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2023 DIGILAW 1125 (ALL)

Jai Bhagwan v. State of U. P.

2023-04-24

JAYANT BANERJI

body2023
JUDGMENT Jayant Banerji, J. Heard Shri Pankaj Agarwal, learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents. Respondent nos. 4 to 11 are represented by Shri Anshu Chaudhary, learned counsel. 2. This writ petition has been filed for setting aside/quashing the order dated 24.4.2019 passed by the respondent no. 2, Board of Revenue in Case No. REV/851/2015, Computerized Case No. AL2015117300851 (Bijendra Singh v. Jai Bhagwan). By means of the revisional order impugned, the Board has set aside the order dated 31.3.2015 passed by the Sub-Divisional Officer, Dhaulana, Hapur (respondent no. 3) passed on application moved under Order 7, Rule 11 of the Code of Civil Procedure filed by the petitioners on the ground that the plaint is liable to be rejected as being barred under the provisions of Section 49 of the U.P. Consolidation of Holdings Act, 1953. The case set up in the petition is that a suit was filed under Section 229B of the U.P.Z.A. and L.R. Act, 1950 by the respondent nos. 4 to 11 against the petitioners seeking declaration as bhumidhar over Khasra plot no. 339, area 0.3160 hectare and Khasra No. 400 area 0.1900 hectare situate at Village Piplabandpur, Pargana Dasna, Tehsil Dhaulana, District Hapur. It is stated that the suit set up by the defendant-respondents was a false case as they have no right or title over the land in question. It is stated that in the plaint it was alleged that the predecessor of the plaintiff-respondents, Late Smt. Jhando Devi was gifted land by the predecessor in interest Shri Govind Ram by executing a registered instrument of gift in the year 1938. It was stated that allegation in the plaint was that the plaintiffs-respondents were in possession of the said land in dispute ever since. It was alleged in the plaint that during chakbandi proceedings as the plots in question were recorded as grove land, they were kept outside the purview of chakbandi proceedings and such a claim for declaration of rights was not required to be raised during chakbandi process and hence the suit for declaration was filed under the Act, 1950. The defendant-petitioners filed an application under Order 7, Rule 11 C.P.C. on 26.8.2014 on which repeated time was granted to the defendant-respondents to file the objections. The defendant-petitioners filed an application under Order 7, Rule 11 C.P.C. on 26.8.2014 on which repeated time was granted to the defendant-respondents to file the objections. It is stated that the application under Order 7, Rule 11 C.P.C. was allowed on 31.3.2015 by the Sub-Divisional Officer. Aggrieved against the order rejecting the plaint, the plaintiff-respondents filed the aforesaid revision before the Board of Revenue which was allowed by the order impugned. 3. The contention of the learned counsel for the petitioner is that the settled law is that while deciding an application under Order 7, Rule 11 C.P.C. the court is required to peruse the plaint alone and no other pleading. It is contended that on bare perusal of the plaint reveals that chakbandi proceedings had taken place and that no claim was filed by the defendant-respondents in chakbandi proceedings and therefore, given the mandate of Section 49 of the Act, 1953, the suit was barred. The second contention of the learned counsel for the petitioner is that consolidation proceedings would take into account the entire the village for which notification under Section 4 is issued and even though the plots in dispute were kept out of consolidation proceedings, given the fact that they are grove land, it was always open for the plaintiff-respondents to press their claim in proceeding under Section 9-A(2) of the Act, 1953 which they had failed to do and hence the order of the Sub-Divisional Officer dated 31.3.2015 is justified which require no interference in revision. 4. Learned counsel for the defendant-respondent has stated in the counter affidavit that the title of contesting respondents over the disputed property devolves from their predecessor in interest, Smt. Jhando Devi wife of Bhagwana, on the basis of the registered instrument of the year 1938 executed by one Govind Ram the exclusive bhumidhar of the disputed plots and as such the defendant-respondents being successors of the aforesaid Smt. Jhando Devi did not require to stake their claim in chakbandi proceedings when there was no dispute with regard to their claim. It is stated that the mandate of Section 49 of the Act, 1953 would not apply to the defendant-respondents inasmuch as there was no occasion for them to have raised any claim under Section 9-A(2) of the Act, 1953 as the plots in question being grove land were kept out of the consolidation proceedings. It is stated that the mandate of Section 49 of the Act, 1953 would not apply to the defendant-respondents inasmuch as there was no occasion for them to have raised any claim under Section 9-A(2) of the Act, 1953 as the plots in question being grove land were kept out of the consolidation proceedings. It is contended that though several objections were raised in the application filed by the defendant-petitioners under Order 7, Rule 11 C.P.C., however, the sole point that was pressed was with regard to the bar of Section 49 of the Act, 1953. Learned counsel for the respondents has referred to the impugned order of the Board to contend that the Board had perused the copy of the family register of the defendant-respondents which was on record and also the Khatauni of the Fasli year 1362 in which the name of the Govind Ram was recorded as the chief tenure holder and in the basic Khasra pertaining to previous numbers of the plots in dispute in Column 10, the hut of Smt. Jhando Devi with grove was mentioned. It is stated that the Board has correctly recorded a finding that no cause had arisen during chakbandi proceedings to Smt. Jhando Devi which would require her to move in proceedings under Section 9-A(2) of the Act, 1953. It is stated that there was no material in the plaint to disclose the date of notification under Section 4 of the Act, 1953 or other details relating to chakbandi proceedings that would lead the trial court to reject the plaint. 5. Having heard the learned counsel for the parties, it appears from perusal of the record that it is admitted that the defendant-respondents are claiming their title on the basis of a registered instrument of gift in respect of the properties in dispute that is said to have been executed by predecessor in interest of the defendant-petitioners in the year 1938. A perusal of the plaint that is enclosed as Annexure No. 1 to the writ petition reveals that reference to chakbandi proceedings has been made in paragraph no. 3 of the plaint which is as under: 6. Other than the aforesaid averment made in the plaint, there is no other reference to chakbandi proceeding. A perusal of the plaint that is enclosed as Annexure No. 1 to the writ petition reveals that reference to chakbandi proceedings has been made in paragraph no. 3 of the plaint which is as under: 6. Other than the aforesaid averment made in the plaint, there is no other reference to chakbandi proceeding. The application under Order 7, Rule 11 C.P.C. appears as Annexure No. 3 to the writ petition in which several grounds have been taken for rejection of the plaint. The ground no. 2 is that the plaint is barred by the provisions of Section 49 of the Act, 1953. On record is a copy of the entire order-sheet of the proceedings before the court of the Sub-Divisional Officer. A perusal of the order-sheet reveals that the plaintiff-respondents were afforded adequate opportunity to file their objection and submit their written arguments. Order 7, Rule 11 C.P.C. provides for rejection of the plaint on occurrence of any or more of the six instances mentioned therein. Clause (d) of Rule 11 provides that where the suit appears from the statement in the plaint to be barred by any law, the plaint shall be rejected. It is admitted to the defendant-petitioners that the only ground pressed before the Sub-Divisional Officer was that the suit was barred under Section 49 of the Act, 1953. 7. Section 49 of the Act, 1953 reads as under: "49. Bar to civil Courts jurisdiction. It is admitted to the defendant-petitioners that the only ground pressed before the Sub-Divisional Officer was that the suit was barred under Section 49 of the Act, 1953. 7. Section 49 of the Act, 1953 reads as under: "49. Bar to civil Courts jurisdiction. - Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of right of tenure-holder in respect of land lying in an area, for which a [notification] has been issued under sub-section (2) of Section 4 or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act : Provided that nothing in this section shall preclude the Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act." 8. Section 9-A(2) of the Act reads as under: "(2) All cases which are not disposed of by the Assistant Consolidation Officer under sub-section (1), all cases relating to valuation of plots and all cases relating to valuation of trees, wells or other improvements, for calculating compensation therefor, and its apportionment amongst co-owners, if there be more owners than one, shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer, who shall dispose of the same in the manner prescribed." 9. A perusal of Section 49 reveals that there is a bar on the entertainment of any suit or proceeding with respect to rights of land covered under a notification issued under sub-section (2) of section 4 or that is subject matter of adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, 1953. Under Section 9-A, the Assistant Consolidation Officer is enjoined to consider objections in respect of claims to land or partition where objections in respect of claims to land or partition of joint holdings are filed, and where no objections are filed, after making such enquiry as he may deem necessary, settle the disputes, correct the mistakes and effect partition as far as may be by conciliation between the parties. Such cases which are not disposed of by the Assistant Consolidation Officer, the same shall be forwarded by him to the Consolidation Officer, who shall dispose of the same in the manner prescribed. 10. The plots in disputes are admittedly transferred on the basis of the aforesaid registered instrument of gift executed in the year 1938. Given the entry in Column 10 of the Khasra for the basic year, it cannot be said that the plaint was liable to be rejected at the initial stage, inasmuch as the decision on the question involved considering both factual and legal issues that could be effectively done by the court at the appropriate stage. The contention of the learned counsel for the petitioner-defendant that given the notification under Section 4 of the Act, 1953 which covered the entire village, the Act cast liability or duty on a person having a title on the basis of a registered instrument of gift and to raise the same in consolidation proceedings, is of no substance in view of the discussion made herein and is accordingly, rejected. 11. For the reasons aforesaid, no cause for interference is made out in exercise of writ jurisdiction and this writ petition is, accordingly, dismissed. 12. It is made clear that any observation made herein above are for the sole purpose of adjudication of this writ petition and shall not be taken as opinion of the merits of the claim of the either of the parties.