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2024 DIGILAW 841 (ALL)

Sanjeev Kumar Agrawal v. State of U. P.

2024-03-18

CHANDRA KUMAR RAI

body2024
JUDGMENT Chandra Kumar Rai, J. Heard Mr. Ashish Kumar Dwivedi, learned counsel for the petitioners, Mr. Ashok Kumar Singh, learned counsel for respondent Nos. 6, 7, 8 & 9, Mr. Rahul Kumar Tyagi learned counsel for respondent No. 7, Mr. Pankaj Srivastava, learned counsel for respondent No. 5 Nagar Nigam and Mr. Hari Mohan Srivastava, learned Additional Chief Standing Counsel for the State-respondents. 2. Brief facts of the case are that one Swaroop S/o Buddhan was recorded as Bumidhar in respect to Khasra No. 59 area 0.3430 hectare (old Khasra No. 38) situated at village Noor Nagar, Pargana, Tehsil and District Meerut. Swaroop had executed a sale deed in favour of Devan Singh on 11.06.1962 accordingly, the name of Devan Singh was recorded in the revenue record vide order dated 18.04.1967 passed by Consolidation Officer in Case No. 2822 of 1967. An agreement to sale was executed by Devan Singh in favour of one Raj Bahadur and Smt. Shanti Devi on 20.01.1979. Shanti Devi and Raj Bahadur instituted a suit No. 456 of 1985 for specific performance of contract, which was decreed in favour of Shanti Devi and Raj Bahadur vide judgmethe mobile fell on the ground and was broken and two such, mischief was causednt and decree dated 13.09.1988. Shanti Devi and Raj Bahadur accordingly filed a execution case in pursuance of judgment and decree dated 13.09.1988. Accordingly, a sale deed was executed on 16.01.1989 in the aforementioned execution case in favour of Shanti Devi and Raj Bahadur and possession was also delivered in favour of Shanti Devi and Raj Bahadur. Subsequently, name of Kishan Gopal, Jitendra Kumar, Nitin Kumar, Manish Kumar and Deepak Kumar were recorded in revenue record as Bhumidhar of Gata No. 59 on the basis of will deed. Subsequently, Kishan Gopal, Jitendra Kumar, Nitin Kumar and Manish Kumar executed the sale deed on 27.06.2013 in favour of Satish Sharma and Manoj Kumar Kaushik. Manoj Kumar Kaushik and Satish Sharma accordingly executed a sale deed on 07.10.2013 in favour of petitioners. According to the petitioner, name of petitioners were recorded in Nagar Nigam Meerut for the purpose of payment of house tax etc. Respondent Nos. 6 to 9 filed a case under Section 134 of U.P. Revenue Code 2006 before the Sub-Divisional Officer, Meerut, which was registered as Case No 05419 of 2019 impleading the petitioners as opposite party in the case. Respondent Nos. 6 to 9 filed a case under Section 134 of U.P. Revenue Code 2006 before the Sub-Divisional Officer, Meerut, which was registered as Case No 05419 of 2019 impleading the petitioners as opposite party in the case. Petitioners appeared in the aforementioned case and filed their objections. Sub-Divisional Officer vide Judgment and decree dated 30.04.2022/22.8.2022 dismissed the suit filed by respondent Nos. 6 to 9. Against the judgment and decree dated 30.04.2022/22.08.2022 respondent Nos. 6 to 9 filed an appeal under Section 207 of the U.P. Revenue Code 2006, which was registered as Appeal No1427 of 2022. The aforementioned appeal was heard by Additional Commissioner and the same was allowed vide judgment dated 06.04.2023 setting aside the judgment and decree dated 30.04.2022/22.08.2022 as well as decreed the plaintiffs' suit filed under Section 134 of U.P. Revenue Code 2006. Petitioners along with other co-sharer filed second appeal under Section 208 of U.P. Revenue Code 2006 before respondent No. 2/Board of Revenue, which was registered as Second Appeal No. 1510 of 2023. The aforementioned Second Appeal was heard and the same was dismissed vide judgment dated 02.08.2023. Hence, this writ petition on behalf of petitioners challenging the order dated 06.04.2023 passed by Additional Commissioner, Meerut and order dated 02.08.2023 passed by Board of Revenue U.P. Lucknow. 3. This Court vide order dated 08.11.2023 directed the learned Standing Counsel for the State as well as learned counsel appearing for the Gaon Sabha to obtain instruction as to when the land in dispute has been vested in the territory of Municipal Corporation. 4. In pursuance of the order of this Court, learned counsel appearing for respondent No. 5 Nagar Nigam placed the instruction dated 15.12.2023 stating that Khasra No. 59 area 0.3430 hectare is not under the Nagar Nigam. 5. Mr. Hari Mohan Srivastava, learned Additional Chief Standing Counsel for the State on the basis of instruction sent by Sub-Divisional Officer, Meerut, submitted that village Noor Nagar, Pargana, Tehsil and District Meerut comes under the Nagar Nigam and residential house/boundary wall are situated in plot No. 59. He further submitted that there is dispute regarding possession between the private parties. 6. Counsel for the petitioners submitted that suit filed under Section 134U.P. Revenue Code 2006 has been rightly dismissed as not maintainable against the petitioners as the land is situated in urban area and aabadi is situated over plot in question. He further submitted that there is dispute regarding possession between the private parties. 6. Counsel for the petitioners submitted that suit filed under Section 134U.P. Revenue Code 2006 has been rightly dismissed as not maintainable against the petitioners as the land is situated in urban area and aabadi is situated over plot in question. He further submitted that petitioners have acquired the land byway of registered sale deed as such, the suit under Section 134 of the U.P. Revenue Code 2006 cannot be decreed unless the sale deed in question is cancelled in accordance with law. He further submitted that area Lekhpal has submitted his report in which it is mentioned that land in dispute is non-agricultural land. He further submitted that respondent Nos. 6 to 9 are not in possession over the disputed land and no objections were filed by respondent Nos. 6 to 9 during consolidation operation. He further submitted that appeal filed against the judgment and decree of the trial court has been allowed in arbitrary manner by Additional Commissioner. He further submitted that suit filed under Section 134 of the U.P. Revenue Code 2006 cannot be decreed in appeal without framing proper issue in the suit. He further submitted that Additional Commissioner has allowed the appeal and decreed the suit also without sending the matter back before the trial court to decide the suit in accordance with law. He further submitted that second appeal filed by petitioners has been also dismissed in arbitrary manner. He further submitted that impugned judgment passed by Additional Commissioner, Meerut and Board of Revenue be set aside and the judgment passed by Sub-Divisional Officer dated 30.04.2022/22.08.2022 be affirmed. 7. On the other hand, Mr. Ashok Kumar Singh, learned counsel appearing for respondent Nos. 6 to 9 and Mr. Rahul Kumar Tyagi, learned counsel appearing for respondent No. 7 submitted that during consolidation operation proceeding under Section 9A (2) of the U. P. Consolidation of Holdings Act was contested between the parties and this Court vide judgment dated 02.12.2016 allowed the Writ Petition No. 58750 of 2015 filed by respondent No. 6 Smt. Guddi setting aside the order of Deputy Director of Consolidation dated 5.10.2015 and affirmed the order of Settlement Officer dated 11.04.2011 by which it has been held that respondent No. 6 Guddi is entitled to be recorded over the plot in question. They further submitted that Special Leave Petition 2979 of 2017 filed by Kishan Gopal against the judgment of this Court dated 02.12.2016 was dismissed by Hon'ble Apex Court vide order dated 17.02.2017. They further submitted that in view of final adjudication taken place during consolidation operation respondent No. 6 to 9 are recorded over the plot in question as such, there was no occasion to the person to execute the will deed or sale deed in respect to plot which was under dispute before the consolidation authority as well as before this Court and Hon'ble Apex Court. They further submitted that petitioners have no right and title in respect to plot in question as their predecessor-in-interest have lost their claim in the title consolidation proceeding. They further submitted that suit under Section 134 of U.P. Revenue Code 2006 was rightly filed by respondent No. 6 to 9 before the Sub Divisional Officer. They further submitted that Suit was illegally dismissed by Sub Divisional Officer, but in appeal, the Additional Commissioner has considered the entire controversy as well as the earlier adjudication made by the consolidation authority in respect to the plot in question and found that suit filed by respondent Nos. 6 to 9 is maintainable and the same is liable to be decreed. They further submitted that Additional Commissioner has also recorded finding of fact that land in dispute is recorded as agricultural land and the adjudication has been made by consolidation authority in respect to plot in question which also demonstrate that the land in dispute is agricultural land. They further submitted that Additional Commissioner has also recorded finding of fact that there is no declaration under Section 143 of the U.P.Z.A. & L.R. Act 1950 or under Section 80 of U.P. Revenue Code 2006 declaring the land in question as non-agricultural as such, the plot in dispute shall be treated as agricultural plot. It is submitted that no interference is required in the matter and the writ petition is liable to be dismissed with costs as petitioners have abused the process of law in view of the fact that predecessor in interest have lost in title case before consolidation court which was contested up to Hon'ble Apex Court. It is submitted that no interference is required in the matter and the writ petition is liable to be dismissed with costs as petitioners have abused the process of law in view of the fact that predecessor in interest have lost in title case before consolidation court which was contested up to Hon'ble Apex Court. They further placed reliance upon the judgment reported in 1974 RD 385 Ram Achal & others v. Shashi Brind Tiwari & others as well as AIR 1976 SC 232 Sawarn Singh v. State of Punjab & others in support of their argument. 8. Mr. Hari Mohan Srivastava learned Additional Chief Standing Counsel and Mr. Pankaj Srivastava learned counsel for Nagar Nigam have supported the impugned judgment and submitted that no interference is required in the matter. 9. I have considered the arguments advanced by learned counsel for the parties and perused the record. 10. There is no dispute about the fact that earlier litigation took place between respondent No. 6 to 9 and vendor of the petitioner during consolidation operation has been decided in favour of respondent Nos. 6 to 9 vide judgement dated 02.12.2016 passed in Civil Misc. Writ Petition No. 58750 of 2015. There is also no dispute about the fact that Special Leave Petition filed by vendor of the petitioner against the judgment dated 02.12.2016 has been dismissed by Hon'ble Apex Court vide order dated 17.02.2017. There is also no dispute about the fact that suit under Section 134 of U.P. Revenue Code 2006 filed by respondent Nos. 6 to 9 was initially dismissed by Sub Divisional Officer but in appeal, the suit has been decreed and second appeal filed on behalf of petitioners has been dismissed. 11. In order to appreciate the controversy involved in the matter the perusal of Section 134 of U.P. Revenue Code 2006 will be relevant which is as under:- 134 Ejectment of persons occupying land without title. - (1) Where a person takes or retains possession of any land forming part of the holding of any bhumidhar or asami otherwise than in accordance with the provisions of the law for the time being in force and without the consent of such bhumidhar or asami, such person shall be liable to ejectment on the suit of the bhumidhar or asami concerned,and shall also be liable to pay damages at the rate prescribed Act. (2) To every suit relating to any land referred to in sub-section (1), the State Government and Gram Panchayat shall be impleaded as necessary parties. 12. Considering the provision contained under Section 134 of the U.P. Revenue Code 2006 as well as the final adjudication took place between respondent Nos. 6 to 9 and predecessor-in-interest of the petitioners during consolidation operation it is fully demonstrated that respondent Nos. 6 to 9 have been found bhumidhar of the plot in question. The dispute took place during consolidation operation has been finally decided by this Court vide judgment dated 02.12.2016 upholding the title of respondent Nos. 6 to 9. The Additional Commissioner while allowing the appeal under Section 207 of U.P. Revenue Code 2006 vide judgment dated 06.04.2023 has considered the entire aspects of the case which will be relevant for perusal, the same is as under:- 13. Considering the finding of fact recorded by Additional Commissioner vide judgment dated 06.04.2023 as quoted above it is fully demonstrated that title of respondent Nos. 6 to 9 have been affirmed during consolidation operation in title proceeding and nature of plot has also been found as agricultural plot as such, the suit under Section 134 of U.P. Revenue Code 2006 was decreed by the Additional Commissioner in appeal. Additional Commissioner has also recorded finding of fact that there is no declaration of the plot in question under Section 143 of the U.P.Z.A & L.R. Act/Section 80 of U.P. Revenue Code 2006. 14. Considering the finding of fact recorded by Additional Commissioner, there is no scope of interference by this Court against the judgment and decree dated 06.04.2023 passed by Additional Commissioner, which has been maintained by Board of Revenue under the impugned order dated 02.08.2023. 15. The argument advance by learned counsel for the petitioners that plot in question is Abadi cannot be accepted unless there is any revenue entry to that effect or declaration by the revenue Court to that effect. 16. Considering the entire facts and circumstances of the case, no interference is required in the matter and the writ petition is accordingly dismissed.