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2017 DIGILAW 2501 (ALL)

Deshraj v. Board of Revenue U. P. at Allahabad

2017-11-01

MANOJ MISRA

body2017
JUDGMENT : Manoj Misra, J. Heard learned counsel for the petitioner; learned Standing Counsel for respondents 1 to 4 and Sri A.K. Yadav for respondent No. 5. 2. The present petition has been filed challenging the orders dated 19th July, 2017, passed by Board of Revenue, Allahabad in second appeal no. 12 of 2006-07; 31st August, 2006, passed by Additional Commissioner (Judicial), Jhansi Division, Jhansi in appeal no. 86 of 2002-03; and 11th August, 2003, passed by Additional Pargana Adhikari, Lalitpur in suit No. 74 of 2002-03. 3. A perusal of the record would reveal that Bhujbal (predecessor-in-interest of respondents 6 to 12), Kashi Ram (respondent no. 13) and Teeju (respondent no. 14) instituted suit no. 74 of 2002-03 against Sunne (predecessor-in-interest of the petitioner), under Section 229-B of U.P.Z.A. & L.R. Act for being declared co-bhumidhars with Sunne over several plots. The plaint case was that the disputed plots were ancestral holding coming from the maternal grandfather of the plaintiffs, namely, Damru. It was claimed that Damru had only a daughter named Maya, who was married to Natthu. Smt. Maya had four sons, namely, Sunne (defendant No. 3), predecessor-in-interest of the petitioner; Bhujbal (plaintiff No. 1); Kashi Ram (plaintiff No. 2) and Teeju (plaintiff No. 3). It was claimed that Sunne being the elder brother got his name exclusively entered in the revenue record and therefore the entry should be treated as entry in representative capacity and a declaration be made that all the four brothers had equal share in the plots concerned. The petitioner had filed written statement in which there was no specific denial of the pedigree disclosed by the plaintiffs although, in paragraph 15 of the written statement, it was stated that the plaintiff No. 3, namely, Teeju, was not son of Natthu. However, there was no specific denial of the statement that he was son of Smt. Maya, the daughter of Damru, from whom the plaintiffs had set up their title. In the written statement, the defendant No. 3, predecessor-in-interest of the petitioner, had sought to develop a plea that the plots were exclusive property of the petitioner and he was in exclusive possession, therefore, the suit was liable to be dismissed. 4. The trial Court found that in 1349 Fasli few plots, which were subject matter of suit, were recorded in the name of Damru and thereafter in 1356 Fasli Sunne alone was recorded. 4. The trial Court found that in 1349 Fasli few plots, which were subject matter of suit, were recorded in the name of Damru and thereafter in 1356 Fasli Sunne alone was recorded. The trial Court thereafter considered the oral testimony of Sunne and found that he admitted that he was eldest amongst his brothers; that he came in possession of his maternal grand father's land; and that he got his all younger brothers married. The trial Court thus came to the conclusion that since the right had come from maternal grandfather and the parties (contesting) were brothers, therefore entry in the name of Sunne should be treated as a representative entry, representing the interest of all brothers and as such all brothers were entitled to equal share; and declaration that they were co-bhumidhars was made. 5. Against the decree passed by the trial Court dated 11th August, 2003, the petitioner filed an appeal before the Additional Commissioner (Judicial), Jhansi Division, Jhansi, which was partly allowed by order dated 31st August, 2006 upon finding that plaintiffs were entitled to succeed only to the extent of those plots which were found recorded in 1349 Fasli in the name of common ancestor Damru as such the trial Court decree was partly set aside and was modified accordingly. 6. Aggrieved by the order passed by the first appellate Court, the petitioner filed second appeal No. 12 of 2006-07 before the Board of Revenue, which came to be dismissed by order dated 19th July, 2017. 7. Learned counsel for the petitioner has sought to challenge the judgment and decree passed by the Court below on ground that a specific plea was taken by the petitioner that the plaintiff No. 3, namely, Teeju (respondent No. 14) was not son of Natthu and the said plea has not been addressed by the Courts below, therefore, the order passed by the Courts below needs to be set aside and the matter requires to be remanded back. 8. To ascertain whether the aforesaid stand was taken by the petitioner before the first appellate Court as well as second appellate Court, the grounds of appeal which was filed before the Board of Revenue has been perused. The grounds of appeal have been appended along with petition as Annexure-8 thereof. 9. 8. To ascertain whether the aforesaid stand was taken by the petitioner before the first appellate Court as well as second appellate Court, the grounds of appeal which was filed before the Board of Revenue has been perused. The grounds of appeal have been appended along with petition as Annexure-8 thereof. 9. A perusal of grounds of appeal would disclose that no such plea was taken by the petitioner before the second appellate Court. Even otherwise the plaintiffs had not claimed right through Natthu but had claimed right through mother Smt. Maya and their maternal grandfather Damru. The plea which was taken by the defendant No. 3, (predecessor-in-interest of the petitioner), in paragraph 15 of the written statement, is not that the plaintiff No. 3 Teeju was not son of Smt. Maya though the plea is that he was not son of Natthu. Even assuming that the plaintiff No. 3 was not son of Natthu but since it is not denied that he was son of Smt. Maya and Smt. Maya was daughter of original holder Damru, there would be no effect on the right of plaintiff No. 3 even if he had been son of a different father. However, since no specific plea was taken before the second appellate Court as regards the relationship of Teeju with Smt. Maya or Damru i.e. the common ancestor, this Court finds no good reason to interfere with the order passed by the Courts below on the ground urged. 10. Otherwise this Court has perused the orders passed by the Courts below carefully and has found that the plaintiffs' suit has been decreed only to the extent of those plots that were found recorded in the name of maternal grandfather of the contesting parties and in respect of which admission was also made by Sunne in his oral testimony as noticed in the trial Court's judgment. Since it has not been specifically denied that the parties were brothers, the entry, if any, exclusive in the name of the predecessor-in-interest of the petitioner, namely, Sunne, shall be deemed to be a representative entry, particularly when it has been proved that the rights have flown from a common ancestor. Since it has not been specifically denied that the parties were brothers, the entry, if any, exclusive in the name of the predecessor-in-interest of the petitioner, namely, Sunne, shall be deemed to be a representative entry, particularly when it has been proved that the rights have flown from a common ancestor. Further, as it has not been pleaded nor brought on record that any consolidation operations had intervened in the interregnum the suit for declaration of rights was maintainable and therefore this Court finds no good reason to interfere with the orders impugned, which are based on proper consideration of evidence on record. 11. The petition is dismissed.