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2015 DIGILAW 64 (ALL)

Chunni v. State of U. P.

2015-01-12

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. – Heard Shri Sanjeev Kumar Singh, learned counsel for the petitioner and Shri P.K. Singh, for the respondent no. 5. 2. It appears that three separate suits were filed under Section 229-B of the UP Zamindari Abolition & Land Reforms Act. 3. The instant writ petition pertains to land of khata no. 110 of village Mahadev Jharkhandi, Tukra No. 2, pargana Haveli, District Gorakhpur regarding which one of the three suit aforesaid were filed. 4. Insofar as the other suits were concerned, regarding land situated in other villages, the matter came up before this Court and the writ petition no. 31154 of 2015: Chunni v. State of U.P. & 6 Others was dismissed by the following order passed on 24.07.2015: - "2. The writ petition has been filed against the judgment and decree of Assistant Collector (First Class) dated 28.08.1992, decreeing the suit filed by Ram Pyare (now represented by respondents-5 and 6), Additional Commissioner dated 06.09.2013 and Board of Revenue, U.P. dated 29.05.2014, dismissing the appeal and second appeal of the petitioner against the aforesaid decree, arising out of proceeding under U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act'). 3. Ram Pyare (now represented by respondents-5 and 6) filed a suit (registered as Suit No. 108/224/94) under Section 229-B of the Act, on 04.09.1973 for declaring him as co-tenure holder of the land mentioned in Schedule-A [consisting plots 228 (area 0.32 acre), 230 (area 0.02 acre), 231/1 (area 0.16 acre), 231/2 (area 0.35 acre) and 232 (area 0.28 acre)] and sole tenure holder of the land mentioned in Schedule-B [consisting plots 237 (area 0.36 acre) and 238 (area 0.33 acre)] of village Mahadev Jharkhandi, Tukra No. 1, pargana Haveli, district Gorakhpur of the plaint. It has been stated in the plaint that the land of Schedule-A was jointly acquired by Algoo (father of Jeut, defendant-1 and father-in-law of Smt. Jagia widow of Motiraj, defendant-2) and Bhaggu (grand father of Ram Pyare), who were real brothers. Algoo was elder to Baggu as such his name was recorded in representative capacity. After death of Algoo, name of Motiraj was recorded in representative capacity. Taking advantage of revenue entry, Motiraj obtained bhumidhari certificate and executed a gift deed dated 12.06.1969 in favour of Jeut. Algoo was elder to Baggu as such his name was recorded in representative capacity. After death of Algoo, name of Motiraj was recorded in representative capacity. Taking advantage of revenue entry, Motiraj obtained bhumidhari certificate and executed a gift deed dated 12.06.1969 in favour of Jeut. Damdi (son of Baggu) died during life time of Baggu as such after death of Bhaggu, Ram Pyare inherited his share. Bhaggu and after his death, the plaintiff through out remained in joint possession of the land in dispute. On the basis of gift deed name of Jeut was recorded over the land in dispute. The property mentioned in Schedule-B of the plaint was property of Shiv Narain, maternal grand father of the plaintiff. The plaintiff was co-sharing in cultivation with Shiv Narain and after his death he alone was in possession of the land in dispute. The defendants have no concerned with the land mentioned in Schedule-B. During minority of the plaintiff, the name of Jeut was wrongly recorded over the land in dispute, which is liable to be deleted. 4. The suit was contested by Jeut, who filed his written statement and denied the plaint allegations. It has been stated by Jeut that land in dispute was tenancy holdings of Jeut and his brother Motiraj and they alone were in possession of it. Motiraj obtained bhumidhari certificate on 11.06.1968 and executed a registered gift dated 12.06.1969 in favour of Jeut, which was accepted by him. His name was recorded in revenue record on the basis of gift deed. Joint property of the parties had been partitioned long ago between their families. The suit was filed on incorrect allegations. 5. The suit was tried by Assistant Collector, First Class, Gorakhpur, along with two other suits between the parties, who framed several issues. The plaintiff, apart of documentary evidence, examined Lalu Ram, Satya Narain, Badari, Smt. Sunari and Ram Pyare as witnesses. The defendants, apart from documentary evidence, examined Padohi, Asarfi Lal and Jeut as witnesses. Trial Court after hearing the parties held that Jeut, in his statement recorded in Suit No. 799 on 28.10.1968 admitted pedigree and also admitted that Motiraj and Ram Pyare were co-tenure holders of the disputed land in that suit. From Khasra of year 1364 F to 1371 F, irrigation slips and revenue receipts it was proved that Ram Pyare was in possession of the property in dispute. From Khasra of year 1364 F to 1371 F, irrigation slips and revenue receipts it was proved that Ram Pyare was in possession of the property in dispute. On these findings he decreed the suit and declared Ram Pyare to be co-tenure holder in the land mentioned in Schedule-A and sole tenure holder in the land mentioned in Schedule-B. 6. The petitioner filed an appeal (registered as Appeal No. 748 of 1992-G) from the aforesaid decree. The appeal was heard along with two other appeals between the parties, by Additional Commissioner (Adm.) who by his judgment dated 06.09.2013 affirmed the findings and dismissed the appeals. The petitioner filed a second appeal (registered as Second Appeal No. 4 of 2013-14) from the aforesaid decree. The second appeal was heard by Board of Revenue, U.P., along with two other second appeals between the parties, and dismissed by order dated 29.05.2014. The petitioner along with his brothers filed writ petition (registered as Writ-B No. 46841 of 2014) which was dismissed as withdrawn by order dated 03.09.2014, giving liberty to file a fresh writ petition. Now the petitioner alone has filed this writ petition. 7. The counsel for the respondent-5 raised a preliminary objection that judgments of Assistant Collector, Additional Commissioner, Board of Revenue, U.P. are common. The petitioner and his brothers filed writ petition (registered as Writ-B No. 46841 of 2014) which was dismissed as withdrawn by order dated 03.09.2014, giving liberty to file a fresh writ petition. Thereafter, he again filed another writ petition, which was again got dismissed as withdrawn. As such the present writ petition is not maintainable. In reply to the preliminary objection, the counsel for the petitioner submitted that writ petition was related to the land of village Ramgarh Tal while the present writ petition is in respect of the land of village Mahadev Jharkhandi, Tukra No. 1. There were three separate suits in respect of the land of different villages as such three separate appeals and second appeals were also filed. As such dismissal of writ petition as withdrawn in respect of land of village Ramgarh Tal will not debar the petitioner from challenging the decree in other suits. In view of the fact that there were three separate suits in respect of the land of different villages, three separate appeals and second appeals were also filed as such three separate writ petitions can be filed. In view of the fact that there were three separate suits in respect of the land of different villages, three separate appeals and second appeals were also filed as such three separate writ petitions can be filed. Since writ petition was got dismissed as withdrawn as such no finding has been recorded by this Court to operate as res-judicata. There is no force in preliminary objection of the counsel for the respondents. 8. The counsel for the petitioner submitted that the courts below have not dealt with entire oral and documentary evidence on record and its judgments are cryptic and contain no reason for not relying upon the evidence of the petitioner on record. First appellate court and second appellate court merely referred the arguments but did not take pain to look the evidence on record and dismissed the appeals saying that trial court has considered the evidence on record. The land of village Ramgarh Tal was proved to be acquired by Ramdihal (common ancestor of the parties) but the land of village Mahadev Jharkhandi, Tukra No. 1 was not acquired by common ancestor. Zamindar used to let out the land for a fixed period. Earlier the land in dispute was let out to Algoo but after expiry of the period of lease, it was let out afresh to Motiraj. The name of Motiraj alone was recorded in 1356 F and 1369 F. After date of vesting, Motiraj has become sirdar of the land and his name was recorded as such. Motiraj obtained bhumidhari Certificate after deposit of requisite amount on 11.06.1968 and executed a gift deed dated 12.06.1969 of the land in dispute to Jeut, which has been accepted by him. On the basis of registered gift deed, name of Jeut was mutated in revenue records by order dated 24.04.1972. Since then, he was continuously recorded over it. There is no evidence to prove that the land in dispute was jointly recorded. Khasra entries relied upon by Ram Pyare had no evidenciary value and no reliance could have been placed upon it as it was not proved that PA-10 was issued/served upon Motiraj and Jeut. Orders of respondents-1 to 3 are illegal and liable to be set aside. 9. I have considered the arguments of the counsel for the parties and examined the record, including written arguments filed before appellate court. Orders of respondents-1 to 3 are illegal and liable to be set aside. 9. I have considered the arguments of the counsel for the parties and examined the record, including written arguments filed before appellate court. So far as the findings of the courts below that pedigree of the parties was proved, is concerned, the petitioner has filed copy of statement of Jeut as Annexure-6 to the writ petition, in which it has been admitted by him that Algoo and Bhaggu were reals brothers. Algoo was his father and Bhaggu was grand father of Ram Pyare as such it was proved Ram Pyare belonged to the family of the petitioner. 10. Ram Pyare has filed settlement year khatauni 1323 F to prove that property of Schedule-B was acquired by Shiv Narain, his maternal grand father. He also filed original patta dated 09.08.1925 by which the land mentioned in Schedule-A of the plaint was let out to Ramdihal (common ancestor of the parties) and Bhaggu, his grand father. He also filed khatauni 1334 F, showing that on the basis of patta, name of Ramdihal and Bhaggu were recorded over the land in dispute. Thus Ram Pyare has proved that land in dispute was acquired by common ancestor. Jeut took plea that period of patta granted to Algoo and Bhaggu had expired. Thereafter, the land in dispute was let out afresh to Motiraj in 1340 F. Jeut relied upon khatauni 1356 F and 1359 F, in which name of Motiraj alone was recorded. In khatauni 1359 F, period of cultivation has been mentioned as 29 years. Thus Jeut could not prove that the land in dispute was acquired by Motiraj afresh as period of cultivation does not correspond to the patta of 1340 F, rather it shows that land in dispute was in possession of family since 1320 F. Thus acquisition of the Schedule-A property by common ancestor Algoo and his son Bhaggu and Schedule-B land by Shiv Narain, maternal grand father of Ram Pyare was proved. In the circumstance, it was rightly inferred that name of Motiraj was recorded in representative capacity. Acquisition of bhumidhari certificate by Motiraj will not confer him a fresh right as he was not sole sirdar of the land in dispute. 11. In the circumstance, it was rightly inferred that name of Motiraj was recorded in representative capacity. Acquisition of bhumidhari certificate by Motiraj will not confer him a fresh right as he was not sole sirdar of the land in dispute. 11. So far as possession is concerned, trial court relied upon Khasra of year 1364 F to 1371 F, irrigation slips and revenue receipts and held that possession of Ram Pyare was proved over the land in dispute. Apart from these documentary evidence, there has been proceedings under Section 145 Cr.P.C. between the parties, in which also Sub-Divisional Magistrate found possession of Ram Pyare by order dated 23.10.1971. Ram Pyare also examined several witnesses to prove his possession. Issuance of PA-10 was compulsory between 1959 to 1965. Khasra 1364 F correspond to the year 1956. At that time issuance to PA-10 was not compulsory as such on this ground khasra entry cannot be ignored. Thus findings in respect of possession is a findings of fact and nothing has been pointed out to show that the findings vitiates in any way. This Court has no jurisdiction to re-appreciate evidence on record and to record to different findings. 12. In view of the aforesaid discussions, the writ petition has no merit and is dismissed." 5. The claims of the parties in the suit where from the instant writ petition arises, was identical to that in the suit where from the writ petition no. 31154 of 2015 arose. Therefore, in view of the order quoted above, even this writ petition is liable to be dismissed. 6. The writ petition is hereby dismissed. Petition Dismissed.