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Allahabad High Court · body

2023 DIGILAW 2331 (ALL)

Karan Singh v. State of U. P.

2023-10-10

CHANDRA KUMAR RAI

body2023
JUDGMENT Chandra Kumar Rai, J. Heard Mr. Uttar Kumar Goswami, learned counsel for the petitioners, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents, Mr. Madhu Ranjan Pandey, learned counsel for respondent nos.4, 5, 6 & 7 and Mr. Sher Bahadur Singh, learned counsel for respondent no.8 i.e. Gaon Sabha. 2. Brief fact of the case are that one Umar was the original tenure holder / bhumidhar of Khasra No.53 area 3.092 acre, Khasra No. 120 area 0.95 acre, Khasra No. 215 area 2.74 acre, situated in Village- Rudrapur, Pargana & Tahsil- Pooranpur, District- Pilibhit and Khasara No.84 area 0.93 acre situated in Village- Loharpur, Pargana and Tehsil- Pooranpur, District- Pilibhit. The family pedigree of Umar will be relevant for perusal which is as under:- 3. On 1.8.1985, respondent Nos. 4 & 5 along with Jeewan Lal filed a suit, under Section 229B/176 of U.P.Z.A. and L.R. Act for declaration that they are co-sharer of the plots in dispute as well as for partition of their 1/2 share, which was registered as Suit No.38 of 1984-85. Trial Court (Sub- Divisional Officer, Pooranpur) vide judgment and decree dated 27.9.1990 decreed the aforementioned suit filed by respondent nos. 4 & 5. Against the judgment dated 27.9.1990, passed by the trial Court petitioner's father (Pothi Ram) filed an appeal under Section 331 of U.P.Z.A. and L.R. Act, which was registered as Appeal No. 10/ 09 of 1990. The aforementioned appeal was dismissed for non prosecution on 22.4.1991. The restoration/ delay condonation application dated 11.9.1991 against the order dated 22.4.1991 was also dismissed for non prosecution on 21.2.2002. On 8.10.2002, again restoration/ delay condonation application was filed on behalf of petitioners against the order dared 21.2.2002. The aforementioned restoration application dated 8.10.2002 was rejected by respondent no.2/ Additional Commissioner vide order dated 3.5.2011. Petitioners challenged the order dated 3.5.2011 through revision under Section 333 of U.P.Z.A. and L.R. Act before Board of Revenue, which was registered as Revision No. 56 of 2011. The aforementioned revision was admitted and interim order to maintain status quo was passed but later on the revision was dismissed as withdrawn vide order dated 20.3.2013 with liberty to file review application before the Commissioner. The review application/ delay condonation application dated 10/11.10.2013 was rejected by respondent no.2/ Additional Commissioner vide order dated 11.2.2014. The aforementioned revision was admitted and interim order to maintain status quo was passed but later on the revision was dismissed as withdrawn vide order dated 20.3.2013 with liberty to file review application before the Commissioner. The review application/ delay condonation application dated 10/11.10.2013 was rejected by respondent no.2/ Additional Commissioner vide order dated 11.2.2014. Petitioners challenged the order dated 11.2.2014 through Revision No. 38 of 2013-14 before the Board of Revenue at Allahabad, which was dismissed vide order dated 26.12.2017. Petitioners challenged the orders dated 3.5.2011, 11.2.2014 & 26.12.2017 before this Court through Writ B No. 4302 of 2018, which was dismissed vide order dated 4.7.2018. Petitioners also filed a Writ B No. 296 of 2019 before this Court against the order dated 11.2.2014, which was dismissed by this Court vide order dated 13.2.2019. In view of the finality attached to the judgment and decree of the trial Court dated 27.9.1990 for declaration as well as partition, the Lekhpal has prepared the kurra/ report dated 24.2.2015, which was confirmed by respondent no.3/ Sub Divisional Officer vide order dated 24.4.2018.9. This Court in the recent judgment dated 10.8.2023 passed in Sudheer Kumar Jain (Supra) has followed the ratio of law laid down in Rakesh Kumar (Supra) and held that Collector or Additional Collector have no jurisdiction to pass the order in the proceeding under Section 157-AA/ 167 of U.P.Z.A. and L.R. Act vesting the land in State. Petitioners challenged the order dated 24.4.2018 through revision before. This Court in the recent judgment dated 10.8.2023 passed in Sudheer Kumar Jain (Supra) has followed the ratio of law laid down in Rakesh Kumar (Supra) and held that Collector or Additional Collector have no jurisdiction to pass the order in the proceeding under Section 157-AA/ 167 of U.P.Z.A. and L.R. Act vesting the land in State. Commissioner, which was registered as Case No.01640/2018, Computerized Case No.C201812000001640. The aforementioned revision was dismissed vide order dated 24.05.2023, hence this writ petition on behalf of petitioners challenging the impugned orders dated 24.4.2018 and 24.5.2023. 4. Counsel for the petitioners submitted that suit for declaration as well as partition has been filed at the instance of the contesting respondents in arbitrary manner, which has been decreed without considering the case of the petitioners in accordance with law. 4. Counsel for the petitioners submitted that suit for declaration as well as partition has been filed at the instance of the contesting respondents in arbitrary manner, which has been decreed without considering the case of the petitioners in accordance with law. He further submitted that provisions of U.P.Z.A. and L.R. Act/ Rules as well as U.P. Revenue Code, 2006 / Rules, 2016 specifically provides proper opportunity of hearing as well as right of filing objection to the parties against the kurra but in the instant matter proper opportunity of hearing has not been afforded to the petitioners against the Kurrra/ map/ report dated 24.2.2015, as such, the impugned orders are wholly illegal and liable to be quashed. He further submitted that long possession of the parties has not been taken into consideration while preparing the kurra/ report dated 24.2.2015, as such, fresh kurra is to be prepared in accordance with the provisions of the Act/ Code /Rules. 5. On the other hand Mr. Madhu Ranjan Pandey, learned Counsel for respondent Nos. 4 to 7 submitted that suit for declaration as well as partition filed at the instance of the contesting respondents has been decreed vide judgment and decree dated 27.9.1990, which has attained finality. He further submitted that two writ petitions filed by petitioners have been dismissed by this Court confirming the orders passed in the appellate proceeding, as such, petitioners cannot argue about the finality attached to the judgment and decree passed by trial Court decreeing the suit for declaration/ partition. He further submitted that full opportunity has been afforded to the petitioners against the kurra/ report/ map dated 24.2.2015, as such, petitioners cannot argue that petitioners were not afforded opportunity against the kurra prepared by the Lekhpal. He further placed the findings of fact recorded by Sub Divisional Officer while confirming the kurra dated 24.2.2015 in order to demonstrate that petitioners have filed objection against the Kurra, which has been taken into consideration while passing the impugned order dated 24.4.2018. He further placed the findings of fact recorded by Sub Divisional Officer while confirming the kurra dated 24.2.2015 in order to demonstrate that petitioners have filed objection against the Kurra, which has been taken into consideration while passing the impugned order dated 24.4.2018. He further submitted that final decree has been prepared by the Court concerned and in pursuance of the final decree parwana dakhal has been issued accordingly possession has been also delivered to the parties according to the confirmed kurra but petitioners in order to reopen the proceedings which continued for about 38 years due to the dilatory tactics adopted by the petitioners, filed the instant petitions, hence writ petition filed by the petitioners is liable to be dismissed with heavy cost as petitioners have concealed material facts in the writ petition. 6. I have considered the argument advanced by learned counsel for the parties and perused the records. 7. There is no dispute about the fact that suit for declaration for co-tenurial right as well as for partition of 1/2 share filed at the instance of private respondents, under Section 229B/ 176 of U.P.Z.A. and L.R. Act has been decreed vide judgement dated 27.9.1990, which has attained finality. There is also no dispute about the fact that objection filed on behalf of petitioners against the Kurra has been rejected confirming the Kurra submitted in the proceedings. There is also no dispute about the fact that revision filed by petitioners has been also dismissed. 8. In order to appreciate the controversy involved in the matter, the perusal of Rule 131 of U.P.Z.A. and L.R. Rules, 1952 as well as Rule 109 of U.P. Revenue Code Rules, 2016 will be necessary, which are as under:- Rule 131 of U.P.Z.A. & L.R. Rules, 1952 131. 8. In order to appreciate the controversy involved in the matter, the perusal of Rule 131 of U.P.Z.A. and L.R. Rules, 1952 as well as Rule 109 of U.P. Revenue Code Rules, 2016 will be necessary, which are as under:- Rule 131 of U.P.Z.A. & L.R. Rules, 1952 131. (1) In making partition of a holding into two or more portions the following principles shall be observed : (a) The valuation of the portion allotted to each party shall be proportionate to his share in the holding; (b) The portion allotted to each party shall be as compact as possible; (c) As far as passible no party shall be given all the inferior or all the superior classes of land; (d) As far as possible existing field shall not be split up; (e) Plots which are in the separate possession of a tenure-holder shall, as far as possible be allotted to such tenure-holder if they are not in excess of his share; (2) The land revenue payable by each person shall bear the same proportion to the total land revenue as the valuation of the share bears to the total valuation of the holding. Rule 109 of U.P. Revenue Code Rules, 2016 109. Preliminary and Final decrees (Section 117).- (1) If the plaint referred to in Rule 107 or Rule 108 is in order, it shall be registered as a suit and the defendants shall be called upon to file their written statements. The suit shall then be decided according to the provisions of the Code of Civil Procedure, 1908. (2) Before making a division the court shall- (a) determine separately the share of the plaintiff and each of the other co-tenure holders; (b) record which, if any, of the co-tenure holders wish to remain joint; and (c) make valuation of the holding (or holdings) in accordance with the circle rate fixed by the Collector applicable to each plot in the holding. (3) If the suit is decreed, the Court shall pass a preliminary decree declaring the share of the plaintiff. (4) After the preparation of preliminary decree the Sub- Divisional Officer shall get the Kurra prepared through the Lekhpal. (3) If the suit is decreed, the Court shall pass a preliminary decree declaring the share of the plaintiff. (4) After the preparation of preliminary decree the Sub- Divisional Officer shall get the Kurra prepared through the Lekhpal. (5) The Lekhpal shall submit the Kurra report within a period of one month from the date of receiving the order in this regard and at the time of preparation of Kurra he shall observe the following principles- (a) the plot or plots shall be allotted to each party in proportionate to his share in the holding; (b) the portion allotted to each party shall be as compact as possible; (c) as far as possible no party shall be given all the inferior or all the superior classes of land; (d) as far as possible existing fields shall not be split up; (e) Plots which are in the separate possession of a tenure holder shall, as far as possible, be allotted to such tenure holder if they are not in access of his share; (f) If the plot or any part thereof is of commercial value or is adjacent to road, abadi or any other land of commercial value, the same shall be allotted to each tenure holder proportionately and in the case of second condition the same shall be allotted proportionately adjacent to road, abadi or other land of commercial value; and (g) If the co-tenure holders are in separate possession on the basis of mutual consent or family settlement, the Kurra shall, as far as possible, be fixed accordingly. (6) When the report regarding Kurra is submitted by the Lekhpal, the objection shall be invited thereon and thereafter the appropriate order shall be passed by the Sub-Divisional Officer after affording opportunity of hearing to the parties and considering the objection, if any, filed against the report submitted by the Lekhpal. (7) If the report and Kurra is confirmed by the Sub- Divisional Officer, the final decree shall follow it. (8) At the stage of the final decree, the Court shall- (a) Separate the share of the plaintiff from that of the defendant by metes and bounds. (b) Place on record a map showing in different colours the properties given to plaintiff as distinct from those given to the defendant. (c) Apportion the land revenue payable by the parties. (d) Direct the record-of-rights and map to be corrected accordingly. (b) Place on record a map showing in different colours the properties given to plaintiff as distinct from those given to the defendant. (c) Apportion the land revenue payable by the parties. (d) Direct the record-of-rights and map to be corrected accordingly. (9) If, for adjusting the equities between the parties, payment of compensation regarding trees, wells or other improvements becomes necessary, the revenue court concerned may also pass necessary orders at the stage of final decree. (10) The Sub-Divisional Officer shall make an endeavour to decide the suit within the period of six months and if the suit is not decided within such period, the reason shall be recorded." 9. The perusal of the aforementioned provisions demonstrates that the right to file objection as well as opportunity of hearing to the parties is mandatory before confirming the Kurra submitted by Lekhpal. 10. The perusal of the aforementioned provisions demonstrates that the right to file objection as well as opportunity of hearing to the parties is mandatory before confirming the Kurra submitted by Lekhpal. 10. Perusal of finding recorded by Sub-Divisional Officer while passing the impugned order dated 24.4.2018 will also necessary, which is as under: ^^U;k;ky;% miftykf/kdkjh e.My% cjsyh] tuin% ihyhHkhr] rglhy% iwjuiqj okn la[;k %& RST/04958/2017 daI;wVjhd`r okn la[;k %& T201712560304958 fodze flag cuke & varxZr /kkjk %& 229¼[k½] vf/kfu;e %& m0iz0t0fo0Hkw0 O;0 vf/kfu;e] 1950 fnukad&24-04-2018 vkt ;g i=koyh vkns'kkFkZ izLrqr gqbZA oknh ds vf/koDrk }kjk izLrqr fyf[kr cgl o i=koyh dk voyksdu fd;kA i=koyh ds voyksdu ls fofnr gksrk gS fd iz'uxr okn /kkjk 229 ch@176 t0fo0vf/k0 ds vUrxZr thou yky] fodze flag o xaxkjke }kjk iksFkhjke iq= ykyrk izlkn vkfn dks izfroknh cukrs gq;s fnukad 01-08-1985 dks ;ksftr fd;k x;kA okn i= esa oknhx.kksa }kjk xzke :nziqj dh Hkwfe xkVk la[;k 53 jdok 3-92 ,0 xkVk la0 120 jdok 0-95 ,oa xkVk la0 215 jdok 2-74 ,0 o xzke yksgiqjk dh Hkwfe xkVk la0 84 jdok 093 ,0 dqy 04 fdrk jdok 8-54 ,0 Hkwfe ij nkok izLrqr fd;k x;kA mijksDr okn esa rRdkyhu ijxukf/kdkjh egksn; ds vkns'k fnukad 27-09-1990 ds }kjk xzke :nziqj dh Hkwfe xkVk la[;k 53 jdok 3-92,0 xkVk la0 120 jdok 0-95 ,o xkVk la0 215 jdok 2-74 ,0 o xzke yksgiqjk dh Hkwfe xkVk la0 84 jdok 0-93 ,0 Hkwfe esa oknhx.k thou yky] fodze flag o xaxkjke iq=x.k ckydju fuoklh xzke VksMjiqj ds lkFk crkSj lg[kkrsnkj ladze.kh; Hkwfe/kj uUnfd'kksj e`rd ds LFkku ij crkSj okfjl ntZ djus ds vkns'k ikfjr fd;s x;s rFkk fookfnr Hkwfe esa oknhx.k dk 1@2 Hkkx o izfroknh iksFkhjke dk fookfnr Hkwfe esa 1@2 Hkkx ?kksf"kr fd;k x;k rFkk izkjfEHkd fMdzh cuk;h x;hA vkns'k fnukad 27-09-1990 ds fo:) izfroknhx.kksa }kjk ek0 vij vk;qDr cjsyh e.My cjsyh ds U;k;ky; esa vihy thou yky vkfn vkfn iksFkhjke vkfn ;ksftr dh x;h tks vne iSjoh esa fnukad 22-04-1991 dks fujLr gks x;hA ftlds fo:) iquZLFkkiuk izkFkZuk ij ;ksftr gqvk tks fnukad 21-02-2002 dks [kkfjt dj fn;k x;kA ftlds ckn iqu% iquZLFkkiuk izkFkZuk i= ;ksftr fd;k x;kA mDr vihy fnukad 03-05-2011 dks fujLr gks pqdh gSA ftlds mijkUr bl U;k;ky; ls fnukad 04-06-2011 ds vkns'k fnukad 27-09-1990 dk jktLo vfHkys[kksa esa veynjken gsrq ijokuk tkjh fd;k x;k rFkk fnukad 06-06-2011 dks jktLo vfHkys[kksa esa vkns'k fnukad 27-09-1990 dk veynjken gqvkA rnuqlkj gYdk ys[kiky dks dqjkZ nkf[ky djus gsrq lEeu fuxZr fd;s x;s rFkk gYdk ys[kiky }kjk fnukad 24-02-2015 dks U;k;ky; esa mifLFkr gksdj dqjsZ o uD'kk utjh nkf[ky dj vius l'kiFk c;ku vafdr djk;s x;sA vius c;kuksa esa gYdk ys[kiky }kjk vafdr djk;k gS fd eSaus LFky ij tkdj oknh thou yky] fodze flag o xaxkjke iq=x.k ckydjke fuoklh xzke VksaMjiqj dks dqjkZ ua0&1 xzke :nziqj dh xkVk la0 53@1 jdok 0-793 gs0 xkVk la0 120@1 jdok 0-192 gs0 xkVk la0 215@1 jdok 0-554 gs0 dqy 03 fdrk jdok 1-539 gs0 yxku 19-25 :0 dqjkZ ua0&1 xzke yksgjiqj dh xkVk la0 84@1 jdok 0-188 gs0 yxku 2-30 :0 dqjkZ ua0&1 dks utjh uD'kk esa yky jax ls n'kkZ;k x;k gS] tks thou yky] fodze flag o xaxkjke iq=x.k ckydjke fuoklh xzke VksaMjiqj dks fn;k x;k gSA dqjkZ ua0&2 xzke :nziqj dh xkVk la0 53@2 jdok 0-793 gs0 xkVk la0 120@2 jdok 0-192 gs0 xkVk la0 215@2 jdok 0-555 gs0 dqy 03 fdrk jdok 1-540 gs0 yxku 19-25 :0 lUrjke] dju flag] v;ks/;k izlkn iq=x.k iksFkhjke dqjkZ ua0&2 utjh uD'kk esa ihys jax ls n'kkZ;k x;k gSA xzke yksgjiqj esa dqjkZ ua0&2 dh xkVk la0 84@2 jdok 0-188 gs0 yxku 2-35 :0 dqjkZ ua0&2 dks utjh uD'kk esa ihys jax ls n'kkZ;k x;k gS tks lUrjke] dju flag o v;ks/;k izlkn iq=x.k iksFkhjke fuoklh xzke :nziqj dks fn;k x;k gSA rnuqlkj izfroknhx.kksa dks lEeu fuxZr fd;s x;sA tks fu"iknuksaijkUr i=koyh ij miyC/k gSA izfroknhx.kksa dks fnukad 29-04-2015@13-05-2015 dks bl vk'k; dh vkifRr izLrqr dh gS fd izfroknhx.kksa dk fookfnr Hkwfe ij dCtk e`rd [kkrsnkj uUnfd'kksj iq= ckcwjke dh e`R;q ds ckn esa pyk vk jgk gSA oknhx.kksa }kjk izfroknhx.kksa ds fo:) dHkh Hkh csn[kyh dh dk;Zokgh ugha dh x;hA izfroknh la[;k&1 ds okfjlkuksa us ,d fuxjkuh vij vk;qDr egksn; ds vkns'k ds fo:) ek0 jktLo ifj"kn bykgkckn esa ;ksftr dh gS tks fopkjk/khu gSA oknhx.kksa dk cxSj dCts ds /kkjk 176 tsM0,0,y0vkj0,DV ds vUrxZr okn iks"k.kh; ugha gSA izfroknhx.kksa dh vkifRr ds fo:) ,d izfr vkifRr fnukad 22-07-2015 oknhx.kksa dh vksj ls izLrqr dh x;h] ftlesa oknhx.kksa }kjk izLrqr vkifRr dk fojks/k fd;k gSA esjs }kjk i=koyh dk voyksdu fd;k x;k rFkk oknhx.kksa }kjk izLrqr fyf[kr cgl dk voyksdu fd;k x;kA i=koyh ds voyksdu ls fofnr gksrk gS fd izfroknhx.kksa }kjk ek0 jktLo ifj"kn m0iz0 bykgkckn ds le{k izLrqr fuxjkuh la[;k 38@2013&14 lUrjke vkfn cuke vij vk;qDr cjsyh e.My cjsyh vkfn] vkns'k fnukad 26-12-2017 dks fujLr dh tk pqdh gSA bl izdkj mDr okn esa gYdk ys[kiky }kjk nkf[ky fd;s x;s dqjksZ dh iqf"V fd;s tkus esa dksbZ fof/kd =qfV izrhr ugha gksrh gS rFkk gYdk ys[kiky }kjk nkf[ky utjh uD'kk o dqjsZ Lohd`r fd;s tkus ;ksX; gSaA mijksDr foospuk ds ifjizs{; esa gYdk ys[kiky }kjk nkf[ky dqjsZ o utjh uD'kk fnukad 24-02-2015 dh iqf"V dh tkrh gSA oknh }kjk tujy LVkEi nkf[ky djus ij vfUre fMdzh cuk;h tk;A i=koyh ckn vko';d dk;Zokgh nkf[ky nQrj gksA fnukad & vizSy 24] 2018 g0 vi0 24-04-18 ¼'kf'k Hkw"k.k jk;½ ijxukf/kdkjh iwjuiqjA** 11. Perusal of the impugned order dated 24.4.2018 passed by the Sub-Divisional Magistrate fully demonstrates that the objection were invited against the Kurra submitted by the Lekhpal dated 24.2.2015 and the petitioners have filed their objection also against the Kurra. Lekhpal has also appeared before the Sub-Divisional Officer and proved his report / map/ Kurra submitted in the proceeding, as such, Sub- Divisional Officer confirmed the Kurra submitted by the Lekhpal dated 24.2.2015 and ordered for preparation of final decree. The finding of fact recorded by the Sub-Divisional Officer fully demonstrates that there is full compliance of the provisions contained under U.P.Z.A. & L.R. Act as well as the Rules framed thereunder for confirming the Kurra submitted in the proceedings. The judgment passed by the Sub-Divisional Officer dated 24.4.2018 was maintained in revision vide order dated 24.5.2023. 12. In view of the finding of fact recorded by the Sub- Divisional Officer, Tahsil- Pooranpur, District- Pilibhit as maintained by the Additional Commissioner (Administration), Bareilly Division, Bareilly in revision, no interference is required against the impugned orders. 13. The writ petition is accordingly, dismissed.