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2025 DIGILAW 136 (ALL)

Shyam Lal v. State of U. P.

2025-01-28

IRSHAD ALI

body2025
JUDGMENT : Irshad Ali, J. 1.Supplementary affidavit filed today in Court is taken on record. 2. Heard Sri Shyam Mohan, learned counsel for the petitioners, Sri Shatrughan Chaudhary, learned Additional Chief Standing Counsel for respondent Nos.1,3 and 4, Sri S.P. Singh, learned counsel for respondent No.2 and Sri Anoop Kumar, learned counsel for respondent No.5. 3. By means of the present writ petition, the petitioners are challenging an order dated 7.10.1996, passed by the Board of Revenue and Reference No.4 of 1995-96 dated 3.8.1995, passed by the Additional Commissioner (Judicial), Faizabad Division Faizabad (Ayodhya). 4. Brief facts of the case are that old plot Nos. 3453/0.037, 347/0.07, 3458/0.08, 3459/0.02, 3460/0.08, 3461/0.10 of Mauza Nanpara Khas, Nagar Palika Nanpara, District Bahraich were numbered as 6939/0.085,6940/0.080, 6941/0.320, 6942/0.125, 6943/0.020 and 6944/0.113 were recorded in the name of Lalta Prasad, father of petitioner Nos.1 and 2 in 1356 fasli settlement year duration of 20 years. 5. Earlier the land was recorded in the name of Ram Autar, the father of Lalta Prasad in 1336 fasli and after Ram Autar the same was recorded in the name of the father of petitioner Nos. and 2 namely Lalta Prasad, resident of Mohalla Kayastha Tola, Nanpara, District Bahraich and the settlement was made in 1366 fasli year and in the said settlement year in khasra the name of the father of petitioner Nos.1 and 2 namely Lalta Prasad was recorded. In regard to this, the petitioners have annexed copy of the settlement khasra of 1366 fasli and khatauni mohal of 1366 fasli, wherein it was recorded that provision of U.P. Zamindari Abolition & Land Reforms Act is not applicable. 6. A survey was made in 1964-65 of the notified area, Nanpara where the plots in question are situated and name of the father of the petitioners was found to be recorded. Copy of the khatauni of the notified area has been annexed as Annexure-2. The above said plots in question are non zamidari abolition land and were situated within the notified area Nanpara and on and on 7th day of July, 1949 the said plots were included in the notified area Nanpara under the provisions of the United Provinces Municipalities Act, 1916 and as such the provisions of U.P. Zamindari Abolition & Land Reforms Act was not made applicable and the said plots in question remained as a non- zamindari abolition area. The said fact is evident from the khasra and settlement of khatauni of 1366 fasli proving that the plots in question are non-zamindari abolition area and provisions of U.P. Zamindari Abolition & Land Reforms Act are not applicable. 7. After the death of the father of petitioner Nos.1 and 2 namely Lalta Prasad, the petitioner Nos.1 and 2 and Jwala Prasad, father of petitioner No.3 inherited the property being sons of Lalta Prasad. After the death of Jwala Prasad, the petitioner No.3 being son of Jwala Prasad became the owner of the property alongwith the petitioner Nos.1 and 2 and all of them remained in physical and cultivatory possession. 8. In January, 1992, the respondent No.5 tried to interfere with the possession of the petitioners on the allegations that he was the owner of the land and therefore, the petitioners filed a suit under Section 59 of the U.P. Tenancy Act alleging therein the above noted facts of their title and sought the relief of declaration of their ownership.. The respondent No.5 filed written statement in which he had stated that the land in question was his self acquired property and that he was in possession since the time of prior to zamindari abolition and the plot Nos. 6930, 6940, 6941, 6942 and 6943 fall within the ambit and scope of U.P. Zamindari Abolition & Land Reforms Act. The respondent No.5 admitted that only one plot No.6944 was beyond the purview of U.P. Zamindari Abolition & Land Reforms Act and the consolidation held of plot in question in 1973 and as such the suit was barred by the provisions of Section 49 of Consolidation of Holdings Act and was not maintainable. 9. The petitioner filed an application for interim injunction for restraining the respondent No.5 from interfering with the possession and the Sub Divisional Officer, Nanpara granted an interim injunction on 24.4.1992, maintaining the status quo and the said order was not vacated after hearing the stay vacation application. 10. Issues were framed and the issue Nos.3, 4, 10, 12, 16, 18, 20 and 22 were declared as preliminary issues and were decided as preliminary issues pertaining to the maintainability of the suit. 10. Issues were framed and the issue Nos.3, 4, 10, 12, 16, 18, 20 and 22 were declared as preliminary issues and were decided as preliminary issues pertaining to the maintainability of the suit. The Sub Divisional Officer, Nanpara after hearing the preliminary issues and preliminary objections raised by the respondent No.5 with respect to the maintainability of the suit after considering the documents came to the conclusion that the suit was maintainable and decided the preliminary issues in favour of the petitioners vide his order dated 23.11.1992 and fixed date for evidence of the plaintiffs/petitioners on 18.12.1992. Against the said interlocutory order, the respondent No.5 preferred Revision No.1061 under Section 275 of U.P. Tenancy Act before the Additional Commissioner (Judicial), Faizabad Division Faizabad (Ayodhya) and the Additional Commissioner was of the view that from a perusal of C.H. forms No.41 and 45, it appeared to him five plots out of six plots of which the consolidation took place and zamindari has been abolished with respect to five plots and the suit has been filed on 16.1.1992 relevant year 1399 fasli as such the suit was not maintainable and referred the matter by making a reference to the Board of Revenue at Allahabad vide order dated 3.8.1995. The Board of Revenue vide order dated 7.10.1995 agreed with the said reference. 11. Feeling aggrieved by allowing the reference, submission of learned counsel for the petitioners is that documents were before the Board of Revenue in the shape of Annexures-1 and 2 to the writ petition, which were not taken into consideration. It is submitted that provision of U.P. Zamindari Abolition & Land Reforms Act is not applicable. It is also submitted that the land in dispute is notified in the notified area Nanpara, therefore, the provisions of U.P. Zamindari Abolition & Land Reforms Act are not applicable. The Board of Revenue while considering the matter, has not taken into consideration, all these material facts while deciding the reference made by the Additional Commissioner. 12. A short counter affidavit has been field by respondent No.2, stating therein that the land in dispute has been notified under the United Provinces Municipalities Act, 1916 and it has been stated that on perusal of the nakal khatauni of the non- zamindari abolition lands, situated within the limits of Nagar Palika Nanpara, Bahraich, are excluded from the zamindari abolition. A short counter affidavit has been field by respondent No.2, stating therein that the land in dispute has been notified under the United Provinces Municipalities Act, 1916 and it has been stated that on perusal of the nakal khatauni of the non- zamindari abolition lands, situated within the limits of Nagar Palika Nanpara, Bahraich, are excluded from the zamindari abolition. He has also enclosed copy of the nakal khatauni as Annexure SCA-4 13. Sri Anoop Kumar, learned counsel for the respondent No.5 submits that the land in dispute comes under the U.P. Zamindari Abolition & Land Reforms Act, therefore, the impugned order passed by the Board of Revenue does not suffer from any infirmity or illegality and is a just and valid order. He invited attention in reply to the contents of paragraph 13 of the short counter affidavit, reply to the same was filed denying the contents of the affidavit filed by the respondent No.2. 14. After having heard the rival submission of learned counsel for the parties, I perused the material on record. 15. On perusal of Annexure-1 to the writ petition, it is evident that the last column of the khasra of 1366 fasli, it has been incorporated that the land in dispute does not come under the ambit of U.P. Zamindari Abolition & Land Reforms Act. Annexure-2 of the writ petition also reveals that the gata numbers referred hereinabove does not come under the ambit of U.P. Zamindari Abolition & Land Reforms Act. All these materials were before the Board of Revenue in the shape of record referred by the Additional Commissioner, Faizabad Division Faizabad but none of the documents were taken into consideration while passing the order in reference. 16. Due to non consideration of all these documents and the case of Nagar Palika, the order is devoid of merit and is liable to be set aside. In paragraph-13 of the counter affidavit filed by the Nagar Palika, it is evident that the land in question is recorded in non-zamindari abolition Act, therefore, non consideration of this aspect of the matter suffers the impugned order from infirmity and illegality passed by the Board of Revenue. 17. I have considered the submission advanced by learned counsel for the parties at length and I am of the opinion that the Board of Revenue has committed manifest error of law in passing the impugned order. 17. I have considered the submission advanced by learned counsel for the parties at length and I am of the opinion that the Board of Revenue has committed manifest error of law in passing the impugned order. The Board of Revenue has not taken care of the record placed before it while making reference by the Additional Commissioner, Faizabad Division Faizabad, therefore, the impugned order is hereby set aside. 18. The writ petition succeeds and is allowed 19. The Board of Revenue is directed to pass a fresh order after going through the documents laid before it alongwith the record in reference within a period of four months from the date of production of a certified copy of the order. 20. It is however made clear that the record of the trial court, if not before the Board of Revenue, it shall be summoned from the trial court for perusal of the record.