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2015 DIGILAW 367 (UTT)

BAL KRISHAN v. CHIEF REVENUE COMMISSIONER

2015-07-23

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. (Oral) MCC No. 554 of 2013 Recall Application (MCC No. 554 of 2013) is filed seeking recall of the judgment dated 07.08.2013, passed by the Hon’ble B.S. Verma, J. as His Lordship then was, allowing WPMS No. 1209 of 2002, Bal krishan Vs. Chief Revenue Commissioner and others. 2. The main grievance of Mr. Bhupendra Singh, learned counsel appearing for the respondent nos. 3 and 4 in the writ petition/ applicants herein that although respondent nos. 3 & 4 have engaged Sri Jagdish Prasad and Sri Gopal Krishan, Advocates to represent them, however, none has appeared to argue the matter on 07.08.2013. Consequently, Writ Petition (M/S) No. 1209 of 2002 was decided ex parte against them, vide judgment and order dated 07.08.2013. Consequently, judgment and Order dated 07.08.2013 be recalled and writ petition be heard at its own merit de novo. 3. Mr. S.K. Mandal, learned counsel for petitioner, Mr. Bhupendra Singh, learned counsel appearing for the applicants/respondent nos. 3 & 4, Mr. Gajendra Tripathi, learned Brief Holder, appearing for respondent No. 1 and 2, and Mr. A.K. Joshi, Advocate for respondent no.5 fairly submitted that present applicant may be treated as Review application and may be heard and disposed of as such. Further, contended that if in the opinion of this Court judgment dated 07.08.2013 is found to be perverse or liable to be reviewed it may be reviewed/recalled. 4. Brief facts of the present case, inter alia, are that the petitioner as well as respondent nos. 3 & 4, herein, have jointly filed Suit No. 22/15 of 1987-88 in the Court of Assistant Collector, 1st Class, Rudrapur, District Nainital against Om Prakash and Balraj Singh as well as the Gram Sabha- Govindpur to declare them joint bhumidhar in possession of land, in question. Suit so filed by the petitioner as well as respondent nos. 3 and 4 herein, was decreed by the Trial Court vide judgment and decree dated 18.04.1991 declaring the petitioner and respondent nos. Suit so filed by the petitioner as well as respondent nos. 3 and 4 herein, was decreed by the Trial Court vide judgment and decree dated 18.04.1991 declaring the petitioner and respondent nos. 3 and 4, herein, as joint bhumidhars in possession of land in question; Appeal No. 150/98 of 1990-91 was preferred by Om Prakash and Balraj Singh, assailing the judgment and decree dated 18.04.1991, however, same was dismissed by the Divisional Commissioner vide judgment and decree dated 24.3.1993; judgment and decree dated 18.4.1991 passed by Assistant Collector as well as judgment passed by the First Appellate Court dated 24.3.1993 upholding the decree dated 18.4.1991 were never challenged before the higher Forum and were allowed to attain finality; Thus, present petitioner as well as respondent nos. 3 & 4 were recorded as co-bhumidhar in possession of the property in question in the revenue record; petitioner, herein, thereafter filed Suit No. 22/108 of 1991-92 under Section 176 of the UPZA & LR Act against the respondent nos. 3, 4 & 5, herein, for the partition claiming 1/3rd share in the property in question; suit was hotly contested by respondent no. 3 and 4, herein, stating that the plaintiff/present petitioner is not from their family and he was brought by their mother from Himachal Pradesh and entire sale consideration of the property in question was paid by their mother, however, out of love and affection, name of the petitioner was included in the sale documents as well as in the plaint of declaratory Suit No. 22/15 of 1987-88 with the understanding that he would be given 1/10th share in the property in question; suit filed by the plaintiff/petitioner was decreed vide judgment and decree dated 21.4.1995 declaring that the plaintiff/petitioner, herein, is having only 1/10th share in the property in question; feeling aggrieved, plaintiff/petitioner, herein, has preferred First Appeal No. 66/113 of 1994-95 before the Divisional Commissioner, which was allowed and case was remanded to the Trial Court for the decision afresh vide judgment dated 11.12.1995; suit was again decreed vide judgment and decree dated 21.3.1998, however, this time plaintiff/petitioner was held to be a co-owner with the respondent nos. 3 & 4, herein, and his share was declared to the extent of 1/3rd therein; judgment and decree dated 23.12.1998 declaring the plaintiff/petitioner to be co-sharer to the extent of 1/3rd share was challenged by the respondent nos. 3 & 4, herein, and his share was declared to the extent of 1/3rd therein; judgment and decree dated 23.12.1998 declaring the plaintiff/petitioner to be co-sharer to the extent of 1/3rd share was challenged by the respondent nos. 3 & 4, herein, in First Appeal No. 69 of 1998-99; First Appeal was allowed vide judgment and decree dated 19.5.199 reversing the judgment passed by the Trial Court dated 23.12.1998 and by holding that the plaintiff/petitioner, herein, is only a co-sharer to the extent of 1/10th share i.e. to the extent of 1 acre of land out of 10 acres of land; feeling aggrieved, plaintiff/petitioner has preferred Second Appeal No. 87 of 1998-99, however, same was dismissed vide judgment dated 19.9.2002; feeling aggrieved, plaintiff/petitioner has preferred present writ petition. 5. Undisputedly, in a suit for declaration filed under Section 229-B of the UPZA & LR Act jointly by the plaintiff/petitioner, herein, as well as respondent nos. 3 & 4, no share was disclosed and suit was decreed vide judgment and decree dated 18.4.1991 declaring the plaintiff/petitioner as well as respondent nos. 3 & 4 to be joint owner in possession of the property in question and their names and possession were recorded in the revenue record accordingly. 6. Mr. Bhupendra Singh, learned counsel appearing for respondent nos. 3 & 4 while placing reliance on the judgment of Hon’ble Apex Court in the case of Shashidhar and others v. Ashwini Uma Mathad and another reported in 2015 (127) RD 576, has argued that if shares are not disclosed in any document, instrument or previous decree, then it is duty of the court hearing the suit for partition to adjudicate respective shares of the parties. 7. Hon’ble Apex Court in the case of Shashidhar (supra), in paragraph no. 24 has held as under: “24. 7. Hon’ble Apex Court in the case of Shashidhar (supra), in paragraph no. 24 has held as under: “24. We may consider it apposite to state being a well settled principle of law that in a suit filed by a co-sharer, coparcener, co-owner or joint owner, as the case may be, for partition and separate possession of his/her share qua others, it is necessary for the Court to examine, in the first instance, the nature and character of the properties in suit such as who was the original owner of the suit properties, how and by which source he/she acquired such properties, whether it was his/her self-acquired property or ancestral property, or joint property or coparcenery property in his/her hand and, if so, who are/were the coparceners or joint owners with him/her as the case may be. Secondly, how the devolution of his/her interest in the property took place consequent upon his/her death on surviving members of the family and in what proportion, whether he/she died intestate or left behind any testamentary succession in favour of any family member or outsider to inherit his/her share in properties and if so, its effect. Thirdly whether the properties in suit are capable of being partitioned effectively and if so, in what manner? Lastly, whether all properties are included in the suit and all co-sharers, coparceners, co-owners or joint-owners, as the case may be, are made parties to the suit? These issues, being material for proper disposal of the partition suit, have to be answered by the Court on the basis of family tree, inter se relations of family members, evidence adduced and the principles of law applicable to the case. (see “Hindu Law” by Mulla 17th Edition, Chapter XVI Partition and Reunion-Mitakshara Law pages 493-547).” 8. There is no dispute about the settled position of law that in a suit for partition filed by co-sharer, court hearing the suit for partition has to examine in the first instance nature and character of the properties such as who was the original owner of the suit properties, how and by which source he/she acquired such properties, whether it was his/her self acquired property or ancestral property, or join property or coparcenery property. 9. In the present case, admitted case of both the parties is that petitioner as well as respondent nos. 9. In the present case, admitted case of both the parties is that petitioner as well as respondent nos. 3 and 4, herein, themselves have filed suit for declaration being O.S. No. 22/15-1987-88 under Section 229B of the U.P. Z.A & L.R. Act against Om Prakash and Balraj claiming themselves co-owner on the basis of agreement to sell and long standing possession as well as adverse possession and suit was decreed declaring them as co-owner vide judgment and decree dated 18.04.1991, therefore, source of title of the petitioner and respondent no. 3 & 4, herein, can be said to be decree dated 18.04.1991. 10. Mr. Bhupendra Singh, learned counsel for respondents no. 3 and 4 further contends that since petitioner does not belong to family of respondent no. 3 and 4 and he was brought from Himachal Pradesh and looked after by their mother, therefore, his name was included in the agreement to sell and now, he has started claiming co-sharer in the property, in question. 11. Mr. Bhupendra Singh, Advocate for respondents no. 3 and 4, further contends that his name was included due to love and affection, therefore, he may be given at the most 1/10th share in the property, as given by first Appellate Court and Second Appellate Court. 12. I am not inclined to accept the arguments advanced by Mr. Bhupendra Singh, Advocate for respondents no. 3 and 4, for the simple reason, that neither in the sale papers nor in the plaint of declaratory suit nor in the decree passed declaring the petitioner and respondent nos. 3 & 4 joint owners of the property, share of the petitioner was mentioned or held to the extent of 1/10th share only. Therefore, in my considered opinion, in the normal course, it shall be presumed that every co-sharer has equal share with other co-sharers, therefore, view taken by the trial court while passing decree dated 23.12.1998 seems to be perfectly correct. 13. Mr. Bhupendra Singh, Advocate for the respondents no. 3 and 4, further contends that since first Appellate Court and second Appellate Court have recorded concurrent findings of facts to the effect that petitioner was having share to the extent of 1/10th share only, therefore, such concurrent finding ought not to have been disturbed by the learned Single Judge vide judgment dated 07.08.2013. 14. Hon’ble Apex Court in the case of Ranjeet Singh Vs. 14. Hon’ble Apex Court in the case of Ranjeet Singh Vs. Ravi Prakash reported in AIR 2014 SC 3892, in paragraph 4, has held as under: 4. Feeling aggrieved by the judgment of the Appellate Court, the respondent preferred a writ petition in the/High Court of Judicature at Allahabad under Article 226 and alternatively under Article 227 of the Constitution. It was heard by a learned Single Judge of the High Court. The High Court has set aside the judgment of the Appellate Court and restored that of the Trial Court. A perusal of the judgment of the High Court shows that the High Court has clearly exceeded its jurisdiction in setting aside the judgment of the Appellate Court. Though not specifically stated, the phraseology employed by the High Court in its judgment, goes to show that the High Court has exercised its certiorari jurisdiction for correcting the judgment of the Appellate Court. In Surya Dev Rai v. Ram Chander Rai and Ors. AIR 2003 SC 3044 , this Court has ruled that to be amenable to correction in certiorari jurisdiction, the error committed by the Court or Authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self-evident. An error which needs to be established by lengthy and complicated arguments or by indulging into a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error.” 15. As per dictum of Hon’ble Apex Court in the case of Ranjeet Singh (supra) to be amenable to correction in certiorari jurisdiction, the error committed by the Court or Authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self-evident. An error which needs to be established by lengthy and complicated arguments or by indulging into a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error and should not be disturbed by the Writ Court. 16. As observed hereinbefore that petitioner as well as respondents no. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error and should not be disturbed by the Writ Court. 16. As observed hereinbefore that petitioner as well as respondents no. 3 and 4 were held to be joint owner in possession over the property, in question, vide decree dated 18.04.1991 and there is no material available on record to say that petitioner was intended to be given 1/10th share only. In such situation presumption would be that every co-sharer shall have equal share in the property, in question, therefore, on the face of it, view taken by the trial court seems to be perfectly correct and views taken by first Appellate Court and second Appellate Court, on the face of it, are patently wrong. Therefore, judgment dated 07.08.2013 does not warrant review or recall. Consequently, MCC No. 554 of 2013 is hereby dismissed.