JUDGMENT Chandra Kumar Rai, J. Heard Sri. S.N. Tripathi, learned counsel for the petitioners, Sri. B.N. Pathak, learned Standing Counsel for the State respondents and Mr. Sunil Kumar Singh, learned counsel for the respondent- Gaon Sabha. 2. Brief facts of the case are that petitioners filed a suit under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act, 1951 hereinafter referred to as U.P.Z.A. and L.R. Act stating that they were tenant of the plot in question since before the date of vesting according they became sirdar and continued in possession, as such, they acquired right under Section 180 of the U.P. Tenancy Act. The plaint case was also to the effect that petitioners were recorded as occupant in 1356 Fasli over plot in question and remained in cultivatory possession in 1359 fasli, as such, petitioners had acquired adhivasi right in respect to plot in question. Gaon Sabha filed a suit against the petitioners which was dismissed on 1.11.1965 with liberty to Gaon Sabha to file regular suit. Gaon Sabha also initiated a proceeding under Section 122-B of U.P.Z.A. and L.R. Act which was dropped. In suit under Section 229-B of U.P.Z.A. and L.R. Act, State of U.P. filed a written statement denying the plaint allegations with respect to right, title and interest of the petitioners. Trial Court/ Extra Officer/ Assistant Collector First Class, Faizabad vide judgment dated 31.3.1980 dismissed the plaintiff's suit. Petitioners filed an appeal before Commissioner against the judgment of Trial Court dated 31.3.1980 which was registered as appeal No. 360. The Additional Commissioner heard the aforementioned appeal and dismissed the same vide judgment dated 1.10.1981. Petitioners filed a second appeal before Board of Revenue, U.P. at Allahabad which was registered as second appeal No. 5 (z) of 1981-82. The learned member Board of Revenue U.P. at Allahabad has heard the second appeal and dismissed the same vide judgment dated 23.11.1990. Hence this writ petition on behalf of the petitioners for the following relief:- " Issue a writ in the nature of certiorari quashing order dated 23.11.1990 passed by respondent no.1, order dated 1.10.1981 passed by respondent no.2 and the order dated 31.3.1980 passed by respondent no.3 to the writ petition." 3. This Court has entertained the matter on 18.2.1991 and granted interim protection staying the dispossession of the petitioners from the land in dispute. This Court has entertained the matter on 18.2.1991 and granted interim protection staying the dispossession of the petitioners from the land in dispute. The interim order dated 18.2.1991 was further extended and continued vide subsequent order dated 16.4.1991. 4. No counter affidavit has been filed by State or Gaon Sabha even after expiry of more than 33 years hence there is no option except to decide the writ petition on the basis of averment made in the writ petition. 5. Counsel for the petitioners submitted that Gaon Sabha had filed the suit under Section 211-A of the U.P.Z.A. and L.R. Act against the petitioners which was dismissed on 1.11.1965 as well as proceeding initiated under Section 122- B of U.P.Z.A. and L.R. Act against the petitioners was dropped with liberty to Gaon Sabha to file regular suit but Gaon Sabha has not filed any suit against the petitioners in respect to the plot in question. He further submitted that petitioners were recorded tenant of the plot in question since before the date of vesting, as such, the claim of the petitioners cannot be rejected in any manner. He further submitted that petitioners were recorded as occupant over the plot in question in 1356 fasli and were recorded in cultivatory possession in 1359 fasli, as such, the petitioners became the adhivasi/ sirdar of the plot in question. He further submitted that oral evidence was also adduced by the petitioners before the Trial Court but Trial Court has decided the suit under Section 229-B of U.P.Z.A. and L.R Act in arbitrary and casual manner without discussing the evidence adduced by the parties in accordance with law. He further submitted that there is no limitation for filing suit under Section 229-B of U.P.Z.A. and L.R. Act, as such, the impugned orders passed by Trial Court, First Appellate Court and Second Appellate Court are wholly illegal and liable to be set aside. He further submitted that petitioners have prescribed their rights under Section 180 of the U.P. Tenancy Act but impugned orders have been passed without considering the provisions of law. He further submitted that petitioners have prescribed their rights under Section 180 of the U.P. Tenancy Act but impugned orders have been passed without considering the provisions of law. He further submitted that no evidence was adduced on behalf of the Gaon Sabha and State to rebut the evidence adduced by petitioners/ plaintiff in the suit under Section 229-B of U.P.Z.A. and L.R. Act, as such, the impugned judgments passed by Trial Court/ First Appellate Court/ Second Appellate Court are liable to be set aside. He further submitted that Board of Revenue has wrongly observed that land in dispute are different in 1356 fasli and 1359 fasli. He further placed the revenue entry of 1356-1359 fasli which is annexed as Annexure Nos. SA-1 and SA-2 in order to demonstrate that in 1356 fasli, the particular of all the 8 plots along with their respective area has been correctly mentioned but in 1359 fasli, the particular of last four plots was not correctly mentioned although the area of the last four plots has been mentioned same as in 1356 fasli which proves that there was clerical error in the khatauni of 1359 fasli. He further submitted that in view of the entry of the plot in question in 1356 fasli, 1359 fasli as well as in the subsequent years, the suit under Section 229- B of U.P.Z.A. and L.R. Act filed by petitioners cannot be dismissed in casual manner as the suit under Section 229-B of U.P.Z.A. and L.R. Act are suit of special character, as such, the same is to be decided/ adjudicated in proper manner. He submitted that impugned judgment passed by Trial Court, First Appellate Court and Second Appellate Court are liable to be set aside. He further placed reliance upon the following judgments of Hon'ble Apex Court as well as of this Court in support of his arguments:- (I) 1990 AIR (SC) 723 Hira Lal v. Gajjan, (ii) 1981 AIR (SC) 1005 Jagdeo Singh v. Mihi Lal, (iii) Laws SC 1989 (9) 29 Wali Mohammad v. Ram Surat, (iv) 1999 RD 285 (SC) Ram Harakh v. Hamid Ahmed Khan, (v) 1973 AIR (SC) 1329 Patiraji v. Mamta, (vi) 1964 RD 109 (F.B.) Gajadhar Singh v. Harnandan Singh (vii) 1967 RD 75 (D.B.) Anis Ahmad and Others v. State of U.P. and Others. 6. On the other hand, Mr. 6. On the other hand, Mr. B.N. Pathak, learned Standing Counsel for the State respondents submitted that concurrent finding of fact has been recorded by all the three Courts, as such, no interference is required against the impugned judgments. He further submitted that Trial Court has framed the issues and decided the suit under Section 229-B of U.P.Z.A. and L.R. Act which has been maintained in appeal as well as second appeal after considering the evidence on record. He further submitted that there is difference in the particular of plot number in the khasra and khatauni of 1359 fasli, as such, the claim of the petitioners was rightly negatived under the impugned judgments. He further submitted that petitioners have not taken any steps for correcting the entry of plot in dispute for 17 years, as such, suit under Section 229-B of U.P.Z.A. and L.R. Act filed by petitioners cannot be decreed. He further submitted that plot in dispute belongs to Gaon Sabha, as such, petitioners will not accrue any right in respect to the plot in question. 7. I have considered the arguments advanced by learned counsel for the parties and perused the records. 8. There is no dispute about the fact that suit under Section 211-A of U.P.Z.A. and L.R. Act filed by Gaon Sabha against the petitioners was dismissed by the Court concern on 1.11.1965. There is also no dispute about the fact that proceeding under Section 122-B of U.P.Z.A. and L.R. Act filed by Gaon Sabha against the petitioners was dropped with liberty to the Gaon Sabha to file a suit for declaration for establishing his right in respect to the plot in question but no suit for declaration was filed by Gaon Sabha/ State in respect to the plot in question. There is also no dispute about the fact that suit under Section 229-B of U.P.Z.A. and L.R. Act filed by petitioners has been dismissed by Trial Court and the judgment of Trial Court has been maintained by First Appellate Court as well as Second Appellate Court. 9. In order to appreciate the controversy involved in the matter, the issues which were framed by the Trial Court will be relevant for perusal which is as under:- 10. The one page judgment which was passed by the Trial Court for dismissing the suit of the plaintiff will be relevant for perusal which is as under:- 11. 9. In order to appreciate the controversy involved in the matter, the issues which were framed by the Trial Court will be relevant for perusal which is as under:- 10. The one page judgment which was passed by the Trial Court for dismissing the suit of the plaintiff will be relevant for perusal which is as under:- 11. The consideration of the issues which was made by the Trial Court fully demonstrate that there is no proper adjudication of the controversy by the Trial Court in view of the entry of 1356-1359 fasli of the plot in question. 12. The judgment of Trial Court dated 31.3.1980 has been maintained by Additional Commissioner in appeal as well as Board of Revenue in second appeal on the ground that petitioners have not taken any steps for considerable period for correction of revenue entry of the plot in question, as such, petitioners are not entitled to any relief in the suit under Section 229-B of U.P.Z.A. and L.R. Act. filed by them. 13. So far as the scope of suit under Section 229-B of U.P.Z.A. and L.R. Act as well as the limitation for filing the suit under Section 229-B of U.P.Z.A. and L.R. Act are concerned, this Court in the case reported in 2005 (99) RD 529 Pan Kumari v. Board of Revenue U.P. at Allahabad and Others has held that suit under Section 229-B of U.P.Z.A. and L.R. Act are suit of special character and there is no limitation for filing suit under Section 229-B of U.P.Z.A. and L.R. Act. Paragraph No.6 of the judgment rendered in Pan Kumari (Supra) will be relevant which is as under:- "6. Sri. R.C. Singh submits that the suit under Section 229-B was barred by limitation. In support of this contention he relies upon Section 341 of the U.P. Zamindari Abolition and Land Reforms Act, which provides that the Limitation Act would be applicable to proceedings under the U.P. Zamindari Abolition and Land Reforms Act and limitation in a suit for declaration would be governed by Article 137 of Schedule 1 of the Limitation Act as there is no period prescribed for such a suit under the U.P.Z.A. & L.R. Act. Section 341 itself provides that the provisions of certain Acts including the Limitation Act shall apply to the proceedings under the U.P. Z.A. & L. R. Act unless otherwise provided in the U.P.Z.A. & L.R. Act. Rule 338 of the U.P.Z.A. and L.R. Rules provides that the suits, applications and Ors. proceedings specified in Appendix III shall be instituted within the time specified therein for them respectively. Recourse to the provisions of the Limitation Act would be available only if there is no provision under Rules in respect of the period of limitation for the different classes of suits or proceedings mentioned therein. In Appendix III the period of limitation provided for different classes of suits has been given. As regards suits under Section 229-B column 4, which prescribes the period of limitation for different classes of suit says "none". It would therefore be treated that there is no limitation for filing a suit under Section 229-B. section 9 of the Civil Procedure Code provides that all suits of civil nature shall be instituted in the civil court except those, which have been accepted. A suit under Section 229-B falls within the excepted category and such suits even though they involve declaration are suits of a special character. Article 137 of the Limitation Act relied upon by Sri. Singh in any case is applicable only to applications and not to suits and therefore has no play. When the rule making authority has provided different periods of limitation for different classes of suits it would be treated that provisions prescribing period of limitation in the Limitation Act would not be applicable to suits under the U.P.Z.A. & L.R. Act. Section 189 U.P.Z.A. & L. R. Act sets out the circumstances in which the interest of a bhumidar is extinguished. Clauses (a) (aa) and (b) relate to cases where the bhumidar dies leaving no heir, or where he has let out his holding in contravention of the provisions of the Act or where the land is acquired. Sub-section (C) of Section 189 provides that where a bhumidar has lost possession the bhumidari right would extinguish when the right to recover possession is lost. In Ram Naresh v. Board of Revenue 1985 R.D. 444 relied upon by Sri. Sub-section (C) of Section 189 provides that where a bhumidar has lost possession the bhumidari right would extinguish when the right to recover possession is lost. In Ram Naresh v. Board of Revenue 1985 R.D. 444 relied upon by Sri. R. C. Singh it was held that the provisions of Section 27 of the Limitation Act would be attracted to suits instituted under Section 229-B. Section 27 provides that on the determination of the period limited for instituting a suit for possession the right to such property shall be extinguished. The rule is an exception to the general rule that limitation bars the remedy but does not extinguish the right. If however a person is in possession his right can not be extinguished unless the case is covered by Clauses (a) (aa) and (b) of Section 189. He can therefore seek a declaration of his right at any point of time. If a person has been dispossessed he would have to institute a suit under Section 209 U.P.Z.A. & L.R. Act. Appendix III provides the period for limitation for filing a suit under Section 209. It would follow therefore that a suit under Section 229-B would be barred by limitation the bhumidar is out of possession and his right to file a suit under Section 209 is barred by limitation. The finding of fact recorded on the question of possession is that the plaintiffs have established their continuous possession over the disputed land. The finding is not shown to be vitiated by any error. As the rights of the plaintiff were never extinguished no question of limitation arises. For the reasons given above the writ petition lacks merit and is dismissed." 14. In respect to the entry of 1356 fasli and 1359 fasli as well as the law relating to accrual of Adhivasi right, Hon'ble Apex Court and this Court has laid down the principle for considering the entry of 1356 and 1359 fasli which has also not been taken into consideration by all the three Courts in proper manner. 15. Considering the entire aspect of the case as well as the ratio of law laid down by this Court/ Hon'ble Apex Court, the impugned judgment dated 31.3.1980 passed by respondent no.3, 1.10.1981 passed by respondent no.2, 23.11.1990 passed by respondent no.1 are liable to be set aside and the same are hereby set aside. 15. Considering the entire aspect of the case as well as the ratio of law laid down by this Court/ Hon'ble Apex Court, the impugned judgment dated 31.3.1980 passed by respondent no.3, 1.10.1981 passed by respondent no.2, 23.11.1990 passed by respondent no.1 are liable to be set aside and the same are hereby set aside. The writ petition stands allowed and the matter is remitted back before respondent no.3, Assistant Collector, Faizabad District Faizabad to register the suit on its original number and decide the same afresh in accordance with law after proper opportunity of hearing to the petitioners, State and Gaon Sabha expeditiously preferably within period of six months from the date of production of certified copy of this order, in accordance with law. Order Date :- 22.4.2024