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2020 DIGILAW 258 (ALL)

Lalu Ram v. Board of Revenue

2020-01-22

SALIL KUMAR RAI

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JUDGMENT : Salil Kumar Rai, J. 1. Heard the Counsel for the parties. 2. Kalpoo, i.e., the predecessor of the petitioners was initially recorded as the tenure holder of the disputed plots, i.e., the plots in dispute between the petitioners and the respondents in the present writ petition as well as in the proceedings before the courts below from which the present writ petition arises. Subsequently, in the revenue records of 1374 Fasli, Munnu @ Punnu, i.e., the predecessor of the respondents was recorded as the Bhumidhar of the disputed plots. The respondents claim that their predecessors - Munnu @ Punnu was recorded as the tenure holders of the disputed plots, as a consequence of order dated 9.5.1967. Case No. 59/98/298 under section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') was filed by the petitioners for being declared as Bhumidhars of the disputed plots. In the plaint instituting the aforesaid case, the petitioners denied that there were any proceedings culminating in the order dated 9.5.1967 and pleaded that the order dated 9.5.1967 was a forged order and the entries in the revenue records relating to 1374 Fasli were also forged entries. The respondents filed written statement contesting the aforesaid case and, amongst others, pleaded the bar of section 49 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953'). It has been stated in the writ petition that the consolidation operations started in the village in the year 1967 and it appears from the pleadings that a notification under section 52 of the Act, 1953 was published in 1975. In their testimony before the Trial Court, the respondents also stated that during the consolidation operations in the village there was some compromise between Kalpoo, i.e., the predecessor of the petitioners and Munnu @ Punnu, i.e., the predecessor of the respondents. The Trial Court vide its order dated 14.2.2005 decreed Case No. 59/98/298 and the appeal filed by the respondents against the said decree and registered as Appeal No. 28/A of 2005-06 was dismissed by the first Appellate Court vide its order dated 23.6.2006. The Trial Court vide its order dated 14.2.2005 decreed Case No. 59/98/298 and the appeal filed by the respondents against the said decree and registered as Appeal No. 28/A of 2005-06 was dismissed by the first Appellate Court vide its order dated 23.6.2006. In their judgments, the Trial Court and the first Appellate Court recorded a finding that the alleged order dated 9.5.1967 was a forged order and the entries as a consequence of the same in the revenue records of 1374 Fasli were also forged entries. In its order dated 23.6.2006, the first Appellate Court has recorded a finding that the disputed plots were recorded in the name of predecessor of the petitioners in C.H. Form - 23. Against the judgments and decrees passed by the Trial Court and the first Appellate Court, the respondents filed Second Appeal No. 10 of 2005-06 before the Board of Revenue. In the aforesaid second appeal, a substantial question of law was framed as to whether the proceedings registered by the petitioners under section 229-B of the Act, 1950 were barred by section 11 of the Code of Civil Procedure, 1908 and section 49 of the Act, 1953. The Board of Revenue vide its judgment and order dated 28.2.2014 allowed the second appeal filed by the respondents and dismissed Case No. 59/98/298 filed by the petitioners. In its judgment and order dated 28.2.2014, the Board of Revenue held that proceedings instituted by the petitioners were barred by section 49 of the Act, 1953 and further, the order dated 9.5.1967 had attained finality against the petitioners because the petitioners had not deposited the cost as directed in the order dated 23.11.1967 passed by the Judicial Officer/Assistant Collector, Azamgarh vide his order dated 23.11.1967. The judgment and order dated 28.2.2014 passed by the Board of Revenue has been challenged in the present writ petition. 3. The alleged order dated 23.11.1967 has been annexed as Annexure No. 1 to the Application No. 3 of 2018 filed by the petitioners. A reading of the order dated 23.11.1967 shows that through the aforesaid order, the restoration application allegedly filed for recall of the order dated 9.5.1967 was allowed on cost of ` 20/- and it was directed that the application would stand automatically dismissed if the cost was not deposited by 1.12.1967. 4. A reading of the order dated 23.11.1967 shows that through the aforesaid order, the restoration application allegedly filed for recall of the order dated 9.5.1967 was allowed on cost of ` 20/- and it was directed that the application would stand automatically dismissed if the cost was not deposited by 1.12.1967. 4. It is also interesting to note that in the proceedings before the Courts below, the petitioners had denied any compromise between their predecessor and predecessor of the respondents and also stated that as they were minor during the consolidation operations and were also minor at the time of death of their father, i.e., Kalpoo. The claim of the petitioners that they were minor during the consolidation operations has been denied in the counter-affidavit and a family register has been filed which shows that petitioner Nos. 1 and 2 were born in 1951 and 1956 respectively while petitioner No. 3 was born in 1971 and petitioner No. 4 was born in 1961. Petitioner No. 4 is shown as the widow of one Sevak, one of the deceased sons of Kalpoo. The family register annexed with the counter-affidavit shows that Sevak was born in 1960. From the family register annexed with the counter-affidavit filed by the respondents, it is evident that till 1975, petitioner Nos. 3 and 4 and the husband of petitioner No. 4 were minor and were under a legal disability. 5. The issue as to whether the proceedings were barred by section 49 of the Act, 1953 depended on the question as to whether the findings recorded by the first Appellate Court that Kalpoo, i.e., the predecessor of the petitioners, was recorded in C.H. Form - 23 in relation to the disputed plots, was supported by the evidence on record. The respondents have filed a copy of C.H. Form - 23 and C.H. Form - 41 showing that the disputed plots were recorded in C.H. Form - 23 relating to the predecessor of the respondents. It is not for this Court to express any opinion regarding the genuineness of the aforesaid document or to record any finding on the same and, therefore, this Court is not expressing any opinion regarding the contention of the respondents that the disputed plots were shown in C.H. Form - 23 relating to the predecessor of the respondents. It is not for this Court to express any opinion regarding the genuineness of the aforesaid document or to record any finding on the same and, therefore, this Court is not expressing any opinion regarding the contention of the respondents that the disputed plots were shown in C.H. Form - 23 relating to the predecessor of the respondents. It is sufficient to note that in case, the disputed plots were shown in C.H. Form - 23 relating to Kalpoo, i.e., the predecessor of the petitioners, there was no occasion either for the petitioners or their predecessor to raise any objection during the consolidation operations. In its order dated 28.2.2014, the Board of Revenue has not recorded any finding regarding the aforesaid aspect and the finding recorded by the first Appellate Court has not been reversed by the Board of Revenue. Apart from the aforesaid, it is evident from a reading of the order passed by the Trial Court that in the Trial Court, the respondents had pleaded that during the consolidation proceedings mere was a compromise between the predecessor of the petitioners and the predecessor of the respondents. The occasion for compromise would arise only if a dispute was registered before the Consolidation Officer. In case, Kalpoo had died either during or before the consolidation operations, the fact that petitioner Nos. 3 and 4, who were admittedly minor till 1975 and were, therefore, under a legal disability would also be relevant to consider the issue as to whether the suit was barred by section 49 of the Act, 1953. In its order dated 28.2.2014, the Board of Revenue has held that Kalpoo was alive during the consolidation operations. However, no evidence has been referred by the Board of Revenue in support of its findings. Further, in their orders dated 14.2.2005 and 23.6.2006, the Trial Court and the first Appellate Court have held that the alleged order dated 9.5.1967 was a forged order and the entries in favour of the petitioners in the revenue records were also forged. The said finding has not been reversed by the Board of Revenue in its judgment and order dated 28.2.2014. At this stage, it would be relevant to note that vide order dated 23.11.1967, the restoration application was allowed and the alleged order dated 9.5.1967 was set-aside. The said finding has not been reversed by the Board of Revenue in its judgment and order dated 28.2.2014. At this stage, it would be relevant to note that vide order dated 23.11.1967, the restoration application was allowed and the alleged order dated 9.5.1967 was set-aside. In its order dated 28.2.2014, the Board of Revenue has not recorded any finding on the aforesaid aspects which were necessary to decide as to whether the proceedings instituted by the petitioners were barred by section 49 of the Act, 1953 and has, in a very cryptic manner, allowed the second appeal setting-aside the decrees passed by the Trial Court and the first. Appellate Court. For the aforesaid reasons, the order dated 28.2.2014 passed by the Board of Revenue is contrary to law and is liable to be set-aside and is, hereby, quashed. 6. The matter is remanded back to the Board of Revenue, Uttar Pradesh at Allahabad, i.e., respondent No. 1 to pass fresh orders in Second Appeal No. 10 of 2005-06 within a period of six months from the date a certified copy of this order is produced before it after giving an opportunity of hearing to the affected parties. 7. With the aforesaid directions, the writ petition is allowed.