Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 104 (ALL)

Jharkhandey v. State of U. P.

2020-01-09

ANJANI KUMAR MISHRA

body2020
JUDGMENT : Anjani Kumar Mishra, J. 1. Heard learned Counsel for the petitioner and Shri Bhawesh Pratap Singh for the respondent No. 4. The writ petition arises out of a suit for declaration under section 229-B of the U.P. Zamindari Abolition and Land Reforms Act filed by the predecessor-in-interest of the respondents. 2. This suit was filed seeking declaration regarding plot No. 184Ka area 2.72 acres recorded as 'Pokhri'. It was the case of the plaintiff that the defendants, predecessor-in-interest of the petitioner were wrongly recorded over this plot. They belonged to a different family and have no concern with the same. The plaintiff claims to be the defendant of one Chekhuri. 3. The suit was contested by the defendants claiming that Chekhuri had two sons, Babu Lal and Damdi. The plaintiff belonged to the branch of Babu Lal and that the defendants belonged to the branch of Damdi. They (defendants) were the descendent of Bahadur son of Damdi. 4. The Trial Court decreed the suit finding that the caste of the plaintiff, in the death register extracts, was shown as 'Kahar' while that of the defendant was recorded as 'Dheemar'. They therefore, could not belong to the same family. 5. With regard to the defence that the defendants were descendents of Bahadur, who was son of Damdi, relying upon the death register extracts which recorded that Damdi died on 25.9.1909 aged between 15 to 20 years, which meant that he was born around 1889. Bahadur alleged son of Damdi, died on 8.3.1933, aged between 50 to 60 meaning thereby, that he was born between 1873 to 1883. The Courts below have come to the conclusion that Bahadur could not be the son of Damdi. In any case, it was the plaint case that Damdi died during minority. 6. The suit was also decreed by the Courts below because there was documentary evidence to show that the plaintiffs were in possession over the suit property and the defendants had failed to file any evidence controverting the same. 7. The first contention of Counsel for the petitioner is that the finding returned by the Courts below that Bahadur was not the son of Damdi is incorrect. 8. The finding returned by the Courts below is based upon documentary evidence on record, which has been duly appreciated. 7. The first contention of Counsel for the petitioner is that the finding returned by the Courts below that Bahadur was not the son of Damdi is incorrect. 8. The finding returned by the Courts below is based upon documentary evidence on record, which has been duly appreciated. This finding returned upon due appreciation of the evidence is a finding of fact, which can be interfered with only on the ground of perversity. No perversity has either been alleged or pleaded by the petitioner. The impugned order therefore, is not liable to be interfered with on the ground urged by the petitioner. 9. It has also been submitted that the trial Court did not frame any issues but this submission is not correct. A similar plea had been taken before the revisional Court also. However, from a perusal of the material on record, this Court finds that the order of the trial Court impugned is an order passed by the trial Court upon remand. As many as ten issues had been framed in the suit earlier. The submission of learned Counsel for the petitioner is therefore, without substance. 10. It is also sought to be contended that the suit was barred by section 49 of the U.P. Consolidation of Holdings Act, inasmuch as the parties had entered into a compromise before the Consolidation Officer, which had earlier been accepted by him. However, only the compromise application has been brought on record and not the order accepting the compromise. Moreover, since no such plea appears to have been raised before the Courts below and it is not conclusively proved that an objection, regarding title to the plot in question, had been decided by the Consolidation Courts, the bar of section 49 of the U.P. Consolidation of Holdings Act is not liable to be accepted. 11. Since the submissions made by learned Counsel for the petitioner have been repelled above, this Court does not find any good ground to interfere. 12. There is yet another reason why the petition is liable to be dismissed. The memo of revision filed by the petitioner copy whereof has been filed as Annexure 11 to the writ petition, shows that it was the petitioner alone, who had preferred the revision. There were as many as 16 private respondents. 13. 12. There is yet another reason why the petition is liable to be dismissed. The memo of revision filed by the petitioner copy whereof has been filed as Annexure 11 to the writ petition, shows that it was the petitioner alone, who had preferred the revision. There were as many as 16 private respondents. 13. This instant petition, as framed, is therefore, defective as only one of the private respondents has been arrayed in the writ petition. There is no averment that the other 15 opposite parties in the revision are dead and have not left behind any heir. 14. For the reasons given above, this writ petition is liable to be and is hereby dismissed.