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2016 DIGILAW 1368 (ALL)

Mohd. Shami Khan v. Board of Revenue Alld.

2016-04-12

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. Heard Sri Triveni Shanker and Sri Tripathi B.G. Bhai, learned counsel for the petitioners and Sri Manzarul Islam for the respondents. 2. The writ petition arises out of a suit for declaration and eviction under Section 229-B / 209 of the U.P. Zamindari Abolition and Land Reforms Act filed by the petitioners and seeks quashing of the order passed by the Second Appellate Court namely, the Board of Revenue on 25.08.2015. 3. The aforesaid suit was filed by the petitioners predecessor-in-interest on the ground that the land in question belonged to one Ram Sagar and consists of three plots 221/0-03, 252/0-05 and 320/2-005 having a total area of 3.483 acres. On the death of Ram Sagar, his widow Parvati was mutated over the land in question. It is admitted case of the parties that Ram Sagar had three daughters. One of the daughters namely Sheetala was a widow and started residing with her mother. It is alleged that in a Civil Suit decided on the basis of a compromise, the name of Parvati was expunged and it same was recorded in the name of Sheetala alone. 4. It is alleged that Sheetala was recorded only in a representative capacity. It is however admitted that the name of Sheetala continued to be recorded during consolidation operations and chaks were carved out in her name alone. 5. On the death of Sheetala, the name of Balram, respondent No.2 was recorded over the land in question on the basis of an un-registered will in his favour. 6. Against this order of mutation, an appeal was filed by the two sisters of Sheetala but the same was withdrawn on the basis of a compromise between the parties. The orders of mutation in favour of Balram and the order dismissing the appeal on the basis of a compromise were affirmed when the consequential revision was dismissed. 7. After the mutation order, Balram executed a sale deed on 16.10.1978 wherein the two surviving daughters of Ram Sagar namely Pyari and Bikhna were marginal witnesses. It would be relevant to notice that even the order of mutation in favour of Balram passed on 22.12.1997 was passed on the basis of a compromise. 8. The claim of the plaintiffs in the suit for declaration and eviction was that Sheetala was recorded in representative capacity and that no will had been executed by her. It would be relevant to notice that even the order of mutation in favour of Balram passed on 22.12.1997 was passed on the basis of a compromise. 8. The claim of the plaintiffs in the suit for declaration and eviction was that Sheetala was recorded in representative capacity and that no will had been executed by her. Since the plaintiffs were also the daughters of Ram Sagar, they were each entitled to 1/3 share in his land. 9. The Trial Court by its judgement and decree dated 11.10.1988 dismissed the suit as barred by Section 49 of the U.P. Consolidation of Holdings Act. 10. The appeal against the judgment and decree of the Trial Court was allowed by the Additional Commissioner (Administration), Faizabad Division, Faizabad by the judgment and order dated 06.07.1996. The first Appellate Court observed that the Civil Court had no jurisdiction to pass the order where under Sheetala alone was recorded over the land in question. It has also held that the admission, if any, in the form of a compromise before the mutation Court were not binding as the proceedings were summary proceedings. It is also observed that the mere fact that the plaintiffs were attesting witnesses in the sale deed executed by the Balram, the same would not extinguish their rights in the land in question.The first appellate Court accordingly decreed the suit. 11. The judgment and decree of the First Appellate Court was reversed by the Second Appellate Court, the Board of Revenue while restoring the order passed by the Trial Court. Hence this writ petition, challenging the order passed by the Board of Revenue. 12. Learned counsel for the petitioners have submitted that the Board of Revenue has not reversed the relevant findings returned by the first Appellate Court, in its judgment of reversal. It was rightly observed that the Civil Court had no jurisdiction to grant co-tenancy or to grant rights in Sirdari land as had been done by the compromise decree passed in the year 1957. 13. It was rightly observed that the Civil Court had no jurisdiction to grant co-tenancy or to grant rights in Sirdari land as had been done by the compromise decree passed in the year 1957. 13. Learned counsel for the petitioners have also reiterated the findings returned by the First Appellate Court that the alleged admission contained in various compromises entered into, before the mutation Courtd in summary proceedings were not binding and even if the plaintiffs were attesting witnesses in the sale deed executed by Balram, the same would not extinguish their rights in the land in question being the daughters of the Ram Sagar and thereafter the daughters of his widow, Parvati. 14. Sri Manzarul Islam, learned counsel for the respondents has supported the impugned order. He submits that Sheetala was recorded over the land in question right from 1957 when her name was mutated pursuant to the judgment and decree passed by the Trial Court. Her name continued in the revenue records without any objection being raised thereto even during the consolidation operations wherein chaks were carved out in the name of Sheetala alone. Her son was mutated over the land thereafter, on the basis of her un-registered will in his favour. The predecessor-in-interest of the petitioners contested the mutation case, but had entered into a compromise admitting the claim of the Balram before the Trial Court as also at the appellate stage. On the basis of the mutation order, passed in his favour, Balram executed a sale deed wherein the predecessor-in-interest of the petitioners namely the two daughters of Ram Sagar, Pyari and Bikhana were attesting witnesses. They were therefore aware of the revenue entries. The second appellate Court noticing these facts and circumstances has rightly found the suit of the plaintiffs to be barred by Section 49 of the U.P Consolidation of Holdings Act. 15. He has also placed reliance upon the judgments in the case of Nagendra Pal Singh Vs. Bhadrapal Singh, 2013(All) C.J. 2572 : 2013 (120) RD 664 (HC), Zafar Khan and others Vs. Board of Revenue U.P. and others, 1985 (All) C.J. 285 : 1984 RD 328 (SC) and Devi Singh and others Vs. Board of Revenue U.P. and others, 1991 (All), C.J. page 986 : 1991 RD 113. Bhadrapal Singh, 2013(All) C.J. 2572 : 2013 (120) RD 664 (HC), Zafar Khan and others Vs. Board of Revenue U.P. and others, 1985 (All) C.J. 285 : 1984 RD 328 (SC) and Devi Singh and others Vs. Board of Revenue U.P. and others, 1991 (All), C.J. page 986 : 1991 RD 113. In support of his contention that the suit was barred by Section 49 of the U.P. Consolidation of Holdings Act and that the admission contained in the various compromises entered before the mutation Courts, were relevant evidence. 16. Upon hearing learned counsel for the petitioners and upon a perusal of the record, the sole point for consideration, in my considered opinion, is as to whether the suit under Section 229-B / 209 of the U.P. Zamindari Abolition and Land Reforms Act filed by the predecessor-in-interest of the petitioners, was barred by Section 49 of the U.P. Consolidation of Holdings Act. 17. The law in this regard stands settled by the judgment of the Apex Court in Sita Ram Vs. Chhota Bhondey, 1990, RD 439, wherein it has been held even a claim for co-tenancy is barred by Section 49 of the Act. In this case, also, the claim of the persons who filed the suit was that the recorded tenure holder was recorded in representative capacity on behalf of the other co-tenure holders. The Apex Court observed that such a dispute / claim falls within the ambit of Section 5 (2) of the Act and has to be adjudicated by the Consolidation Courts. Subsequently, this view has been reiterated in the case of Kailash Chandra Vs. State of U.P. and others in 2007, ACJ 552 : 2007 (102) RD 301 (HC), wherein also it has been held that a claim of co-tenancy is barred by Section 49 of the Act. 18. In view of the above-noted settled position, the judgment of the Board of Revenue whereby the suit of the plaintiffs' has been held to be barred by Section 49 of the U.P. Consolidation of Holdings Act, cannot be faulted with and for this reason alone, the order calls for no interference. 19. All other points that has been raised on behalf of the petitioners are not relevant for the purposes of adjudication of the dispute in the instant writ petition and therefore, the same are not being alluded to. 20. 19. All other points that has been raised on behalf of the petitioners are not relevant for the purposes of adjudication of the dispute in the instant writ petition and therefore, the same are not being alluded to. 20. Accordingly and for the reasons given above, this writ petition lacks force and is therefore, dismissed.