Court No. - 8
Case :- WRIT - B No. - 756 of 2004 Petitioner :- Bharat Singh & Others Respondent :- Principal Secretary, Revenue & Others Counsel for Petitioner :- S.K. Mishra Counsel for Respondent :- C.S.C.,Pankaj Kumar Tyagi,Rajiv Gupta
Hon'ble Salil Kumar Rai,J.
1. Heard Shri S.K. Mishra, learned counsel for the petitioners, learned Standing Counsel representing respondent Nos. 1 to 3 as well as Shri Pankaj Kumar Tyagi, learned counsel representing respondent Nos. 4 to 7. Even though the case has been called out in the revised list, no one appeared on behalf of Gaon Sabha-respondent No. 8.
2. The dispute between the petitioners as well as respondent Nos. 4 to 7 relates to Plot Nos. 478 (1-2-0), 479 (0-5-0) and 481 (0-7-0). The petitioners as well as respondent Nos. 4 to 7 are the grand sons of one Seeshram. Seesram had two sons namely Dal Chand and Booti Singh. Petitioners are the sons of Booti Singh while respondent Nos. 4 to 7 are the sons of Dalchand. In the Revenue Records of 1388 Fasli, Seesram was recorded as Bhumidhar with non-transferable right of the disputed plots since 1384 Fasli i.e. 1977. The said land was allegedly allotted to Seesram by the Gaon Sabha. Seesram died on 20.6.1991. Subsequently, vide order dated 11.7.1991 names of Dal Chand and Booti Singh, as heirs of Seesram, were recorded in the Revenue Records relating to the disputed plots. However, after the death of Seesram, respondent Nos. 4 to 7 filed an application under Section 34 of Uttar Pradesh Land Revenue Act, 1901 (hereinafter referred to as, 'Act, 1901') praying for mutation of their names in the Revenue Records relating to the disputed plots on the basis of some registered Will dated 6.9.1985 allegedly executed by Seesram in their favour. The aforesaid application was dismissed by the Tehsildar, Meerut vide his order dated 17.1.1993 on the ground that Seesram was Bhumidhar with non-transferable right, therefore, respondent Nos. 4 to 7 cannot get any title over the said property by virtue of alleged Will dated 6.9.1985. Against the aforesaid order dated 17.1.1993 passed by Tehsildar, Meerut, Dal Chand i.e. father of respondent Nos. 4 to 7 filed an Appeal, which was dismissed vide order dated 6.10.1993. During the pendency of the aforesaid mutation proceedings, Dal Chand had also filed a suit under Section 229-B of Uttar Pradesh Zamindari Abolition and Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') instituting Case No. 28/1992 (subsequently renumbered as Case No. 62/9/28) against petitioners as well as Booti Singh praying to be declared as Bhumidhar with non-transferable right of the disputed plots by operation of Section 122-B (4-F) of Act, 1950 alleging that he was in possession of the disputed plots since before 1970 and Seesram was wrongly recorded as Pattedar/Bhumdhar with non-transferable right of the disputed plots in the Revenue Records. Booti Singh as well as petitioners contested the aforesaid case No. 28/1992 wherein they brought to the notice of the Court the abovementioned mutation proceedings and also denied that plaintiff in the aforesaid case i.e. predecessor in interest of respondent Nos. 4 to 7, was ever in possession of the disputed plots in his own right and also stated that Dal Chand i.e. plaintiff in the aforesaid case merely managed the disputed plots on behalf of Seesram as his son. The Trial Court i.e. Court of Assistant Collector/Additional City Magistrate, Meerut framed 10 issues for determination. The issues framed by the Trial Court and relevant for deciding the present writ petition were (i) whether the plaintiff i.e. the predecessor in interest of respondent Nos. 4 to 7 was the Bhumidhar with non-transferable right of the disputed plots (ii) whether the disputed land was allotted to Seesram and, if yes, the effect of such allotment and (iii) whether Case No. 28/1992 was barred by Section 49 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') as well as estoppel and acquiescence.
3. After considering the evidence in the case, the Trial Court vide its judgement and order dated 30.4.1994 dismissed Case No. 28/1992. The reasons given by the Trial Court for dismissing the case were (i) no explanation was given by Dal Chand for not instituting the aforesaid case during the life time of Seesram, and therefore, the suit was barred by principles of estoppel and acquiescence, (ii) consolidation proceedings under Act, 1953 had intervened between the date from which the plaintiff claimed to be in possession of the disputed plots and the date of the institution of the suit and no steps were taken by the plaintiff to get the Revenue Records corrected and no objections were filed by the plaintiff before the Consolidation authorities, therefore, the suit was barred by virtue of Section 49 of Act, 1953 and (iii) no action was taken by the plaintiff to get the allotment of disputed plots in favour of Seesram cancelled as the said allotment could be cancelled only by the Collector under Section 198(4) of Act, 1950 and the legality of the said allotment can not be considered in proceedings under Section 229-B of Act, 1950. Apart from above, the Trial Court also considered the fact that the plaintiff was recorded as tenure holder of a part of plot Nos. 478 and 481 in a separate Khata, which according to the opinion of the Trial Court, falsified the claim of the plaintiff that he was in possession of the disputed plots since 1970. In its judgement dated 30.4.1994, the Trial Court also recorded a finding that as the plaintiff was a Bhumidhar of 0.152 Hectare of agricultural plot and was also allotted 12 Biswa of agricultural plot, therefore, he was not entitled to an order under Section 122-B (4-F) of Act, 1950. Regarding the different receipts showing payment of irrigation charges and land revenue by the plaintiff which were produced by the plaintiff to establish his independent possession over the disputed plots, the trial Court recorded its opinion that the said receipts may have been issued in the name of plaintiff as plaintiff was a member of the family of Seesram and, further the receipts were not conclusive evidence to prove independent possession of the plaintiff over the disputed plots.
4. Against the judgement and order dated 30.4.1994 passed by the Trial Court, the plaintiff i.e. Dal Chand filed an appeal under Section 331 of Act, 1950, which was numbered as Appeal No. 132/1993-94. A perusal of the judgement of First Appellate Court shows that in the aforesaid appeal, it was argued by the counsel for Dal Chand that Seesram was illegally allotted the disputed plots by the Land Management Committee. The First Appellate Court, i.e. Additional Commissioner, Meerut Division, Meerut vide its judgement and order dated 2.5.1995 allowed the aforesaid Appeal No. 132/1993-94 by setting aside the judgement and order dated 30.4.1994 passed by the Trial Court and decreed Case No. 28/1992 declaring the plaintiff/appellant as Bhumidhar with non-transferable right of the disputed plots. Against the judgement and order dated 2.5.1995 passed by First Appellate Court, Booti Singh filed Second Appeal before Board of Revenue, Uttar Pradesh at Allahabad under Section 331(4) of Act, 1950, which was numbered as Second Appeal No. 97/1994-
95. The Second Appeal Court vide its judgement and order dated 12.10.1999 dismissed the aforesaid Second Appeal. The judgements and orders dated 2.5.1995 and 12.10.1999 passed by First Appellate Court and Second Appeal Court respectively, have been challenged in the present writ petition. After the judgement and order dated 12.10.1999 passed by Board of Revenue, Uttar Pradesh, Allahabad, Booti Singh died and the present writ petition has been filed by successors of Booti Singh against the successors of Dal Chand. The writ petition was filed in the year 2004 and notices of the present case were issued to the respondent Nos. 4 to 7 by this Court.
5. It has been argued by learned counsel for the petitioners that while allowing Appeal No. 132/1993-94 vide its judgement and order dated 2.5.1995, the First Appellate Court has not considered the evidence on record and has decreed the case of the plaintiff i.e. predecessor in interest of respondent Nos. 4 to 7 without appreciating the evidence on record. Counsel for petitioners has further argued that First Appellate Court allowed Appeal No. 132/1993-94 and decreed Case No. 28/1992 without reversing the findings of the Trial Court on major issues especially the issue relating to Section 49 of Act, 1953. Counsel for the petitioners has also argued that the Second Appeal Court failed to consider the aforesaid irregularities committed by the First Appellate Court and has exceeded its jurisdiction by independently appreciating evidence and recording findings of fact. It was argued by counsel for the petitioners that for the aforesaid reasons the judgements passed by First Appellate Court as well as Second Appeal Court are contrary to law liable to be set aside.
6. Rebutting the argument of learned counsel for the petitioners, counsel for respondent Nos. 4 to 7 has argued that the present writ petition is highly belated as the same was filed after four and half years of the judgement of Second Appeal Court and is liable to be dismissed on the ground of laches. Counsel for respondent Nos. 4 to 7 has further argued that it was evident from the different receipts produced by Dal Chand in the Courts below that Dal Chand was in possession of the disputed plots since 1970 in his own right and not as son of Seesram and therefore, the First and Second Appeal Courts have rightly decreed the case by declaring him Bhumidhar with non- transferable rights under Section 122B (4-F) of Act, 1950.
7. Considered the rival submissions of learned counsel for the parties and perused the record.
8. The judgement of Second Appeal Court was passed on 12.10.1999 and the writ petition was filed in January, 2004. The reasons for delay in filing the present writ petition have been stated in paragraph Nos. 17 to 24 of the writ petition. In the aforesaid paragraphs, the petitioners have stated that the Second Appeal was transferred to the Board of Revenue, Meerut Cantt, where a new counsel was engaged by Booti Singh and the said counsel never informed either Booti Singh or the petitioners about the judgement and order dated 12.10.1999 passed by the Board of Revenue. It has been further stated in the aforesaid paragraphs that Booti Singh was bed ridden for two years and subsequently died on 27.2.2002 after prolonged illness. It has been stated in the aforesaid paragraphs that petitioners came to know about the judgement and order dated 12.10.1999 passed by Second Appeal Court in December, 2003 only after the Revenue Records were corrected on the basis of aforesaid impugned judgements. The aforesaid facts stated in the writ petition sufficiently explain the alleged laches in filing the writ petition. Further, it has been admitted by the learned counsel for the parties, during the course of argument, that no third party rights have been created on the disputed plots. The writ petition is pending since 2004 and the respondents have appeared in the case through their counsels and filed counter affidavit contesting the case of the petitioners. In the circumstances, it would be inequitable to dismiss the present writ petition on the ground of laches. Thus, the argument of the learned counsel for respondent Nos. 4 to 7 that the writ petition is liable to be dismissed on the ground of laches alone is rejected.
9. Reasons given by the Trial Court in its judgement and order dated 30.4.1994 while dismissing Case No. 28/1992 have been narrated in detail in the previous paragraphs of the judgement. However, a reading of the judgement dated 2.5.1995 passed by the First Appellate Court, shows that the First Appellate Court did not apply its mind to the facts of the case and passed a cryptic order allowing the appeal. The effective and relevant portion of the judgement of the First Appellate Court is reproduced below :-
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10. The above extract from the judgement of the First Appellate Court is a complete reproduction of the findings recorded and reasons given by the Court while allowing the appeal by reversing the judgement of the Trial Court. It is evident that the First Appellate Court has not referred to any evidence to support the findings recorded by it in favour of the plaintiff/appellant, i.e., Dal Chand and has mechanically decreed the case of the petitioner.
11. A perusal of the judgement passed by First Appellate Court further shows that while deciding the appeal, the First Appellate Court has not considered whether the suit instituted by Dal Chand was barred by Section 49 of Act, 1953 and whether Case No. 28/1992 instituted by Dal Chand was maintainable in light of the arguments of his counsel as recorded in the judgement of First Appellate Court that the disputed plot was illegally allotted to Seesram by the concerned Land Management Committee. The said issue was necessary to be considered as any allotment made in favour of a person can be cancelled only by the concerned Collector under Section 198(4) of Act, 1950 and the legality of such allotment cannot be considered in proceedings under Section 229-B of Act, 1950. In its judgement, the First Appellate Court also failed to consider the effect of different evidences considered by the Trial Court while dismissing Case No. 28/1992 instituted by Dal Chand. The Second Appeal Court i.e. the Board of Revenue was empowered to hear the Second Appeal instituted by Booti Singh i.e. the predecessor in interest of petitioners, only on substantial question of law and while deciding the aforesaid appeal the Second Appeal Court was bound to consider whether the First Appellate Court had exercised its power as provided in law. Unfortunately, the Second Appeal Court also failed to consider the aforesaid questions and mechanically dismissed the Second Appeal. In its impugned judgement, the Second Appeal Court has also not considered the effect of bar imposed by Section 49 of the Act, 1953 and the issue regarding maintainability of suit instituted by Dal Chand in view of the admission made by his counsel during the proceedings in First Appeal that disputed plots were allotted to Seesram, albeit, illegally.
12. In the circumstances, the judgements and orders dated 2.5.1995 and 12.10.1999 passed by First Appellate Court and Second Appeal Court are contrary to law and are hereby set aside. The matter is remanded back to the Commissioner, Meerut Division, Meerut to pass fresh orders in AppealNo. 132/1993-94 after considering the evidence produced by the parties. The Commissioner shall also consider whether Suit/Case No. 28/1992 instituted by Dal Chand was maintainable in view of Section 49 of Act, 1953 and Section 198(4) of Act, 1950. The Commissioner, Meerut Division, Meerut shall pass a reasoned order after giving an opportunity of hearing to the parties. The appeal shall be decided by the Court within four months from the date a certified copy of this order is produced before him by either of the parties. Till the decision of the appeal, the parties shall maintain status quo in respect of the disputed plots.
13. With the aforesaid directions, the writ petition is allowed.
Order Date :- 23.3.2018/Anurag/-