So far as the defect in array of the parties is concerned, as stated above, the petitioners never raised any dispute in this respect. Defect is array of the parties does not cause any prejudice to the petitioners. Although findings have been recorded by Additional Sub-Divisional Officer in this respect, but the petitioners have deliberately concealed these facts. 13. So far as the defect in array of the parties is concerned, as stated above, the petitioners never raised any dispute in this respect. Defect is array of the parties does not cause any prejudice to the petitioners. It has been held twice that Saptami had 1/2 share in the disputed land. After such a long time, particularly when the petitioners did not file any application for setting aside decree dated 30.09.1961, this Court is not inclined to interfere with the order issuing parwana amaldaramad in exercise of powers under Paragraph-39 of U.P. Revenue Court Manual for giving effect to final decree dated 30.09.1961. A Division Bench of this Court in Nanhun Vs. DDC and others, 1973 ALJ 89 (DB) held that if entry is not corrected in compliance of the final order of the Court then parwana amaldaramad can be issued in exercise of powers under Paragraph-39 of U.P. Revenue Court Manual for correcting entry, for which no limitation has been prescribed. HELD: 14. In view of the aforesaid discussion, the writ petition has no merit, it is dismissed.