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2020 DIGILAW 1308 (ALL)

Hanumat Singh v. State of U. P.

2020-11-10

ANJANI KUMAR MISHRA

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JUDGMENT : 1. Heard Shri Kshitij Shailendra, learned counsel for the petitioners, Shri Sunil Kumar Singh, learned counsel for the Gaon Sabha, learned Standing Counsel for the State-respondents and Shri S.K. Mishra, learned counsel for the private respondents. 2. The writ petition arises out of a declaratory suit filed by the respondents seeking to be declared the bhumidhars of plot nos. 276, 292, 294, 295, 296, 298, 299 and 308 situated in Village Rakshpalpur, Pargana Ekhla, Tehsil Khaga, District Fatehpur. The trial court dismissed the suit on 14.11.2018. 3. Against this order, the plaintiff-respondents preferred a revision before the Board of Revenue, which has been allowed. The judgment and decree of the trial court has been set-aside and the suit has been decreed finding the claim in the suit to be proved. 4. A short counter affidavit was filed by Shri S.K. Mishra, learned counsel for the respondents. He had also made a statement that he did not propose to file any other document or detailed counter affidavit in the matter. Even, Shri Kshitij Shailendra stated that he did not propose to file any reply to the short counter affidavit. 5. Accordingly, the matter is being heard finally with the consent of the parties. 6. The contention of Shri Kshitij Shailendra is that the suit purporting to be under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act was filed on 09.11.2015 as his clear from the copy of the plaint filed along with the writ petition. He has submitted that Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act,could not have been invoked as on the day the plaint was filed, the U.P. Zamindari Abolition and Land Reforms Act stood repealed and replaced by the U.P. Revenue Code, 2006. The suit therefore, must necessarily be considered to be one under Section 144 of the U.P. Revenue Code, 2006. The suit was dismissed by the trial court holding primarily that the plots in suit were recorded in the revenue records as khalihan and manure pit. The land in suit was therefore, land of public utility, wherein no rights can accrue in favour of any person. The judgment and decree in a declaratory suit under Section 144 of the Revenue Code, 2006, is appealable under Section 207. The land in suit was therefore, land of public utility, wherein no rights can accrue in favour of any person. The judgment and decree in a declaratory suit under Section 144 of the Revenue Code, 2006, is appealable under Section 207. No appeal was filed and straightaway a revision was filed before the Board of Revenue, which again could have been filed only under Section 210 of the Code, although it is titled as one under Section 333 of the U.P. Zamindari Abolition and Land Reforms Act. 7. The revision, it is submitted was not maintainable and could not have been entertained in view of the amendment made in Section 210, itself, which provides that no revision lies against a judgment or order against which an appeal is provided under the Code. 8. On the merits he has submitted that declaratory suit could not have been filed without first applying for mutation as is provided under Section 34(5) of the Land Revenue Act and Section 37 of the Revenue Code, 2006. 9. Shri S.K. Mishra, learned counsel for the respondents has submitted that the instant writ petition is not maintainable. It is filed by persons who were not parties in either the suit or the revision. He has next submitted that proceedings under Section 122-B of the Act had been drawn against Kusum Chandra Singh, respondent no. 4, which proceedings were ultimately dropped. Therefore, the suit has rightly been decreed by the Board of Revenue. The plaintiff-respondents are in possession since the time of their forefathers, who had been granted an Izajatnama of the land in suit by the Zamindar on 01.07.1948. He has also referred to page 21 of the short counter affidavit filed by him to submit that a public interest litigation was also filed, which was also dismissed taking note that proceedings under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act had been dropped against the plaintiff-respondents. It is therefore, submitted that the writ petition is liable to be dismissed. 10. In rejoinder, the contention of Shir Kshitij Shailendra, learned counsel for the petitioners is that the petitioners had filed an impleadment application in the suit. This impleadment application was not disposed of but the petitioners were heard in opposition of the suit and this fact finds a mention in the order of the trial Court, itself. 11. 10. In rejoinder, the contention of Shir Kshitij Shailendra, learned counsel for the petitioners is that the petitioners had filed an impleadment application in the suit. This impleadment application was not disposed of but the petitioners were heard in opposition of the suit and this fact finds a mention in the order of the trial Court, itself. 11. In any case the petitioners were necessary parties in the revision as they had been heard before the suit was dismissed by the trial Court and their impleadment application dated 12.09.2017 was never rejected. This averment in para 17 of the writ petition has not been controverted in the short counter affidavit. Moreover, part of the land in suit is recorded as khalihan, which is used as such by the petitioners. Hence their interest involved in the matter. The petitioners therefore, have a right to maintain this writ petition. 12. As regards the submission of Shri S.K. Mishra that proceedings under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act had been dropped against the plaintiff-respondents, he is submitted that proceedings under Section 122-B were only with regard to a small portion of the land in suit and the proceedings were dropped because this Court found that a question of title was involved, therein. 13. I have considered the submissions made by learned counsel for the parties and perused the record. 14. The plaint case was that the forefather of the plaintiffs had been granted an Izajatnama by the erstwhile Zamindar on 01.07.1948. The plaintiff-respondents and their forefather were in continuous possession ever since. They, being rustic villagers and since they were in cultivatory possession, never tried to get their name recorded over the land. Admittedly, they never sought mutation nor filed any objection during consolidation operations for getting their names recorded. However, when the State Authorities started to interfere in their possession, the suit was filed. 15. The trial court dismissed the suit holding it to be barred by Section 49 of the U.P. Consolidation of Holdings Act and also on the ground that since the land subject matter of the suit was recorded in class 6(4) as khalihan and manure pit, the same was public utility land over which no rights could accrue in favour of any person. 16. 16. Admittedly, against the judgment and decree of the trial court no appeal was preferred and the revision has been filed before the Board of Revenue, which has been allowed by the order impugned. 17. It is not disputed that the suit had been instituted on 09.11.2015. The U.P. Revenue Code, 2006 has been enforced w.e.f. 11.02.2016. Therefore, the suit of the respondents filed on 09.11.2015 was under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, clearly lay. 18. Against the judgment of the trial court, it is no doubt true that a first appeal lay under Section 331, but Section 333 of the U.P. Zamindari Abolition and Land Reforms Act also provides that where an appeal lies but has not been filed, the revisional jurisdiction can be invoked. Therefore, the revision filed by the petitioners was clearly maintainable and has rightly been entertained. 19. Since the petitioners had filed an application for impleadment and the order of the trial court records that they were heard, it would be deemed that the impleadment application had been allowed. In any case, it should have been allowed because it is the petitioners case that they used the land in suit for khalihan. The petitioners therefore, were necessary parties in the revision before the Board of Revenue and they have a right to prefer this writ petition. 20. However, it is not in dispute that the petitioners were not a party in the revision before the Board of Revenue nor they were afforded any opportunity of hearing. This fact is established from the memo of revision filed as Annexure 9 to this writ petition on page 91 of the paper book. The revisional order therefore is, ex-parte against the petitioners, who were necessary parties, therein. 21. Under the circumstances, the revision, itself in the absence of the necessary parties was defective. For the same reason, the revisional order cannot be sustained and is liable to be set-aside. 22. There is yet another reason for holding that the petitioners were necessary parties. There were three opposite parties in the revision, namely the State of U.P. through District Magistrate, Fatehpur, the Gram Panchayat, Rakshpalpur through its Pradhan and the Land Management Committee, Gram Panchayat, Rakshpalpur through its Chairman. 23. It is admitted to learned counsel for the respondents that when the revision was filed, plaintiff no. There were three opposite parties in the revision, namely the State of U.P. through District Magistrate, Fatehpur, the Gram Panchayat, Rakshpalpur through its Pradhan and the Land Management Committee, Gram Panchayat, Rakshpalpur through its Chairman. 23. It is admitted to learned counsel for the respondents that when the revision was filed, plaintiff no. 4 in the suit Mahendra Singh was the Pradhan of the village, although it has been submitted that when the suit was instituted Mahendra Singh was not the Pradhan of village Rakshpalpur. This however establishes that the one of the plaintiff-revisionist and two of the opposite parties in the revision were the same. The other revisionists are uncle and brother of Mahendra Singh, Pradhan. 24. Moreover, since Mahendra Singh was the Pradhan of village Rakshpalpur when the revision was filed and he was also one of the revisionists, this fact should have been disclosed in the revision at least in view of the principle enshrined in Section 29-C of the U.P. Panchayat Raj Act even though the section, strictly construed is not attracted. 25. On a pointed query by the Court, learned counsel for the respondents has admitted that this was not done. Even the third opposite party in the revision, namely the Land Management Committee is represented by its Chairman, who again is the Pradhan of the Gram Panchayat. Therefore, there was clear conflict of interest, which is liable to be manifest miscarriage of justice. This is another reason why the petitioners are appeared to be necessary parties in the proceedings. It is also settle law that the interest of the Gaon Sabha is to be protected by the courts. 26. Accordingly, and since the revision was defective in the absence of necessary parties and the revisional order is ex-parte against the petitioners, the same is, liable to be set aside, the matter is liable to be remanded back to the Board of Revenue to implead the petitioners in this writ petition as opposite parties in the revision and to thereafter decide the revision afresh after affording them since the matter is being remanded back, the other submissions of petitioners on merits are not being considered. They shall be considered by the Board of Revenue where the matter is being remanded adequate opportunity of hearing. 27. Accordingly, the writ petition is allowed. They shall be considered by the Board of Revenue where the matter is being remanded adequate opportunity of hearing. 27. Accordingly, the writ petition is allowed. The impugned order dated 06.03.2019 passed by the Board of Revenue in Revision No. 2889 of 2018, Kusum Chandra Singh Vs. State of U.P. & Others, is hereby set aside and the matter is remanded back for a fresh decision after impleading the petitioners as opposite parties in the revision and after affording them adequate opportunity of hearing, bearing in mind the observations made in the body of the judgment above.