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2024 DIGILAW 2356 (ALL)

Rameshwar Dayal v. Board Of Revenue

2024-11-14

SAURABH SHYAM SHAMSHERY

body2024
JUDGMENT : Saurabh Shyam Shamshery,J. 1. Heard Sri Arvind Kumar Srivastava, Advocate holding brief of Sri Pramod Kumar Shukla, learned counsel for petitioner and Sri Anil Kumar Singh Baghel, learned Standing Counsel for State. 2. In the present case, father of the original petitioner/plaintiff filed a suit under Section 176 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, “the Act”) claiming 3/4 share in land in dispute, whereas the share of contesting original defendants to be distributed in remaining part of share i.e. 1/4. 3. The suit was contested and contesting defendants have filed a written statement denying claim of plaintiff. The claim of plaintiff was essentially based on C.H. Form No. 4, C.H. Form No. 5 and C.H. Form No.45, prepared during the consolidation proceedings as well as Khatauni of 1371 Fasli, where in his share, was shown to be 2/3. During suit proceedings statement of plaintiff was also recorded. 4. The S.D.M. Khurja, District- Bulandshahr decreed the suit by an order dated 23.08.1975, however, claim of plaintiff was admitted only to extent of 1/2 share and not 3/4 as claimed whereas share of contesting defendants was determined as 1/4 share each. The statement of plaintiff/original petitioner was considered against his claim. The relevant part thereof is mentioned hereinafter :- 5. The plaintiff being aggrieved by decree, filed a first Appeal before the Additional Commissioner, Meerut, however, the same was dismissed and decree was confirmed by an order dated 20.12.1975. The relevant part thereof is mentioned hereinafter :- “ I have heard the learned counsels for the parties and gone through the record of the case. The claim of the plff. Complainant is based on the entries in C.H. 4 and 5 in which the shares of the Plff. is entered as ¾. Those plots were excluded from consolidation operations. Therefore, the defdt. Had no opportunity of filing objections against these entries. The learned lower court has therefore rightly held that the entries in these forms are not final. Ram Swarup was admittedly the predecessor in interest of the contesting defendants. He and Dharampal plff. were ejected u/s 175 of the U.P. Tenancy Act, but subsequently in appeal the order of ejectment was set aside and possession was restored to the present parties as Ram Swaroop had died in the meantime. Ram Swarup was admittedly the predecessor in interest of the contesting defendants. He and Dharampal plff. were ejected u/s 175 of the U.P. Tenancy Act, but subsequently in appeal the order of ejectment was set aside and possession was restored to the present parties as Ram Swaroop had died in the meantime. I accordingly find that the learned lower court has rightly held that plaintiff appellant has got half share in the land in suit, and dismiss this appeal with costs.” 6. In the aforesaid circumstances, plaintiff filed a Second Appeal before the Board of Revenue, however, the same was also got dismissed by an order dated 22.05.1995 and relevant part thereof is mentioned hereinafter :- “ 5 . It is undisputed that the property was originally in the name of Dharampal and Ramswarup. A dispute has arisen regarding ejectment u/s 175 of the U.P. Tenancy Act, 1939. Possession was redelivered in favour of Dharampal and Ram Swaroop by the judgment dated 18.11.1950. Thus, the assumption regarding ½ shares on the basis of the judgment by the trial court is flawless. The plaintiff appellant has not been able to establish the basis for his ¾ share in the property. A mere entry in CH-4 and 5 cannot bring finality to the controversy as the shares have not been specifically recorded either in CH-45 or Khatauni 1371f. The oral evidence of the plaintiff and the defendant does not lead to any specific conclusion because of contradictions and vagueness. Dharampal was unable to throw any light on the basis of ¾ share. The defendant also could not establish that the property came to Smt. Sheela, wife of Dungal Mal and Liladhar S/o Ram Swaroop. Every record points towards the correctness of the entry in favour of Dharampal and Ram Swaroop. The shares as determined by trial court are after fair and just appreciation of evidence. There is no other substantive issue of law. The appeal is dismissed.” 7. During the proceedings of Second Appeal, plaintiff died and original petitioner herein was substituted as his legal heir, who has filed present writ petition in the year 1995 challenging all the above referred three orders. During the pendency of this writ petition, original petitioner and contesting respondent Nos.4 and 5 died and their respective legal heirs were substituted. 8. During the proceedings of Second Appeal, plaintiff died and original petitioner herein was substituted as his legal heir, who has filed present writ petition in the year 1995 challenging all the above referred three orders. During the pendency of this writ petition, original petitioner and contesting respondent Nos.4 and 5 died and their respective legal heirs were substituted. 8. Learned counsel for the petitioners has submitted that claim of plaintiff to extent of 3/4 share was based on entries mentioned in the C.H. Form No. 4, C.H. Form No. 5, and C.H. Form No. 45 prepared during consolidation proceedings and contesting defendants/respondents have not filed any objection to it during the said proceedings, therefore, they have become final. 9. Learned counsel further submitted that all Revenue Courts have disbelieved the entries made in the said forms wrongly, on basis of statement made by the plaintiff. Learned counsel also submitted that in a partition suit, share cannot be determined and for that he placed reliance on a judgment passed by Board of Revenue in case of Jai Singh Vs. Mamraj, Second Appeal No.57(z) of 1985-86, (order dated 21.07.1988). 10. Learned counsel for petitioner has also referred a judgment passed by S.D.M. Khurja, Bulandshahr dated 04.09.2010 in a subsequent case filed by one Kanti Prasad in regard to land in question also, wherein learned Court has rejected the said suit being hit by Res Judicata, but has granted liberty to file appropriate case for determination of shares. 11. None appears on behalf of contesting respondents, however, since this was an old matter (pending for last about 3 decades), therefore, matter was heard even in absence of Advocate of contesting respondents. 12. Learned Standing Counsel for State has referred the counter affidavit filed by respondent 4/2 and 4/3 and referred paragraph Nos.10, 12, 13, 14, and 15, wherein the contentions mentioned in the writ petition are being denied. For reference the same are reproduced hereinafter :- “10. That the contents of paragraph no. 10 of the writ petition are wrong hence denied. A cogent reason has been given by the Board of Revenue regarding entry in CH-4, CH-5 and CH-45 and Khatauni of 1371 fasli and has held that there is no such entry which corroborates claim of father of petitioner. The allegations made in para under reply are misconceived. 11. That the contents of paragraph nos. A cogent reason has been given by the Board of Revenue regarding entry in CH-4, CH-5 and CH-45 and Khatauni of 1371 fasli and has held that there is no such entry which corroborates claim of father of petitioner. The allegations made in para under reply are misconceived. 11. That the contents of paragraph nos. 11 & 12 of the writ petition are matter of records which may be verified therefrom, however, it is submitted that there is no illegalities in the judgment and order dated 22.05.1995 passed by Board of Revenue U.P. at Allahbad. 12. That the contents of paragraph no. 13 of the writ petition are wrong hence denied. The objection was raised at appropriate stage however, since matter was already finalized regarding share of Ram Swaroop by judgment dated 18.11.1950, therefore, all the proceedings were governed by the judicial order passed on said date. It is wrong to submit that the claim of answering respondents was barred under Section 49 of the CONSOLIDATION OF HOLDINGS ACT . 13. That the contents of paragraph nos. 14,15,16,17,18 & 19 of the writ petition are wrong hence denied. The allegation made in paras under reply are concluded by the findings of facts, therefore, they con not be adjudicated by taking recourse to writ proceedings and therefore the present writ petition is liable to be dismissed. 14. That the contents of paragraph no. 20 of the writ petition are wrong hence denied. It is wrong to submit that the claim of the answering respondents was barred by Section 49 of CONSOLIDATION OF HOLDINGS ACT . It is also wrong to submit that the share of petitioner in property in dispute was ¾. 15. That the contents of paragraph nos. 21,22,23,24 & 25 of the writ petition and grounds taken therein are wrong hence denied. It is wrong to submit that the petitioner is in possession over ¾ area of land in dispute. The real fact is that the land in dispute is lying vacant without any cultivation. The writ petition is devoid of merit and therefore is liable to be dismissed with cost.” 13. Heard counsel for petitioner and Standing counsel for State and perused the record. 14. The real fact is that the land in dispute is lying vacant without any cultivation. The writ petition is devoid of merit and therefore is liable to be dismissed with cost.” 13. Heard counsel for petitioner and Standing counsel for State and perused the record. 14. It is a case where the original petitioner and now his legal heirs have challenged concurrent findings of three Revenue Courts, wherein claim of plaintiff for 3/4th share was rejected and admitted only to the extent of 1/2th share. 15. As referred above, claim of plaintiff was based on entries made in the C.H. Form No. 4, C.H. Form No. 5 and C.H. Form No. 45 prepared during the consolidation proceedings, wherein share of plaintiff was shown to be 3/4th. All the Revenue Courts have rejected entries made in the said Forms mainly on a ground that the said entries could not be considered to be final and that original plaintiff had eventually denied on basis of such entries in his statement recorded during suit proceedings. For eference the statement of original plaintiff recorded during trial being relevant is mentioned hereinafter :- 16. As referred above, plaintiff has absolutely denied manner of entries made in said forms. It could not be denied that a procedure has been prescribed in the Land Manual about how entries ought to be entered in the said Forms which included proper information to all share holders by affixing notice and entry of the same in proceedings or Forms, however, there is no material to show that entries made in said Forms were in compliance of procedure so prescribed. Relief sought could not be granted on basis of such nature of entries. 17. The Jai Singh (supra) is against the submission of petitioners since it was held therein that “as a matter of fact a suit for partition is a regular suit and the title of the parties has to be determined by the Revenue Court because otherwise the shares of the parties cannot legally be at all determined” 18. It is well settled that in order to interfere in concurrent findings, scope of writ jurisdiction is very limited so much as that in absence of any material that findings returned were absolutely perverse or contrary to law, no interference could be warranted. (See Hari Prakash Shukla & others Vs. The State of Uttar Pradesh and Anr. It is well settled that in order to interfere in concurrent findings, scope of writ jurisdiction is very limited so much as that in absence of any material that findings returned were absolutely perverse or contrary to law, no interference could be warranted. (See Hari Prakash Shukla & others Vs. The State of Uttar Pradesh and Anr. , 2023 SCC OnLine Sc 773) 19. In the aforesaid circumstances, no reason exists or shown, which warrants interference in concurrent findings returned by three Revenue Courts, which are neither perverse nor Courts have exceeded from their jurisdiction. 20. Writ petition is accordingly, dismissed.