# Babu Khan & Ors v. Rajendra Pratap

- **Citation:** (2023) 3 ILRA 1041
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-03
- **Case number:** Second Appeal No. 947 of 1995
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-khan-ors-v-rajendra-pratap-49768
- **Pages:** 10

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Section 100, - U.P. Zamindari Abolition
and Land Reforms Act, 1950 - Sections
189(C), 193, 209, 210, 229-B & 341 -
Guardianship and Wards Act, 1890 -
Sections 4(2), 4(3) & 30 - Limitation Act,
1963 - Sections 6 & 7, Entry - 65 of
Schedule - 1 - Second Appeal arising out of a
Suit - suit property - owner of suit property in
question died - leaving behind his widow and his
five sons - widow also died - eldest of sibling
took care of the interests of his brothers who
were all minors at that time executed a sale
deed of suit property in year 1977 being defacto guardian on behalf of all the minor also in
favour of plaintiff/respondent - name of plaintiffrespondent was duly mutated in year 1982 in
the revenue records and no objections against
same were filed by defendant-appellants first
set, even after attaining majority - On becoming
major, defendant-appellant No. 1 and 2 filed a
suit under Section 229-B of UP Act, 1950,
challenging sale deed dated - during pendency
of said suit, defendant-appellant first set
executed another sale deed in year 1988, for
sale of their share in property in question, in
favour of second set of defendant-appellants -
being non-prosecution, Suit u/s 229-B was
dismissed - plaintiff/respondent's suit was
decreed - first Appeal dismissed - court finds
that, First Appellate Court have given a
categorical
finding
that
plaintiff-purchaserrespondent been in possession of property in
dispute and ex-parte injunction granted plaintiff
initially by order continued throughout suit -
Plaintiff/respondents-purchaser were throughout
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
in possession of property in dispute since
sale deed and defendant appellants first set
after
becoming
major
never
initiated
proceedings for possession of property in
dispute

-
Limitation
for
initiating
proceedings for recovery of possession, at
best, expired in year 1994 on expiry of 12
years - as per joint reading of section
189©, 193, 209 and 210 of UP Act, 1950
rights of defendants-respondents first set
from
the
property
in
dispute
stand
extinguished and the plaintiffs-respondents
have become Bhumidhar - both set of
appellants have lost their rights even
presuming they had any either under the
Mohammedan Law or by virtue of sale deed
of 1988 - no relief in the present second
appeal can be granted, hence dismissed.
(Para -16, 17, 19, 20)

Second Appeal Dismissed. (E-11)

List of Cases cited:

## Text

3 All. Babu Khan & Ors. Vs. Rajendra Pratap
1041

14. Keeping in view the fact that
petitioner no. 2 is resident of Bulandshahar
and the respondent no. 3 and her son are
settled in Ghaziabad, it is directed that
respondent no. 3 and her surviving son
(uncle of the child), will have visitation
rights to the corpus Viraj Bhati (petitioner
no. 1) for a period of one year at the place
of petitioner no. 2, twice in a month on a
Sunday between 11:00 am to 5:00 pm,
subject to prior arrangement made with
petitioner no. 2 telephonically. Petitioner
no. 2 will facilitate the meeting between the
child and his grandmother and uncle
accordingly and will not create any
impediment
therein.
Accordingly
this
Habeas Corpus Writ Petition is allowed.

15. Therefore, it is directed that
respondent no. 3 shall handover custody of
petitioner no. 1 to petitioner no. 2 (mother
of the corpus) within 30 days from the date
of production of a certified copy of this
order, at the residence of petitioner no. 2.
Keeping in view the interest of child, both
the parties shall cooperate with each other
to ensure direction of this Court.

16. It is further directed that in case
respondent no. 3 or her family members
adopt any procrastinating approach in
handing over custody of child to petitioner
no. 2 (mother) or refused to transfer the
custody of child, matter would be reported
by petitioner no. 2 to S.S.P., Ghaziabad and
C.J.M., Ghaziabad, who shall ensure
compliance of this order and shall ensure
the custody of child to petitioner no. 2 on
production of a copy of this order before
them.
----------
(2023) 3 ILRA 1041
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Second Appeal No. 947 of 1995

Babu Khan & Ors. ...Appellants
Versus
Rajendra Pratap ...Respondent

Counsel for the Appellants:
Sri S.N. Srivastava, Sri Naresh Chandra Tipathi

Counsel for the Respondent:
Sri J.H. Khan, Sri W.H. Khan, Sri Gulrez Khan

Civil Law - Civil Procedure Code, 1908 -
Section 100, - U.P. Zamindari Abolition
and Land Reforms Act, 1950 - Sections
189(C), 193, 209, 210, 229-B & 341 -
Guardianship and Wards Act, 1890 -
Sections 4(2), 4(3) & 30 - Limitation Act,
1963 - Sections 6 & 7, Entry - 65 of
Schedule - 1 - Second Appeal arising out of a
Suit - suit property - owner of suit property in
question died - leaving behind his widow and his
five sons - widow also died - eldest of sibling
took care of the interests of his brothers who
were all minors at that time executed a sale
deed of suit property in year 1977 being defacto guardian on behalf of all the minor also in
favour of plaintiff/respondent - name of plaintiffrespondent was duly mutated in year 1982 in
the revenue records and no objections against
same were filed by defendant-appellants first
set, even after attaining majority - On becoming
major, defendant-appellant No. 1 and 2 filed a
suit under Section 229-B of UP Act, 1950,
challenging sale deed dated - during pendency
of said suit, defendant-appellant first set
executed another sale deed in year 1988, for
sale of their share in property in question, in
favour of second set of defendant-appellants -
being non-prosecution, Suit u/s 229-B was
dismissed - plaintiff/respondent's suit was
decreed - first Appeal dismissed - court finds
that, First Appellate Court have given a
categorical
finding
that
plaintiff-purchaserrespondent been in possession of property in
dispute and ex-parte injunction granted plaintiff
initially by order continued throughout suit -
Plaintiff/respondents-purchaser were throughout
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
in possession of property in dispute since
sale deed and defendant appellants first set
after
becoming
major
never
initiated
proceedings for possession of property in
dispute

-
Limitation
for
initiating
proceedings for recovery of possession, at
best, expired in year 1994 on expiry of 12
years - as per joint reading of section
189©, 193, 209 and 210 of UP Act, 1950
rights of defendants-respondents first set
from
the
property
in
dispute
stand
extinguished and the plaintiffs-respondents
have become Bhumidhar - both set of
appellants have lost their rights even
presuming they had any either under the
Mohammedan Law or by virtue of sale deed
of 1988 - no relief in the present second
appeal can be granted, hence dismissed.
(Para -16, 17, 19, 20)

Second Appeal Dismissed. (E-11)

List of Cases cited:

1. Madhegowda (D) by L.Rs. Vs Ankegowda (D)
by L.Rs. & ors., 2001 (45) ALR 820,

2. Mushamat Anto Vs Reoti Kaur, AIR 1936
Allahabad 837,

3. Meethiyan Sidhiqu Vs Muhammed Kunju
Pareeth Kutty & ors., AIR 1996 SC 1003,

4. Mohd. Amin & ors. Vs Vakil Ahmad & ors.,
AIR 1952 SC 358

5. Prem Singh & ors. Vs Birbal & ors., (2006) 5
SCC 353,

6. Utha Moidu Haji Vs Kuningarath Kunhabdullah
& Ors., ( 2007) 14 SCC 792,

7. Mashkoor Alam Vs Kumari Amir Bano & Ors.,
2014 (125) RD 352,

8. Murugan & Ors. Vs Kesava Gounder (dead) &
Ors., AIR 2019 SC 2696,

9. Bailochan Karan Vs Basant Kumari Naik &
Anr., (1999) 2 SCC 310,

10. Lalloo & Ors. Vs Board of Revenue & ors.,
2019 (12) ADJ 33,
11. Ram Sunder Vs Board of Revenue, 1984
AWC 696,

12. Ram Chander Dubey and Ors. Vs The
Deputy Director of Consolidation, & ors., AIR
1978 All 157,

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. By the present second appeal,
appellants are challenging the judgment
and order dated 24.04.1995 passed by the
learned Additional District Judge, Karvi in
Civil Appeal No. 5 of 1990 (Babu Khan
and others vs. Atul Prakash) and judgment
and order dated 30.04.1990 passed by
learned Munsif-Magistrate, Karvi, Banda in
Original Suit No. 79 of 1988 (Atul Prakash
vs. Babu Khan and others).

2. The suit was filed by the plaintiffrespondent Atul Prakash for cancellation of
sale deed dated 28.04.1988 executed by
defendant-appellant nos. 1 to 3 in favour of
defendant-appellant nos. 4 to 8 and for
permanent
injunction
restraining
the
defendants-appellants from raising any
construction or interfering in possession of
the plaintiff over the property in dispute.
The Trial Court at the very initial stage, on
16.05.1988, granted an injunction order
restraining the defendants-appellants from
creating any hindrances. The suit was
decreed and the appeal against the same
was dismissed.

3. Brief facts of the case are that
Rustam Khan was the owner of the
property in question. He, unfortunately,
died in the year 1964 leaving behind his
widow and five sons, namely, Ramzan
Khan (eldest), Nazir Khan, Babu Khan,
Chand Khan and Nasim Khan. The widow
of Rustam Khan also died sometime later,
after which Ramzan Khan the eldest of the
siblings took care of the interests of the
3 All. Babu Khan & Ors. Vs. Rajendra Pratap
1043
brothers, who were all minors at that time.
Ramzan Khan and Nazir Khan executed
sale deed dated 28.07.1977 of the property
in dispute on their behalf as well as in their
capacity as de-facto guardian on behalf of
remaining three minor brothers (first set of
defendant-appellant) in favour of plaintiffrespondent. By entry dated 13.10.1982,
name of the plaintiff-respondent was duly
mutated in the revenue records and no
objections against the same were filed by
defendant-appellants first set, even after
attaining majority. In 1987, on becoming
major, defendant-appellant No. 1 and 2
filed a suit under Section 229B of the Uttar
Pradesh Zamindari Abolition and Land
Reforms Act, 19501 challenging the sale
deed dated 28.07.1977. Written statements
were also filed. However, during the
pendency of the said suit, defendantappellant first set executed a sale deed
dated 28.04.1988, for the sale of their share
in the property in question, in favour of the
second set of defendant-appellants (some of
them have been substituted by their legal
representatives in the proceedings). They
also permitted the proceedings initiated
under Section 229-B to be dismissed for
non-prosecution. Respondent herein filed
the present Original Suit No. 79 of 1988
against both sets of appellants praying for
cancellation of the said sale deed dated
28.04.1988 and for relief of permanent
prohibitory
injunction
restraining
defendants-appellants from interfering in
his peaceful possession over the property in
question. The suit was filed on the ground
that the demised property was already sold
by defendant-appellant first set in favour of
plaintiff-respondent by sale deed dated
28.07.1977. The suit was decreed in favour
of the plaintiff-respondent. Aggrieved by
the judgment and decree dated 30.04.1990,
defendants-appellants filed a first appeal,
which was also dismissed on 24.04.1995.
Thus, they preferred present second appeal.

4. Learned counsel for the appellants
assails the judgment of both Courts on the
ground, that, Ramzan Khan being a brother
was not legal or de-jure guardian of
defendant-appellant first set under the
Mohammedan law, therefore, the sale deed
dated 28.07.1977 executed by him for the
sale of shares of his minor brothers is void.
Since the sale deed dated 28.07.1977 is
void to the extent of the shares of the
defendant-appellant first set, therefore
ignoring
its
consequences,
defendantappellant first set could legally execute the
sale deed dated 28.04.1988 in favour of
defendant-appellants second set for sale of
their shares in the property. In such
circumstances, plaintiff-respondent never
had any legal claim to the 3/5th of the
property, sold vide sale deed dated
28.07.1977, and thus suit was liable to be
dismissed to the said extent.

5. Learned counsel for the defendantsappellants further submits that both the
courts
have
also
wrongly
applied
provisions of the U.P. Z.A. & L.R. Act. As
the first set of defendants-appellants are
adherents of Islam, therefore, the aforesaid
statute has no applicability in this case. In
support of his arguments, learned counsel
for the defendant-appellants has relied upon
the following judgments:

(i) Madhegowda (D) by L.Rs. vs.
Ankegowda (D) by L.Rs. and others2

(ii) Mushamat Anto vs. Reoti Kaur3

(iii)
Meethiyan
Sidhiqu
vs.
Muhammed Kunju Pareeth Kutty and
others4

(iv) Mohd. Amin and others vs.
Vakil Ahmad and others5
1044 INDIAN LAW REPORTS ALLAHABAD SERIES

(v) Prem Singh and others vs. Birbal
and others6

6. Learned counsel for the plaintiffrespondent supports the judgments of both
 the Trial Court and the First Appellate
Court. He submits that the land in dispute
being agricultural land has to be governed
by the provisions of the Guardianship and
Wards Act, 18907 and U.P. Z.A. & L.R.
Act and Mohammedan law has no
applicability in the present dispute. He
further submits that it was necessary for the
first set of appellants to get the sale deed
dated 28.07.1977 cancelled. He supports
the finding of the Court regarding estoppel
by relying on Sections 4(2), 4(3) and 30 of
the Guadianship and Wards Act, 1890 and
Article 60 of the Schedule to the Limitation
Act, 1963. He argues that even the
youngest of the three brothers attained
majority in the year 1982 and, therefore,
they should have filed a suit for getting the
sale deed dated 28.07.1977 cancelled, no
later than the year 1985. But the suit under
Section 229-B of U.P. Z.A. & L.R. Act was
only filed in 1987 and that too was not
contested properly, thus dismissed for
default and never restored. Thus, now they
are estopped from challenging the sale
deed. In support of his arguments, learned
counsel for the plaintiff-respondents has
placed
reliance
upon
the
following
judgments:

(i)
Utha
Moidu
Haji
vs.
Kuningarath Kunhabdullah & Ors.8

(ii) Mashkoor Alam vs. Kumari
Amir Bano & Ors.9

(iii) Murugan & Ors. vs. Kesava
Gounder (dead) & Ors.10

(iv) Bailochan Karan vs. Basant
Kumari Naik & Anr.11

(v) Lalloo & Ors. vs. Board of
Revenue & Ors.12

7. Learned counsel for the appellants
presses for
the following substantial
questions of law:

(i)Whether
in
the
facts
and
circumstances of the case elder brother
was competent to alienate the interests of
the defendant-appellant first set, who were
minor brothers?

(ii)Whether Muslim minors, whose
property is sold by a de-facto but not dejure guardian by executing a sale deed on
their behalf during their minority, need to
get the sale deed cancelled by filing a civil
suit on attaining majority or is the sale
deed void, non-est in law, and therefore the
minor need not even repudiate it?

(iii)Whether the First Appellate Court
erred in applying the U.P. Z.A. & L.R. Act
and law on adverse possession vis-a-vis the
Muslim Personal law in the facts and
circumstances of the present case, where
the first set of appellants are adherent of
Islam?

8. Heard counsels for the parties and
perused the record with their assistance.

9. Since both the substantial question
of law number one and two deal with
similar issues therefore they are being
decided together. The learned Trial Court
has framed issue no. 2 and 3 with regard to
the eligibility of Ramzan Khan for
transferring the shares of his minor brothers
vide sale deed dated 28.07.1977. Trial
Court has held that since the mother of the
defendant-appellant first set died, therefore,
Ramzan Khan aged about 21 years at that
time, as the eldest brother, assumed the role
of de-facto guardian under Mohammedan
law and was also competent to sell the
properties of his minor brothers. The same
was affirmed by the First Appellate Court.
the First Appellate Court has applied the
3 All. Babu Khan & Ors. Vs. Rajendra Pratap
1045
law settled by this Court in Ram Sunder vs.
Board of Revenue13 and held that if a
minor fails to challenge the sale deed on
attaining majority the sale deed was
binding on the minor. It has further held
that even if the sale deed dated 28.07.1977
was void to the extent of the shares of the
defendant-appellant first set, they required
a declaration to that effect from Court. In
Ram Sunder (Supra) facts were that a
hindu mother acting as a guardian sold her
minor child's property without describing
herself as a guardian. On attaining
majority, the son failed to challenge the
sale deed and it was held that the sale is
now binding on him. Both the Trial Court
and the First Appellate Court have held that
since the mutation proceedings were over
by 13.10.1982, and Babu Khan, one of the
defendant-appellant from the first set, had
become major by then and did not object to
the mutation of names of plaintiffrespondent
in
the
revenue
records,
therefore it must be understood that
defendant-appellants first set have ratified
the sale deed dated 28.07.1977.

10. So far as the judgment relied upon
by Trial Court and Appellate Court is
concerned, Ram Sunder (supra) is a case
arising out of Hindu Law and has no
applicability to the present facts where
parties are governed by Mohammadan
Law. With regard to other case laws relied
upon by counsel for plaintiff-respondent in
the case of Utha Moidu Haji (supra), in
paragraph 14 it is clearly stated that no
issue was ever framed with regard to the
status of the guardianship and eligibility of
the acting guardian. Therefore, it is also
distinguishable from the facts of the present
case and of no help to the plaintiffrespondent. The judgment in the case of
Murugan (supra) is also distinguishable
from the facts of the present case as in the
said case the issue was with regard to
limitation in case a minor dies before
attaining majority and also in the said case
the parties were governed by the Hindu
Minority and Guardianship Act, 1956. The
plaintiff-respondent also can not claim any
benefit from Bailochan Karan (supra) and
Lalloo (supra), as both these cases pertain
to parties belonging to non-Muslim faith.

11. Under Muslim personal law,
interests of minor is well protected. Muslim
Law distinguishes between the status of a
de facto guardian and a legal/de jure
guardian. Any decision with regard to the
devolution of the property of a Muslim
minor can be only by a legal guardian and
that too only on limited grounds. The law
in this regard is well settled and suffice
would to refer to the paragraph 5 of the
Meethiyan Sidhiqu (supra), where the
Supreme Court held:

"5.
Mulla's
"principle
of
the
Mohammadan Law" [Nineteenth Edition]
by Justice M. Hidayatullah, former Chief
Justice
of
this
Court
and
Arshad
Hidayatullah, deals with legal property
guardians of a muslim minor in Section
359. In the order, only father, executor
appointed by the father's will, father's
father and the executor appointed by the
will of the father's father, are legal
guardians of property. No other relation is
entitled to be the guardian of the property
of a minor as of right; not even the mother,
brother or uncle but the father or the
paternal grand-father of the minor may
appoint the mother, brother of uncle or any
other person as his executor or executrix of
his will in which case they become legal
guardian and have all the powers of the
legal guardian as defined in Sections 362
and 366 of the above Principles. The Court
may also appoint any one of them as
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
guardian of the property of the minor in
which case they will have all the powers of
a guardian appointed by the court, as
stated in Sections 363 to 367."

In light of the law settled both the First
Appellate Court and the Trial Court are
wrong in holding that being a de facto
guardian of the Muslim minors, their
brother Ramzan Khan could execute a valid
sale deed on their behalf. Admittedly there
is no appointment of guardian of minors
under the Guardianship and Wards Act.

12. It has long been settled by a Full
Bench of this Court in Mushamat Anto
(supra), that any transfer of property by a
de facto guardian of a Muslim minor is
void and non-est, it cannot be ratified by
the minor upon his attainment of majority.
Even when the transaction has been ratified
by the minor after he has attained majority,
it can subsequently be challenged by him or
by his transferees. The relevant paragraph
of the Mushamat Anto (supra) reads;

"Two questions have been referred to
this Full Bench by the Bench before which
the case came up for disposal. They are as
follows:

(1) Can a transaction amounting to an
alienation of an immovably property
belonging to a Muhammadan minor by the
de facto guardian of the minor be ratified
by the latter upon his attainment of
majority?

..........

Dealing with the third proposition,
their Lordships examined the text of the
Hedayah and the Fatwa-i-Alamgiri and
came to the conclusion that the Hanafi
doctrine
relating
to a
sale
by
an
unauthorised person remaining dependent
on the sanction of the owners refers to a
case where such owner is sui juris
possessed of the capacity to give the
necessary sanction to make the transaction
operative, and that they did not find any
reference in these doctrines relating to
fazuli sales, so far as they appear in the
Hedayah or the Fatwa-i-Alamgiri, to
dealings with the property of minors by
persons who happen to have charge of the
infants and their property, in other words,
the de facto guardians. In their Lordships'
opinion the doctrine about fazuli sales
appears clearly to be based on the analogy
of an agent who acts in a particular matter
without authority, but whose act is
subsequently adopted or ratified by the
principal which has the effect of validating
it from its inception. The idea of agency in
relation to an infant is as foreign, their
Lordships conceived, to Mahomedan law
as to every other system.

.....

Our answer to the first question
referred to us is in the negative, as the
transaction being void there is no question
of ratification. The answer to the second
question is that there can be no valid
ratification and therefore there can be no
estoppel
on
account
of
any
such
ratification."

13. In light of the law settled by the Full
Bench of this Court, both the courts erred in
holding that once the mutation proceedings are
over with no objections from the defendantapellants, they are estopped from questioning
the validity of the sale deed dated 28.07.1977.
Instead, as per the Mushamat Anto (supra),
since there is no concept of subsequent
ratification of an illegal/void act under
Mohammedan law, it can be concluded that a
Muslim minor can not ratify a void ab initio
act after attaining majority, even if he wants to.

14. With regard to substantial
question
of
law
number
three
i.e.,
3 All. Babu Khan & Ors. Vs. Rajendra Pratap
1047
application of Muslim Law vis-a-vis U.P.
Z.A. & L.R. Act, the learned First
Appellate Court in its judgment has simply
brushed off the issue by saying that "I do
not want to enter into the controversy as to
whether Mohammedan personal law was
involved
or
the
U.P.Z.A.
Act
was
involved.". On the other hand, in its
judgment the First Appellate Court has also
dismissed the applicability of Full Bench
judgment of this court in the case of
Mushamat Anto (Supra), holding that the
said case is from before the enactment of
the U.P. Z.A. & L.R. Act, and is, therefore,
not applicable. The First Appellate Court
has also referred to the judgment of Ram
Chander Dubey and Ors. vs. The Deputy
Director of Consolidation, Deoria and
Ors.14 but did not state as to why the same
would not apply. In Ram Chander Dubey
(supra) this court in pargraphs 15 has held;

"15. Judged in the light of what has
been said above, it will be found that U. P.
Act I of 1951 does not crystallise or declare
the existing law upon the land tenure
system but deliberately departs from the
old law in respect of various matters. It
supersedes prior law and lays down the
whole of the law of succession, transfer,
bequest etc. Therefore, in cases governed
by the Act reference to the previous rule of
Hindu law or Mohammadan law cannot be
made as it is not permissible, but the Hindu
law can certainly be resorted to in respect
of matters for which no provision is made
in U. P. Act No. I of 1951. Matters saved
from the operation of the Act, of course,
continue to be governed by the personal
law to the extent the same is applicable.
The Act does not touch or affect the law of
joint family, hence the Hindu law continues
to operate in this matter."

15. Thus, personal law would apply
even to land covered by the provisions of
U.P. Z.A. & L.R. Act to the extent the same
is not ousted by U.P. Z.A. & L.R. Act.
There is no provision in U.P. Z.A. & L.R.
Act, contrary to the Mohammadan Personal
Law, that validates a sale deed by de facto
guardian of a muslim minor, which is void
ab initio and can not be ratified even on
attaining majority by the minor under
Mohammadan Law. Thus, the sale deed
dated 28.07.1977 executed by the de facto
guardian of minors is void to the extent of
share of minors.

16. Had the matter been only with
regard
to
the
personal
law
of
Mohammadan, it could be concluded with
the aforesaid, but, the provosions of the
U.P. Z.A. & L.R. Act are also applicable.
In present case, bhumidhars were minor
muslim boys whose agricultural land was
sold by de-facto guardian. There is no
dispute that the minors were ousted from
the property in dispute by the sale deed
dated 28.07.1977 executed in favour of
plaintiff-respondent. Both the Trial Court
and the First Appellate Court have given
specific finding of fact that the plaintiffrespondent is in possession of the property
in dispute since the date of sale deed.
Section 189(c), Section 193, Section 209
and Section 210 of the U.P. Z.A. & L.R.
Act deals with right of the bhumidhar who
stands dispossessed from his land. The said
sections reads:-

"189. Extinction of the interest of a
bhumidhar with transferable rights.--The
interest of a bhumidhar with transferable
rights in his holding or any part thereof
shall be extinguished--

..
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
(c) when he has been deprived of
possession and his right to recover
possession is barred by limitation."

Thus,
when
a
bhumidhar
with
transferable rights is deprived of his
possession and his right to recover
possession is barred by limitation, his right
in the holding is extinguished. Section 193
provides with consequences of extinction of
the interest. It reads:-

"193. Rights and liabilities of a sirdar
or asami on extinction of his interest.--
When the interest of a bhumidhar or asami
is extinguished he shall vacate his holding,
and he shall, except in cases where his
interest has extinguished under or in
accordance with the provisions of any law
for the time being in force relating to the
acquisition of land, have in respect of
removals of standing crops and any
construction existing on the holding the
same right as he would have upon
ejectment under the provisions of this Act."

209. Ejectment of persons occupying
land without title. - A person taking or
retaining possession of land otherwise
than in accordance with the provisions of
the law for the time being in force; and-

(a) where the land forms part of the
holding of a bhumidhar, [* * *] or asami
without the consent of such bhumidhar, [*
* *] or asami;

(b) where the land does not form part
of the holding of a bhumidhar, [* * *] or
asami without consent of the [Gaon
Sabha],

shall be liable to ejectment on the suit
in cases referred to in Clause (a) above of
the bhumidhar, [* * *] or asami concerned
and in cases referred to in Clause (b)
above of the [Gaon Sabha] [* * *] and
shall also be liable to pay damages.

[(2) To every suit relating to a land
referred to in Clause (a) of sub-section (1)
the State Government shall be impleaded
as a necessary party.]"

"210. Consequence of failure to the
suit under Section 209. - If a suit for
eviction from any land under Section 209
is not instituted by a bhumidhar or asami,
or a decree for eviction obtained in any
such suit is not executed within the period
of limitation provided for institution of
such suit or the execution of such decree,
as the case may be, the person taking or
retaining possession shall-

(a) where the land forms pail of the
holding of a bhumidhar with transferable
rights, become a bhumidhar with a
transferable rights of such land and the
right, title and interest of an asami, if any,
in such land shall be extinguished;

(b) where the land forms part of the
holding of a bhumidhar with nontransferable rights, become a bhumidhar
with non-transferable rights I and the
right, title and interest of an asami, if any,
in such land shall be I extinguished;

(c) where the land forms part of the
holding of an asami on behalf of the Gaon
Sabha, become an asami of the holding
from year to year.

[Provided
that
the
consequences
mentioned in Clauses (a) to (c) shall not
ensue in respect of any land held by a
bhumidhar or asami belonging to a
Scheduled Tribe.]"

17. Consequences under the civil law,
in case a person fails to take possession of
his property within the statutory period of
limitation is, that, the other side gets rights
as adverse possession. However, under the
above provisions of U.P. Z.A. & L.R. Act,
when a bhumidhar fails to file suit for
possession, against a person holding
possession of his bhumidhari land against
law and without his consent, within period
of
limitation
prescribed,
rights
of
3 All. Babu Khan & Ors. Vs. Rajendra Pratap
1049
bhumidhar from the land are extinguished
and the person holding possession becomes
bhumidhar. As per Section 341 of the U.P.
Z.A. & L.R. Act, provisions of the
Limitation Act are made applicable to
proceedings under the U.P. Z.A. & L.R.
Act, unless otherwise expressly provided.
Limitation for filing a suit for possession is
12 years as per entry 65 of Schedule I of
the Limitation Act. Since, it is admitted that
property sold belonged to minors, thus,
Section 6 and 7 of the Limitation Act
would come into play and the starting date
of period of limitation would be from the
date they become major. In the suit, all the
three minor brothers, namely, Chand Khan,
Babu Khan and Nisar Khan were made
defendants as major. None of them were
made party through any guardian. In
their written statement also it was not
claimed that any of them was minor.
Thus, admittedly in the year 1982, all
three brothers were major. Thus the
limitation for initiating proceedings for
recovery of possession, at best, expired
in the year 1994 on expiry of 12 years.
Sole proceedings which were initiated
under Section 229-B for declaration
and/or possession by the said brothers
were admittedly permitted by them to be
dismissed for want of prosecution. In his
oral statement Babu Khan admitted that
they never filed any application for
restoration. Till date, there is no claim
that those proceedings under Sectio 229B were restored or contested any further.
Thus, no proceedings were initiated for
possession by the brothers, as minors or
on becoming major, and the earlier filed
proceedings under Section 229 B of U.P.
Z.A. & L.R. Act were also permitted to
be dismissed for default. The Trial Court
as well as the First Appellate Court have
given a categorical finding that the
plaintiff-purchaser-respondent has been
in possession of the property in dispute
on
the basis of
sale deed dated
28.07.1977. The ex-parte injunction
granted in favour of plaintiff initially by
order
dated
16.05.1988
continued
throughout the suit.

19. From the above, it is clear that
the plaintiff respondents-purchaser were
throughout in possession of the property
in dispute since the sale deed dated
28.07.1977
and
the
defendantappeallants first set after becoming
major permitted the proceedings under
Section 229-B to be dismissed and never
initiated any other proceedings for
possession of the property in dispute.
Thus, as per joint reading of Section
189(c), Section 193, Section 209 and
Section
210,
rights
of
defendantsrespondents first set from the property in
dispute stand extinguished and the
plaintiffs-respondents
have
become
bhumidhar. Same is position with regard
to defendant-appellants second set who
purchased the property in dispute from
the defendant-appellants first set. They
also never took any proceedings for
possession at any stage whatsoever.
Thus, both sets of appellants have lost
any right in their favour, even presuming
they
had
any
either
under
the
Mohammedan law or by virtue of the
sale deed dated 28.04.1988, due to the
application of Section 189(c), Section
193, Section 209 and Section 210 of the
U.P. Z.A. & L.R. Act.

20. In the aforesaid circumstances
since appellants now do not have any
right in the property in dispute, no relief
in the present second appeal can be
granted to them. The second appeal is
dismissed.
----------
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 3 ILRA 1050
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ -C No. 31271 of 2022

Manish Shukla ...Petitioner
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar, Sri Chandrama Singh

Counsel for the Respondents:
C.S.C., Sri Dheeraj Kumar Dwivedi

CiviL Law - U.P. Revenue Code, 2006 -
Section 144 - Declaratory suit - Declaratory
suit dismissed without framing issue - Held - if
no issue has been framed on a question which
arises out of the pleading of the parties, the
Court cannot proceed to record a finding on that
point - judgment passed by the Trial Court
cannot be maintained on merit (Para 10)

Civil Law -U.P. Revenue Code, 2006-
Section 144 - Limitation - there is no limitation
for filing suit for declaration under Section 229 B
of U.P.Z.A. & L.R. Act (Para 12)

Constitution of India, 1950 -Article, 226
- Quashing of order - an order, which is
illegal, cannot be quashed or set aside in writ
jurisdiction, if quashing of it, results in
bringing on record another illegal order- if as
a result of quashing of an order, another
wrong and illegal order would be restored,
High Court under Article would refuse to
interfere with the impugned order which
appears to be quite proper equitable and just
order (Para 13)

Dismissed. (E-5)

List of Cases cited:

1. Babu Vs Mahaveer 2020 RD (140) 186
2. Kaniz Fatima & anr. Vs Shah Naim Ashraf AIR
1983 Allahabad 450

3. Pan Kumari Vs Board of Revenue, U.P. at
Allahabad & ors. 2005 (99) R.D. 529

4. Paras Nath Singh Vs Deputy Director of
Consolidation & ors. 1985 R.D. 71

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Counsel for the petitioner is
permitted to implead Upziladhikari, Kanpur
Nagar as respondent No.5 in the array of
parties during the course of day.

2. Heard Mr. Ajay Kumar, Counsel
for the petitioner, learned Standing Counsel
for the State-respondents and Mr. Dheeraj
Kumar Dwivedi for respondent No.4.

3. The instant petition has been filed
against the order of Board of Revenue
dated 26.4.2022, by which, the second
appeal filed by respondent No.4 has been
allowed setting aside the judgment of the
Courts below and proceeding of the suit has
been remitted back before the Trial Court to
decide the suit afresh after impleadment of
the Gaon Sabha.

4.

Counsel
for
the
petitioner
submitted that the suit under Section 144 of
the U.P. Revenue Code, 2006 filed by
respondent No.4 has been dismissed by the
Trial Court and the decree has been
maintained in first appeal but Appellate
Court has arbitrarily allowed the second
appeal and remitted the matter back before
the Trial Court for fresh trial. He further
submitted that suit for declaration filed by
respondent No.4 was rightly dismissed by
Trial Court and First Appellate Court as no
claim was raised during consolidation
operation. He further submitted that Second