Court No. - 11
Case :- WRIT - B No. - 3323 of 2007 Petitioner :- Satish Kuamr Singh & Others Respondent :- Board Of Revenue U.P. At Allahabad & Others Counsel for Petitioner :- V.K. Singh,M.N. Singh,Mahesh Narain Singh Counsel for Respondent :- C.S.C.,A.P. Srivastava,Anand Prakash Srivastava,Arun Kumar Gupta,Arvind Kumar Ii,Lallan Verma,Manish,P.K. Upadhaya,Rajesh Kumar,S.R. Sahai,Santosh Dwivedi,Siya Ram Sahu
Hon'ble Salil Kumar Rai,J.
Heard counsel for the petitioners, Standing Counsel representing respondent nos. 1, 2 and 3, Sri Santosh Dwivedi, Sri Punit Kumar Upadhaya, Sri Rajesh Kumar, Sri Vijay Kumar Singh & Sri Vishnu Singh, Advocates representing the contesting private respondents.
The facts of the case are that Bhonu Ram, Sonhu, Mewa, Sukkhu and Lurkhur were the sons of Bulli. The petitioners are the grandson of Bhonu Ram. Respondent nos. 4 to 16 are the heirs and legal representatives of Sonhu, Mewa, Sukkhu and Lurkhur. Sonhu and Mewa i.e. the predecessor in interest of respondent nos. 4, 10 and 11 instituted Case No. 500 of 1971 under Sections 229-B/176 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') against Bhonu, Sukkhu and Lurkhur claiming 1/5 share each in the suit property. The property specified as suit property in the plaint instituting the aforesaid case and relevant in the present writ petition are Plot Nos. 3/1, 14A, 14B, 28/1, 28/2, 29 and 30. The aforesaid case was necessitated because the name of Bhonu was recorded in the revenue records as the sole tenure holder of the aforesaid plots (hereinafter referred to as, 'disputed plots'). The Trial Court i.e. respondent no. 3 vide judgment and decree dated 9.3.1976 held Lurkhur i.e. the predecessor in interest of respondent no. 9 as the sole sirdar of Plot No. 28/2 and Bhonu to be the exclusive tenure holder of Plot No. 31/1. However, vide its judgment and decree dated 9.3.1976, the Trial Court held that so far as Plot Nos. 28/1, 14A, 14B, 29 and 30 were concerned, the name of Bhonu was recorded in the revenue records in representative capacity and the plaintiffs as well as defendants in the said case were co-tenure holders of the disputed plots and had 1/5 share each in the same. The findings regarding Plot No. 28/2 was recorded by the Trial Court on the basis of judgements dated 25.10.1945, 14.4.1948 and 17.4.1957 passed in proceedings instituted under Section 180 of the U.P. Tenancy Act, 1939 (hereinafter referred to as, 'Act, 1939') for eviction of Lurkhur. The findings regarding Plot Nos. 29 and 30 were recorded by the Trial Court on the basis of statements given by Bhonu himself in Case No. 184 registered under Section 180 of the Act, 1939 and instituted by one Bhawani Devi against Bhonu, Sonhu, Mewa, Sukkhu and Lurkhur i.e. all the five brothers. In the aforesaid case, Bhonu Ram had appeared as a witness and had admitted that all the five brothers were in joint possession of the suit property involved in Case No. 184. Regarding Plot Nos. 14A and 14B, the Trial Court relied on a sale deed dated 2.9.1953 allegedly executed by one Hasmat Ullah in favour of all the five brothers i.e. the plaintiffs and defendants in Case No. 500 of 1971 and on the statement of Bhonu Ram recorded on 23.9.1972 that the plaintiffs and defendants constituted a joint family and till 20 years back he was the Karta of the joint family.
Similarly, regarding Plot No. 28/1, the Trial Court relied on the judgments delivered in Case No. 98 of 1951 under Section 59 of the Act, 1939 and in Case No. 103 of 1947 showing that Lurkhur i.e. the predecessor in interest of respondent no. 9 was given possession of the aforesaid plots. Apart from aforesaid document and evidence, the Trial Court also relied on the statement of Bhonu Ram recorded on 23.9.1972 admitting that he was the Karta of the joint family consisting of plaintiffs and defendants till 20 years back. Against the judgment and decree dated 9.3.1976 passed by the Trial Court, Bhonu Ram filed an appeal under Section 331 of the Act,1950 which was numbered as Appeal No. 109 of 1976 and was dismissed by respondent no. 2 vide its judgment and order dated 14.4.1978. Subsequently, Bhonu Ram filed a second appeal before the Board of Revenue, Uttar Pradesh at Allahabad i.e. respondent no. 1 which was numbered as Second Appeal No. 106 of 1977-78. Initially, the said appeal was dismissed as abated by respondent no. 1 vide judgment dated 2.11.1993. The judgment dated 2.11.1993 passed by respondent no. 1 was subsequently set-aside by this Court vide its judgment and order dated 5.7.2004 passed in Civil Misc. Writ Petition No. 43180 of 1993 and the matter was remanded back to respondent no. 1 for a fresh decision on the appeal. Respondent no. 1 vide judgment and order dated 16.11.2006 dismissed Second Appeal No. 106 of 1977-78 on the ground that no substantial questions of law were involved in the said appeal. The judgments and order dated 16.11.2006 and 14.4.1978 passed by respondent nos. 1 and 2 and the judgment and decree dated 9.3.1976 passed by respondent no. 3 have been challenged in the present writ petition.
It has been contended by counsel for the petitioners that in its judgment and decree dated 9.3.1976, the Trial Court has committed an error apparent on the face of record by relying on the alleged sale deed dated 2.9.1953 allegedly executed by Hasmat Ullah in favour of all five brothers, i.e. the plaintiffs and defendants, even though the said sale deed was denied by Bhonu Ram and was not proved by the plaintiffs in the Trial Court. It has been further argued by counsel for the petitioner that the findings recorded by the Trial Court in its impugned judgment dated 9.3.1976 are contrary to records as it was established by the evidence on record that Bhonu Ram was the sole tenure holder of the disputed plots.
I have considered the argument of counsel for the parties and also perused the records.
It is true that the findings of the Trial Court regarding Plot Nos. 14A and 14B are based on the alleged sale deed dated 2.9.1953 allegedly executed by Hasmat Ullah in favour of all five brothers i.e. the plaintiffs and defendants. However, it is also evident that the finding of the Trial Court regarding Plot Nos. 14A and 14B have been recorded not only on the basis of alleged sale deed dated 2.9.1953 but also on the basis of statement of Bhonu Ram recorded on 23.9.1972 wherein he had admitted that the plaintiffs and defendants i.e. all the five brothers named above constituted a joint family and Bhonu Ram was the Karta of the aforesaid joint family till 20 years back. In the aforesaid circumstances, assuming that the alleged sale deed dated 2.9.1953 was not proved by the plaintiffs in the Trial Court, the findings of the Trial Court regarding Plot Nos. 14A and 14B are not vitiated in as much as the Trial Court has given an additional valid reason to record the said findings. Apart from aforesaid, the findings of the Trial Court regarding Plot Nos. 28/2, 28/1, 29 and 30 are based on previous judgments of different courts passed under the Act, 1939, the memorandum of possession showing possession by Lurkhur over Plot No. 28/1, the admission of Bhonu Ram in Case No. 184 instituted under Section 180 of the Act, 1939 regarding Plot Nos. 29 and 30 and the deposition of Bhonu Ram recorded on 23.9.1972 wherein he had admitted that he was the Karta of a joint family consisting of plaintiffs and defendants till 20 years back. In the aforesaid circumstances, the argument of counsel for the petitioner that the judgment and decree dated 9.3.1976 passed by the Trial Court is vitiated by error of law apparent on the face of record has no merit and is rejected. The findings of the courts below are based on documentary and oral evidence on record. There is no perversity in the findings recorded by the courts below in their judgments dated 9.3.1976, 14.4.1978 and 16.11.2006. The findings recorded by the courts below are findings of fact and not amenable to examination by this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India.
The writ petition lacks merit and is hereby dismissed.
Order Date :- 24.4.2018 Satyam