Research › Search › Judgment

Allahabad High Court · body

2025 DIGILAW 128 (ALL)

Beni Singh v. State of U. P.

2025-01-24

CHANDRA KUMAR RAI

body2025
JUDGMENT : Chandra Kumar Rai, J. 1. Certified copy of the order dated 4.4.2017 passed in Writ C No.9879 of 2017 as well as true copy of written statement filed in Suit No.86 of 1974 at the instance of learned counsel for the respondent no.4 are taken on record. 2. Heard Mr. Ram Sajiwan Mishra, learned counsel for the petitioner, Dr. G.S.D. Mishra and Mr. Narendra Kumar Singh, learned counsel for respondent no.4 and Mr. Shashi Kant Kushwaha, learned standing counsel for the state-respondents. 3. Brief facts of the case are that dispute relates to khata No. 55, 56 arazi Nos. 357, 358 and 359, total area 3-5-0 situated at Village Hanspur, Tehsil and District Kanpur Nagar. In the basic year khatauni, plots in question were recorded in the name of Shiv Ratan Singh (petitioner’s father). One Shiv Pal Singh filed a suit under Section 229 -B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as U.P. Z.A. & L.R. Act) for declaration which was registered as suit No. 270 of 1970 before Sub Divisional Officer, Kanpur Nagar. The aforementioned suit was decreed ex-parte vide judgement and decree dated 31.3.1973. On the restoration application filed by Shri Somnath Shukla, ex-parte decree dated 31.3.1973 was set aside and the suit was ultimately dismissed vide judgement and decree dated 9.12.1998. Appeal filed by Shri Shiv Pal Singh against the judgement and decree of Trial Court dated 9.12.1998 was allowed on 26.7.2000, setting aside the judgement and decree of Trial Court dated 9.12.1998. Restoration application filed on behalf of Shri Somnath Shukla against the judgement dated 26.7.2000 was dismissed on 3.8.2000. The Additional Commissioner ultimately vide judgement dated 20.1.2001 allowed the appeal No. 100/115 of 2000-21, setting aside the judgement and decree dated 9.12.1998 passed by Trial Court and decreed the plaintiff’s suit declaring the plaintiff (Shiv Pal Singh) as bhoomidhar with transferable right. Petitioner challenged the judgement and decree of first Appellate Court dated 20.1.2021 by way of second appeal before the Board of Revenue which was registered as second appeal No. 23 of 2000-01. The aforementioned second appeal was heard and allowed by Board of Revenue vide judgement and decree dated 30.3.2007, setting aside the judgement/ decree dated 20.1.2001 passed by First Appellate Court. The aforementioned second appeal was heard and allowed by Board of Revenue vide judgement and decree dated 30.3.2007, setting aside the judgement/ decree dated 20.1.2001 passed by First Appellate Court. Due to death of plaintiff-Shiv Pal Singh, his legal heirs (Rakesh Pratap Singh and Rudra Pratap Singh) filed a restoration application on 29.8.2008 before the Board of Revenue. The aforementioned restoration application dated 29.8.2008 was rejected by the Board of Revenue vide order dated 10.4.2013. Rakesh Pratap Singh and Rudra Pratap Singh (legal heirs of Shiv Pal Singh) filed Writ B No.37472 of 2013 before this Court against the order dated 30.3.2007 passed by the Board of Revenue. This Court vide order dated 15.7.2013 allowed the aforesaid writ petition on the ground that the Board of Revenue has not framed the substantial questions of law while deciding the second appeal and the matter was remanded back before the Board of Revenue to decide the second appeal afresh, after framing substantial questions of law in case it arises and then proceed to decide the same in accordance with law. The Board of Revenue vide subsequent order dated 15.4.2015, allowed the second appeal filed by the petitioner (Beni Singh), setting aside the order of the 1 st appellate court dated 20.1.2001 and affirmed the judgement/decree of the trial court dated 9.12.1988. Rakesh Pratap Singh and Rudra Pratap Singh challenged the order of the Board of Revenue dated 15.4.2015 before this Court by means of Writ B No.36360 of 2015 which was dismissed by this Court vide order dated 19.8.2015. In pursuance of the order of the Board of Revenue dated 15.4.2015, the Board of Revenue issued a Parawana on 11.4.2016 to the District Magistrate, Kanpur to ensure the execution of the order dated 15.4.2015 passed by the Board of Revenue. The reports were submitted in the proceeding. Respondent no.4 filed an application on 13.12.2016 against which petitioner had filed his objection on 24.4.2017 before respondent no.3. Respondent no.3 has allowed the application dated 13.12.2016 filed by respondent no.4 vide order dated 15.6.2017. Petitioner (Beni Singh) challenged the order dated 15.6.2017 before the Board of Revenue by way of revision under under Section 333 of the U.P. Z.A. & L.R. Act which was registered as Case No.REV/70/18. The aforementioned revision was dismissed under order impugned dated 29.4.2024 by the Board of Revenue. Petitioner (Beni Singh) challenged the order dated 15.6.2017 before the Board of Revenue by way of revision under under Section 333 of the U.P. Z.A. & L.R. Act which was registered as Case No.REV/70/18. The aforementioned revision was dismissed under order impugned dated 29.4.2024 by the Board of Revenue. Hence, this writ petition for the following reliefs:- (i) Issue a writ, order or direction of a suitable nature of certiorari quashing the impugned order and judgment dated 15.6.2017 passed by the Sub Divisional Magistrate, Sadar, District Kanpur Nagar in Case No.84/1998-99 (Shivpal Singh vs. Shiv Ratan Singh) and order and judgment dated 29.4.2024 passed by Board of Revenue, U.P., Prayagraj in Revision No.70 of 2018 (Computerized Case No.AL201803410090) (Beni Singh vs. State of U.P. and Others) (Annexure Nos. 1 and 2 of the writ petition). (ii) Issue a writ, order or direction in the nature of mandamus, directing the respondents not to implement the order and judgment dated 15.6.2017 and 29.4.2024 passed by the respondent nos. 2 and 3 and the respondent no.4 may be restrained to change the nature of the land in question.” 4. Counsel for the petitioner submitted that Somnath Shukla was not given any relief in the proceeding of suit under Section 229 -B of the U.P. Z.A. & L.R. Act, as such, the impugned order cannot be sustained in the eye of law. He further submitted that Somnath Shukla has set up his claim in respect to the land in question on the ground that petitioner’s father (Shiv Ratan Singh) had sold him the plot in question by way of sale deed dated 7.3.1968 but he could not prove his case before the court in the proceeding under Section 229 -B of the U.P. Z.A. & L.R. Act, as such, respondent no.4 has no right to question the validity of the orders and Parwana issued by the court. He also submitted that the sale deed alleged to be executed by the petitioner’s father in favour of Somnath Shukla is doubtful as the sale deed was not enforced in the lifetime of petitioner’s father, as such, Somnath Shukla and Santosh Kumar had no right to execute any sale deed in favour of Gyanendra Singh and Smt. Nishi Bhadauriya. He also submitted that the sale deed alleged to be executed by the petitioner’s father in favour of Somnath Shukla is doubtful as the sale deed was not enforced in the lifetime of petitioner’s father, as such, Somnath Shukla and Santosh Kumar had no right to execute any sale deed in favour of Gyanendra Singh and Smt. Nishi Bhadauriya. He also submitted that the land in question is ancestral property of the petitioner and Somnath Shukla as well as Santosh Kumar cannot claim any right and title on the basis of impleadment in Second Appeal No.23 of 2001 before the Board of Revenue. He also submitted that the impugned orders are liable to be set aside and respondent no.4 be restrained from changing the nature of the plot in question. 5. On the other hand, Dr. G.S.D. Mishra, learned counsel for respondent no.4 submitted that Writ C No.9879 of 2017 filed by petitioner (Beni Singh) against the parwana/amal daramad dated 2.8.2017 issued by the Sub Divisional Officer for recording the name of Smt. Nishi Bhadoria, was dismissed by this Court vide order dated 4.4.20174, as such, there is no illegality in the impugned order. They further submitted that in Civil Suit No.86 of 1974 filed by Somnath Shukla and others, petitioner’s father Shiv Ratan Singh filed his written statement, stating specifically that he has executed a sale deed on 7.3.1968 in favour of Somnath Shukla and on the basis of sale deed, Somnath Shukla came in possession over the same. They submitted that in view of the written statement filed by petitioner’s father Shiv Ratan Singh, admitting the execution of sale deed dated 7.3.1968 in favour of Somnath Shukla, there is no illegality in the impugned orders passed by respondent nos. 2 & 3. They also submitted that in second appeal filed before the Board of Revenue, Somnath Shukla was ordered to be impleaded as appellant along with petitioner (Beni Singh), as such, petitioner cannot ignore the right and title of Somnath Shukla. They further submitted that Smt. Nishi Bhadauriya was also substituted in place of Somnath Shukla on the basis of sale-deed executed in her favour. They further submitted that Smt. Nishi Bhadauriya was also substituted in place of Somnath Shukla on the basis of sale-deed executed in her favour. They submitted that the sale deed executed by the petitioner’s father in favour of Somnath Shukla and Santosh Kumar as well as the subsequent sale- deed executed in favour of Smt. Nishi Bhadauriya have not been cancelled by any court of law, as such, Parwana issued for recording the name of petitioner (Beni Singh) only was defective, accordingly, vide order dated 15.6.2017 earlier Parwana dated 27.9.2016 was set aside and earlier status of entry was maintained which is in accordance with law. They also submitted that revision has also been dismissed in proper manner recording the finding of fact while dismissing the revision. They submitted that no interference is required against the impugned order passed by respondent nos.2 & 3. 6. I have considered the argument advanced by learned Counsel for the parties & perused the record. 7. There is no dispute about the fact that respondent No-3/Sub Divisional Officer vide order dated 15.6.2017 cancelled the entry made on the basis of defective parwana dated 27.9.2016 and maintained the status/entry earlier to 27.9.2016. There is also no dispute about the fact that revision filed by petitioner has been dismissed under the impugned revisional order dated 29.4.2024. 8. In order to appreciate the controversy involved in the matter, the perusal of the written statement filed by the petitioner’s father Shiv Ratan Singh, admitting the execution of sale deed dated 7.3.1968 in favour of Somnath Shukla will be relevant which is as under:- 9. The perusal of the averment made in the written statement fully demonstrates that the petitioner’s father has admitted the execution of the sale deed dated 7.3.1968 in favour of Sri Somnath Shukla. 10. The perusal of the order dated 4.4.2017 passed by this court considering the primafacie case of Sri Somnath Shukla & Smt. Nishi Bhadauria will be also relevant which is as under :- “Heard Shri R.S. Mishra, counsel for the petitioner and Dr. G.S.D. Mishra, for the contesting respondent. The writ petition has been filed against the Parwana/ Amaldaramad dated 2.1.2017 issued by the Sub Divisional Officer for recording the names of Nishi Bhadauriya, by which implementation of Parwana issued on 15.4.2015 has been stayed and both the parties are given opportunity to raise their grievance. G.S.D. Mishra, for the contesting respondent. The writ petition has been filed against the Parwana/ Amaldaramad dated 2.1.2017 issued by the Sub Divisional Officer for recording the names of Nishi Bhadauriya, by which implementation of Parwana issued on 15.4.2015 has been stayed and both the parties are given opportunity to raise their grievance. Since, the petitioner has an opportunity before the Sub Divisional Officer to raise his grievance. As such, it is not proper for this Court to quash the order which otherwise does not cause any prejudice to the petitioner. So far as Nishi Bhadauriya, respondent no. 4 is concerned she is transferee of Somnath Shukla and she has also been substituted as party before Board of Revenue in the second appeal. Counsel for the petitioner has raised a serious argument that her father has not executed any sale deed nor the transferee namely Somnath Shukla and others were contesting the matter in the earlier suit. This argument does not appears to be correct and a perusal of the judgment of Board of Revenue dated 15.4.2015 shows that the Board of Revenue clearly found that Shiv Ratan has executed a sale deed dated 7.3.1968 in favour of Somnath Shukla and others. Shiv Ratan as well as Somnath Shukla have contested the proceedings before the Board of Revenue jointly. The argument in this respect is not liable to be accepted. The writ petition is dismissed.” 11. In view of the aforementioned facts with respect to the execution of the sale deed by the petitioner’s father in favour of Somnath Shukla, coupled with the fact that Somnath Shukla later on Nishi Bhadauria was appellant alongwith petitioner Beni Singh in second appeal No- 23 of 2001 before board of revenue, there is no illegality in the order dated 15.6.2017 passed by the S.D.O., Sadar, Kanpur, setting aside the defective Parwana dated 27.9.2016 as well as the entry made in pursuance of the Parwana dated 27.9.2016 and maintaining the status of entry before 27.9.2016. The revisional court has also considered the entire facts and circumstances while dismissing the revision under the impugned order dated 29.4.2024. 12. Considering the entire facts and circumstances, no interference is required against the impugned orders dated 15.6.2017 and 29.4.2024 passed by respondent nos. 3 & 2 respectively. 13. The writ petition is accordingly dismissed.