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2023 DIGILAW 2659 (ALL)

Dayaram v. State of U. P.

2023-11-24

SYED QAMAR HASAN RIZVI

body2023
JUDGMENT : 1. Heard Shri R.C. Singh, learned Senior Advocate assisted by Shri Rituvendra Singh Nagvanshi, learned counsel for the petitioner; Shri Shiv Ram Singh, learned counsel appearing on behalf of the respondent no. 6; Shri Awadesh Kumar Patel, learned Standing Counsel for the State-respondents no. 1 to 4; Shri Bhupendra Kumar Tripathi, learned counsel for the Gram Sabha-respondent no. 5 and perused the pleadings available on record. 2. With the consent of the learned counsel for the parties, this Court proceeds to finally decide the present writ petition at the admission stage itself. 3. The relevant facts in nutshell that are necessary for the better appreciation of the case; as narrated by the petitioner in the instant writ petition, are that the petitioner and the contesting respondent no.6 are real brothers and claimed half (1/2) share each in the jointly possessed ancestral property / holding with plot nos. 756/0.247, 742/0.130, 758/0.570 and 760/0.117 situated at village Saraiharkhu, Pargana Rari, Tehsil Badlapur, District Jaunpur. 4. The petitioner filed a partition Suit under section 176 / 177 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 seeking division of the holdings, in the Court of learned Sub Divisional Officer, Tehsil Badlapur, District Jaunpur (respondent no.4). The said suit was registered as T2016143602908 (Dayaram Versus Bharat). 5. In the aforesaid Suit a preliminary decree was passed on 08.03.2016 by the learned Court of Sub Divisional Officer, Tehsil Badlapur, District Jaunpur, whereby the claim of the petitioner and respondent no.6 to the half (½) share each, in the property in suit was accepted / declared. Accordingly, the Lekhpal concerned was directed to prepare the Kurrafaat on the basis of possession and documents. 6. In pursuance of the aforesaid order dated 08.03.2016, the Lekhpal concerned submitted a detailed kurrafaat report on 17.04.2016 and thereafter his statement was recorded on 05.05.2016. As per the said kurrafaat dated 17.04.2016, plot no. 742 Sa / 0.0650 and plot no. 756 Sa / 0.2105 came to be allocated / earmarked in favour of the respondent no.6 while plot no. 742 Sa / 0.650, plot no. 756 Sa / 0.0365, 758 / 0.057 and plot no. 760 / 0.117 in favour of the petitioner. 7. Dissatisfied with the aforesaid kurrafaat preapred by the Lekphal, the petitioner filed an objection on 10.05.2016, before the learned Sub Divisional Officer (respondent no. 742 Sa / 0.650, plot no. 756 Sa / 0.0365, 758 / 0.057 and plot no. 760 / 0.117 in favour of the petitioner. 7. Dissatisfied with the aforesaid kurrafaat preapred by the Lekphal, the petitioner filed an objection on 10.05.2016, before the learned Sub Divisional Officer (respondent no. 4), inter alia praying for cancellation of the said kurrafaat dated 17.04.2016 and for the preparation of a fresh kurrafaat by other Lekhpal. 8. The learned Sub-Divisional Officer (respondent no.4) taking into consideration the objections raised by the petitioner and the factual aspect of the case and vide order dated 13.05.2016 confirmed the kurrafaat dated 17.04.2016 and passed the final decree. Thereafter, a spot-memo was submitted on 23.05.2016 by the Revenue Inspector, to the effect that the Revenue Team along with the Police force, carried out the measurement / demarcation on the basis of the aforesaid kurrafaat dated 17.04.2016. 9. Assailing the aforesaid order dated 13.05.2016 passed by the learned Court of Sub-Divisional Officer (respondent no.4), the petitioner filed an Appeal, under Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 before the Court of learned Commissioner, Varanasi Division, Varanasi. The said appeal having Appeal No. 351 of 2016 was dismissed vide order dated 31.05.2017, passed by the learned Court of Additional Commissioner (1st), Varanasi Division, Varanasi. 10. Thereafter, the petitioner preferred a Second Appeal under Section 331 (4) of U.P. Zamindari Abolition and Land Reforms Act, 1950 before the learned Board of Revenue, U.P., at Allahabad (respondent no.2) challenging the aforesaid orders dated 13.05.2016 and 31.05.2017. The said Appeal was registered as Case No. SA/1287/2017/Jaunpur (Computerised case No. AL20171436001287) titled as Daya Ram versus Bharat Kumar and others. The learned Board of Revenue (respondent no.2) admitted the aforesaid Second Appeal and granted an interim relief in favour of the petitioner vide order dated 26.04.2017. 11. The aforesaid Second Appeal was also dismissed vide a detailed order dated 19.07.2023 passed by the learned Board of Revenue (respondent no.2). 12. The learned Board of Revenue (respondent no.2) admitted the aforesaid Second Appeal and granted an interim relief in favour of the petitioner vide order dated 26.04.2017. 11. The aforesaid Second Appeal was also dismissed vide a detailed order dated 19.07.2023 passed by the learned Board of Revenue (respondent no.2). 12. Being aggrieved by the said order dated 19.07.2023 passed by the learned Board of Revenue (respondent no.2) in the Second Appeal, the petitioner preferred the instant writ petition, inter alia, praying for the following reliefs : “i. issue a writ, order or direction in the nature of certiorari for quashing the impugned order dated 19.7.2023 (Annexure No.11) passed by respondent no.2 in Case No. S.A./1287/2017 /Jaunpur Computerized No.-AL20171436001287 (Dayaram Vs. Bharat Kumar and others) under Section 333 of the U.P.Z.A. and L.R. Act 1950, order dated 31.5.2017 (Annexure No.8) passed by Respondent no.3 in Appeal No. 351 of 2016 (Dayaram Vs. Bharat Kumar etc) under Section 331 of the U.P.Z.A. and L.R. Act 1950 and order dated 13.5.2016 (Annexure No.7) passed by Respondent no.4 in partition suit bearing No. T2016143602908 (Dayaram Vs. Bharat) under Section 176 U.P.Z.A. and L.R. Act 1950, Arazi situate in village Saraiharkhu Pargana Rari, Tehsil Badlapur, District Jaunpur. ii. issue a writ, order or direction in the nature of mandamus interdicting the respondent no.6 from interfering into peaceful possession of the petitioners over the property in dispute and creating third party interest. iii. issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. iv. award the cost of the present writ petition to the petitioners.” 13. The contention of Shri R.C. Singh, learned Senior Advocate appearing for the petitioner is that the entire proceeding of division of holdings in the instant case is based on the kurrafaat report dated 17.04.2016, by means of which the petitioner was allocated his share i.e. half (1/2) of the holding, in four plots, while the rest half (1/2) of the holding being the share of respondent no.6 has been adjusted in only two plots. Further, the major part of the plot no. 756 which lies in front of the petitioner's house, has been allotted to the respondent no.6 and that only an insignificant and small part of the same has been allotted to the petitioner. Further, the major part of the plot no. 756 which lies in front of the petitioner's house, has been allotted to the respondent no.6 and that only an insignificant and small part of the same has been allotted to the petitioner. As such, this allocation of the share being inequitable is violative of Rules 131 of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 which provides that the portion allotted to each party shall be as compact as possible and no party shall be given all the inferior or all the superior classes of land. 14. Per contra, Shri Shiv Ram Singh, learned counsel for the caveator/ respondent no. 6, by refuting the contentions of the learned counsel for the petitioner as baseless and without any substance, submits that the partition of the holdings in question has been made perfectly on the basis of the valuation of the land, feasibility and possession on the spot. As such, the same is legal and justified. Further, the objections raised by the petitioner against the kurrafaat was duly considered by the learned Sub Divisional Officer (respondent no.4) and the revenue team prepared the spot-memo after measurements / demarcation on the spot on 23.05.2016 and, thereafter, the spot-memo was submitted before the learned Sub Divisional Officer (respondent no.4) in the presence of the petitioners. It has also been submitted on behalf of the respondent no.6 that the petitioner is in occupation of the better part of the holding in question than the answering respondent no.6 and as such he wants to prolong the proceeding by playing delaying tactics and does not want the matter to be finally settled. 15. Shri Awadesh Kumar Patel, learned Standing Counsel appearing for the State-respondents no. 1 to 4 raised preliminary objection regarding the maintainability of the present writ petition by contending that the petitioner in the present writ petition has basically disputed the findings of fact which have been affirmed by the first and the second appellate courts and as such the concurrent findings of fact cannot be interfered by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. In support of his contention, the learned Standing Counsel has relied upon the judgment passed by the Hon’ble Supreme Court of India in the case of State of Jharkhand and others Versus Linde India Limited and another reported in 2022 SCC OnLine SC 1660; Chandrika (Dead) by LRS. Versus Sudama (Dead) Thr. LRS. and others reported in (2019) 5 SCC 790 and Bansraj Versus Ram Naresh and another, reported in (2020) 5 ADJ 10 . 16. The learned Standing Counsel further submitted that there is no infirmity or irregularity in the impugned orders passed by the learned trial court as well as the learned appellate courts. Further, the courts below, at all stages afforded full opportunity of hearing to the parties and decided the matter by passing a detailed and reasoned orders, after taking into consideration all the grounds pleaded by the parties. 17. Having heard the rival contentions raised by the learned counsels for the parties and perused the material available on record; the moot issue for consideration, at the first instance, before this Court is that as to whether in the present case, the concurrent findings of fact recorded by the three Revenue Courts below warrants any interference by this Court in exercise of its powers, qua, Writ jurisdiction under Article 226 of the Constitution of India. 18. Before entering into the merits of the case, it would be apt to consider the legal context of “concurrent findings of fact” and reiterate the law in relation to the extent of interference by the Writ Courts in concurrent findings of the fact under Article 226 of the Constitution. 19. The Hon’ble Supreme Court in the case of State of Rajasthan Versus Shiv Dayal reported in (2019) 8 SCC 637 at page 639 has succinctly described the expression “concurrent findings of fact”, which is well known in the legal parlance, in the following manner, “15. It is a trite law that in order to record any finding on the facts, the trial court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties. Similarly, it is also a trite law that the appellate court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the trial court or reverse it. Similarly, it is also a trite law that the appellate court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the trial court or reverse it. If the appellate court affirms the finding, it is called “concurrent finding of fact” whereas if the finding is reversed, it is called “reversing finding.”” 20. Further, it is also the settled legal preposition that the first appellate court is the final court of fact, as has been dealt with in detail by the Hon’ble Supreme Court in the cases of Gurvachan Kaur and others Versus Salikram (Dead) through LRS. reported in (2010) 15 SCC 530 and Santosh Hazari Versus Purushottam Tiwari (Deceased) by LRS. reported in (2001) 3 SCC 179 . 21. Consequently, it can be affirmatively alluded that the concurrent findings of fact are to be considered as settled facts of the case and the High Court should ordinarily restrain itself from interfering with the concurrent findings of fact. The said restrain is on a much higher footing in cases where the High Court is not the appellate court, rather, it is exercising its Writ jurisdiction under Article 226 of the Constitution of India. In this regard, the Hon’ble Supreme Court in the case of Abdul Razak (D) through LRS. and others Versus Mangesh Rajaram Wagle and others reported in (2010) 2 SCC 432 as reiterated in the case of State of Jharkhand and others Versus Linde India Limited and another (Supra) has held that the High Court in exercise of its Writ jurisdiction is not an appellate court against the findings recorded on appreciation of facts and the evidence on record. Further, in the case Chandrika (Dead) by LRS. Versus Sudama (Dead) Thr. LRS. and others (Supra) the Hon’ble Apex Court has been pleased to observe that the concurrent findings of fact is not only binding on the High Court but is also binding upon the Hon’ble Supreme Court. For ready reference, extract of paragraph no. 12 of the aforesaid judgment in extracted hereinbelow, “12. In our considered opinion, the finding impugned in this appeal being concurrent finding of fact and was rightly held by the High Court as binding on the High Court in its writ jurisdiction, it is also binding on this Court, calling for no interference therein…” 22. 12 of the aforesaid judgment in extracted hereinbelow, “12. In our considered opinion, the finding impugned in this appeal being concurrent finding of fact and was rightly held by the High Court as binding on the High Court in its writ jurisdiction, it is also binding on this Court, calling for no interference therein…” 22. It may also be elucidated that the Hon’ble Apex Court in the case of Union Bank of India Versus Chandrakant Gordhandas Shah reported in (1994) 6 SCC 271 at page 274 has briefly explained the reason for non-interference with the concurrent findings of fact by observing that it is the trial court and the appellate court which is entrusted with the duty of recording the findings on questions of fact and it is not proper for the Writ courts to interfere with or disturb those findings. For a ready reference, extract of paragraph no. 11of the said judgment is quoted hereinbelow, “11. It is trite that if the trial court and the appellate court, who are entrusted with the duty of investigating into questions of fact record concurrent findings thereon on a proper discussion and appreciation of the materials placed before them, the High Court should not interfere with or disturb those findings while sitting in judgment over the same in its writ jurisdiction…” 23. However, it would not be place to discuss the another aspect that the High Court still has the discretionary power to interfere in the concurrent findings of fact while exercising its powers under Article 226 of the Constitution of India, but the discretion must be exercised on sound judicial principles particularly, where the concurrent findings of fact is perverse in law in the sense that no reasonable person properly instructed in law should have come to such a finding or there is misdirection in law or a view on fact has been taken in the teeth of preponderance of evidence or the finding is not based on any material evidence or it has resulted in manifest injustice. The Hon’ble Apex Court in the case of Babubhai Muljibhai Patel Versus Nandlal Khodidas Barot, reported in (1974) 2 SCC 706 , at page 715, has observed that, “10. The Hon’ble Apex Court in the case of Babubhai Muljibhai Patel Versus Nandlal Khodidas Barot, reported in (1974) 2 SCC 706 , at page 715, has observed that, “10. … The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 of the Constitution merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition…. If, however, on consideration of the nature of the controversy, the High Court decides … that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by the High Court in this respect.” 24. Furthermore, in order to decide whether a particular case requires the High Court to enter into a disputed question of fact depends upon the facts and circumstances of that case, as this ordinary restrain on the interference on concurrent findings of fact should not be put in a routine and mechanical manner in the system of administration of justice. The Hon’ble Supreme Court by placing reliance upon the judgment passed in the case of Smt. Ram Dev Versus 8th Addl. District Judge, Kanpur reported in 1999 (1) ARC 173 has categorically held in the case of Gurvachan Kaur (Supra) that, “13. … It is the duty of the Court to look into the evidence if the justice so requires and where material evidence has been totally ignored and the finding of the fact is based upon consideration of evidence led by one party only, the Court has power to set aside the finding of fact recorded by the court below.” 25. … It is the duty of the Court to look into the evidence if the justice so requires and where material evidence has been totally ignored and the finding of the fact is based upon consideration of evidence led by one party only, the Court has power to set aside the finding of fact recorded by the court below.” 25. Further, for the purposes of interfering in the concurrent findings of fact, the question of perversity of an order passed by an authority must be determined by considering whether the said order is not supported by the evidence brought on record or it is against the law or it suffers from vice of procedural irregularity, as has been held by the Hon'ble Supreme Court in the case of Gaya Din (dead) thr. L.Rs. Versus Hanuman Prasad (dead) thr. L.Rs. reported in 2001 (43) ALR 226 (SC). 26. In the instant case the findings recorded by the Sub Divisional Officer (respondent no.4) in respect of the shares and also with regard to the allotment of kurras, in favour of the parties, has been upheld by the first appellate court, i.e., the learned Court of Commissioner, Varanasi (respondent no. 3) and the learned Board of Revenue (respondent no.2) also concurred with the same in Second Appeal. 27. In view of the settled legal position on the subject of ‘concurrent findings of fact’, it has become imperative to determine as to whether the facts and circumstances of the present case warrants any interference by this Court in the concurrent findings of fact recorded by the Sub Divisional Officer (respondent no.4) as concurred by the Commissioner, Varanasi (respondent no. 3) in Appeal No. 351 of 2016 and also by the Board of Revenue, U.P. (respondent no.2) in Second Appeal bearing Case No. SA/1287/2017/Jaunpur. 28. From the perusal of the impugned order dated 13.05.2016 passed by the learned trial court, it is evident that the Sub-Divisional Officer (respondent no.4) approved the Kurrafaat and the coloured map dated 17.04.2016 as being prepared on the basis of possession and shares and, also recorded a categorical finding that an approach road as a khadanja marg is available to the parties. The first appellate court, i.e., the Court of Additional Commissioner (respondent no. 3) affirmed the findings of the trial court after a detailed discussion on the factual matrix of the case and also the correctness of the kurrafaat. The first appellate court, i.e., the Court of Additional Commissioner (respondent no. 3) affirmed the findings of the trial court after a detailed discussion on the factual matrix of the case and also the correctness of the kurrafaat. The extract of the relevant paragraph of the findings returned by the first Appellate Court while deciding the Appeal is quoted below : 29. The Second Appellate Court, i.e., the learned Board of Revenue (respondent no.2) decided the Second Appeal after framing the following substantial question of law. ^^D;k caVokjk okn esa mrj çns'k jktLo lafgrk 2006 dh fu;ekoyh ds lqlaxr çkfo/kkuksa dk /;ku j[kk x;k gS\** 30. The learned Board of Revenue (respondent no.2) while deciding the Second Appeal has dealt with the above quoted question of law formulated as substantial question in detail and has held that the provisions of Section 131(1) have been duly followed in the division of holdings in the present case. It has also categorically recorded a finding that the Courts below while deciding the suit for division of holdings under Section 176/177 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, have decided the same in terms the relevant provisions of law. 31. The learned Board of Revenue (respondent no.2) after taking into consideration the factual aspect of the case in detail and deciding the substantial question of law as formulated in the case, dismissed the said appeal by a detailed judgment and order dated 19.07.2023. The relevant paragraphs of the findings returned by the Second Appellate Court while deciding the said second appeal is quoted below : 32. In view of all that is discussed hereinabove, the findings recorded by all the three Revenue Courts below are concurrent, based on admissible evidence and reasoning. There is no perversity in the findings recorded by the courts below. Therefore, it cannot be said that the Courts below have ignored the law in arriving at their findings. 33. Accordingly, this Court finds no manifest error of law, perversity, illegality or procedural irregularity in the impugned orders and does not find any cogent reason that warrants interference by this Court with the concurrent findings recorded by the three Revenue Courts below while passing the impugned orders. 34. The writ petition is liable to be dismissed being devoid of merit and is hereby dismissed. No order as to cost.