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2017 DIGILAW 2904 (ALL)

Kanpur Development Authority v. Board of Revenue

2017-12-12

MANOJ MISRA

body2017
JUDGMENT : MANOJ MISRA, J. 1. Heard Sri Ravi Kant, learned senior counsel, assisted by Sri Abhinava Krishna Srivastava, for the petitioner; the learned Standing Counsel for the respondents 1 & 2; Sri Vivek Verma for the respondent No. 3; Sri Akash Chand Maurya for the contesting respondents 4 and 5; and perused the record. 2. Brief facts giving rise to this petition are that one Arjun Dev, predecessor in interest of respondents 4 and 5, instituted an Original Suit No. 414 of 1991 against the petitioner-Kanpur Development Authority (in short KDA) for permanent prohibitory injunction to restrain KDA from demolishing the constructions of the plaintiff existing over plot Nos. 1104, 1105, 1107, 1110, 1111, 1112, 1113, 1115, 1106, 1109, 1116 and 1280 (fully described in the plaint) and not to interfere in the possession of the plaintiff. The plaintiff's case was that since the time of his ancestor he was in possession on the basis of zamindari patta of the year 1942 and that the defendant without any right had issued demolition notice. The defendant contested the suit by claiming that the land had been acquired vide award dated 30.12.1968; that possession was obtained much earlier by Nagar Mahapalika, which was subsequently transferred to KDA and that plaintiff had no right. 3. By judgment and decree dated 3.10.1996, the court of 3rd Additional Civil Judge (Sr. Div.), Kanpur Nagar decreed plaintiff's suit. While deciding the suit it had framed number of issues. Issue No. 2 was in respect of possession and title of the plaintiff whereas Issue No. 5 was as to whether the disputed land was acquired under award dated 30.12.1968. Both the issues were decided in favour of the plaintiff and it was specifically held that the defendant had failed to prove that the disputed land was acquired. 4. The judgment of the trial court was affirmed by the first appellate court vide judgment and decree dated 28.04.2001 passed by 8th Additional District Judge, Kanpur Nagar on an appeal preferred by the petitioner. Thereafter, a time barred second appeal was preferred before this court. 5. By order dated 20.09.2007, this court rejected the delay condonation application and consequently the appeal was dismissed as barred by limitation. 6. Against the order dated 20.09.2007, a Special Leave to Appeal was preferred before the apex court, which was dismissed by order dated 07.03.2008. 7. Thereafter, a time barred second appeal was preferred before this court. 5. By order dated 20.09.2007, this court rejected the delay condonation application and consequently the appeal was dismissed as barred by limitation. 6. Against the order dated 20.09.2007, a Special Leave to Appeal was preferred before the apex court, which was dismissed by order dated 07.03.2008. 7. In the meantime, on the strength of the civil court decree, the Additional District Magistrate (Land Acquisition)/Special Land Acquisition Officer (KDA), Kanpur Nagar, (respondent No. 2) addressed a letter dated 29.07.2005 (at page 257 of the paper-book) to the Tehsildar Sadar Kanpur Nagar, by way of Parwana Amaldaramad, to incorporate the name of decree holder in the records by way of correction of entry. Thereafter, by way of letter dated 16.12.2008 (at page 256 of the paper-book), a reminder was sent and, pursuant thereto, it appears, the decree holder's name was recorded on 01.01.2009. Thereafter, from the record (recital in the order dated 17.10.2017, at page 306) it appears that the land was declared abadi vide order dated 22.06.2010. 8. Against the letter/order dated 16.12.2008, the petitioner filed revision, purportedly, under section 219 of the U.P. Land Revenue Act, 1901, in the year 2017, with a delay of nearly 9 years, before the Board of Revenue at Lucknow (in short Board). It is this revision which has been dismissed vide impugned order dated 17.10.2017. 9. The Board dismissed the revision, inter alia, on the ground that it was not maintainable inasmuch as: (a) after declaration of land as abadi, the Board ceases to have jurisdiction; and (b) the order challenged is an administrative order passed by the land acquisition officer in compliance of a decree affirmed up to the supreme court against the revisionist and therefore if the revisionist has any grievance on basis of new material or evidence then it may take recourse to remedy before competent court having jurisdiction. 10. The learned counsel for the petitioner claimed that the civil court decree is a nullity because the civil court had no jurisdiction to deal with the subject matter in dispute inasmuch as only the revenue court had jurisdiction therefore the civil court decree would not be binding and otherwise also in an injunction suit there was no occasion to declare title. He further pointed out that, in between, Arjun Dev had instituted a suit under section 229-B of the UP ZA & LR Act which was withdrawn by him. He submitted that suit under 229-B was instituted in the year 2001 and was withdrawn in the year 2008. He submitted that even otherwise the respondent No. 2 had no jurisdiction to issue Parwana Dakhal without there being any proceeding for correction of records. 11. The learned counsel for the contesting respondents 4 and 5 supported the view taken by the Board and submitted that the decree of the civil court has become final; that the petitioner never raised any dispute as regards jurisdiction of the civil court; and as no issue as regards jurisdiction of civil court was raised therefore now such an issue cannot be raised by the petitioner who is bound by the decree. 12. I have given thoughtful consideration to the submissions of the learned counsel for the parties. 13. The plea as regards the civil court decree being without jurisdiction seems not to have been raised before the civil court in the suit proceeding. The judgment of the trial court does not reflect that any such plea was raised at the first instance in the written statement. Further, no issue in that regard appeared to have been framed. By insertion of sub-section (1-A) in section 331 of the U.P. Z.A. & L.R. Act (in short the Act), vide U.P. Act No. 4 of 1969, the plea as regards civil court's jurisdiction being barred by section 331 of the Act, if not raised at the earliest possible opportunity and in all cases before settlement of issues, cannot be entertained by any appellate or revisional court. Accordingly, it cannot be said that the decree of the civil court as against the petitioner, in the given circumstances, would be null and void. Moreover, such a claim cannot be entertained in summary proceeding arising from a mutation order. 14. In so far as withdrawal of the suit by the plaintiff filed under section 229-B of the Act is concerned, it will not amount to decree in favour of the petitioner because by that time already a civil court decree was operating against the petitioner. 15. 14. In so far as withdrawal of the suit by the plaintiff filed under section 229-B of the Act is concerned, it will not amount to decree in favour of the petitioner because by that time already a civil court decree was operating against the petitioner. 15. Under the circumstances, the Board was justified in dismissing the revision which was otherwise also highly belated by leaving it open to the petitioner to ventilate its grievance, if otherwise permissible, before court of competent jurisdiction. 16. It is made clear that any observation made in this order should not be construed as any opinion expressed on the availability, or not, of right to maintain any suit or proceeding by either the petitioner or any other party in respect of their right, if any, over the land in dispute. 17. Subject to above, the petition is dismissed.