# Chaudhary Chandan Singh v. State of U.P. and others

- **Citation:** (2005) 2 ILRA 831
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-30
- **Case number:** Civil Misc. Writ Petition No. 45747 of 2000
- **Bench:** Janardan Sahai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chaudhary-chandan-singh-v-state-of-u-p-and-others-40549
- **Pages:** 5

## Headnote

Sri Anuj Kumar, A.S.C.
Sri Radhey Shyam
Sri H.R. Misra
Sri Treveni Shanker
Smt. Sarita Dubey

U.P.Z.A. & L.R. Act 1956-Section 18, 229B(4), 209- Limitation for filing suit
ancestors of petitioner recorded 1281F
and
1320F
to
1359
F-
continuous
possession established-after the date of
vasting became Bhumidhar-No limitation
for institution of Suit except the land
covered under Section 189-if already
dispossessed-Suit shall be filed under
Section 209.

Held: Para 5

The rule is an exception to the general
rule that limitation bars the remedy but
does not extinguish the right. If however
a person is in possession his right can
not be extinguished unless the case is
covered by Clauses (a) (aa) and (b) of
Section 189. He can therefore seek a
declaration of his right at any point of
time. If a person has been dispossessed
he would have to institute a suit under
Section
209
U.P.Z.A./
&
L.R.
Act.
Appendix III provides the period for
limitation for filing a suit under Section

## Text

2 All] Chaudhary Chandan Singh V. State of U.P. and others 831

In the case of Nand lal (supra) the
Court observed as follows:-

"The Apex Court was only clarifying
that no fresh licence should be granted in
violation of the provisions of the Forest
Conservation Act, 1980. It did not
prohibit that licence to operate saw mills
should not be granted on any condition."

22. The decision of this Court in the
case of Nand Lal have also not taken note
of the subsequent orders/directions of the
Supreme Court in the case of T.N.
Godavaraman Thirumulkpad (supra).

23. In the present case the licence of
the saw mill of the petitioner had not been
renewed prior to 4th March, 1997. The
directions of the Supreme Court make it
obligatory
in
such
cases,
for
the
applicants to place their application
before
the
Central
Empowered
Committee. This is precisely what has
been observed in the order of the
Regional Director.

24. Such being the position, there is
no infirmity in the order dated 6th April,
2005 passed by the Regional Director
rejecting the application filed by the
petitioner for grant of saw mill licence.

25. The writ petition is, accordingly,
dismissed.
 Petition dismissed.
----------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2005

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Civil Misc. Writ Petition No. 45747 of 2000

Pan Kumari

...Petitioner
Versus
Board of Revenue and others

 ...Respondents

Counsel for the Petitioner:
Sri G.N. Verma
Sri R.C. Singh
Sri S.D. Pandey

Counsel for the Respondents:
Sri Anuj Kumar, A.S.C.
Sri Radhey Shyam
Sri H.R. Misra
Sri Treveni Shanker
Smt. Sarita Dubey

U.P.Z.A. & L.R. Act 1956-Section 18, 229B(4), 209- Limitation for filing suit
ancestors of petitioner recorded 1281F
and
1320F
to
1359
F-
continuous
possession established-after the date of
vasting became Bhumidhar-No limitation
for institution of Suit except the land
covered under Section 189-if already
dispossessed-Suit shall be filed under
Section 209.

Held: Para 5

The rule is an exception to the general
rule that limitation bars the remedy but
does not extinguish the right. If however
a person is in possession his right can
not be extinguished unless the case is
covered by Clauses (a) (aa) and (b) of
Section 189. He can therefore seek a
declaration of his right at any point of
time. If a person has been dispossessed
he would have to institute a suit under
Section
209
U.P.Z.A./
&
L.R.
Act.
Appendix III provides the period for
limitation for filing a suit under Section
209. It would follow therefore that a suit
under Section 229-B would be barred by
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
832
limitation
the
bhumidar
is
out
of
possession and his right to file a suit
under
Section
209
is
barred
by
limitation.
Case law discussed:
1985 RD 444 relied on

(Delivered by Hon'ble Janardan Sahai, J.)

1. A suit under Section 229-B of the
U.P. Zamindari Abolition and Land
Reforms
Act
was
filed
by
the
plaintiffs/respondents
Kailash
Nath
Tewari, Surya Mani Tewari and Chandra
Mani Tewari against the Gaon Sabha. The
petitioner Pan Kumari was also impleaded
in the suit on an application filed by her.
The case of the petitioner is that the
ancestors of the petitioner were recorded
in 1281-F and from 1320 fasali to 1359
fasali and the petitioners are in possession
over the disputed land of which they were
grove-holders on the date of vesting and
consequently they became Bhumidhar
under Section 18 of the U.P. Zamindari
Abolition and Land Reforms Act. The suit
was contested by the Gaon Sabha and by
the petitioner. The trial court decreed the
suit. Against the decree two appeals were
filed one by the Gaon Sabha and the other
by the petitioner. Both the appeals were
dismissed by the Commissioner. Two
second appeals were filed. The Board of
Revenue dismissed both the appeals.
Against the order of the Board of
Revenue a writ petition was filed by the
Gaon Sabha numbered as Civil Misc.
Writ Petition No. 50461 of 2000, which
was also dismissed as withdrawn. The
present writ petition has been filed by Pan
Kumari.

2. I have heard Sri R. C. Singh,
learned counsel for the petitioner and Sri
Radhey Shyam, learned counsel for the
respondents.

3. It is submitted by Sri R.C. Singh
that the suit filed by the plaintiffs/
respondents was barred by Section 49 of
the Consolidation of Holdings Act in as
much as no objection was raised in the
consolidation
proceedings
by
the
plaintiffs/respondents.
The
other
submission is that the suit is barred by
limitation. On the question that the suit
was
barred
by
Section
49
of
Consolidation of Holdings Act the finding
recorded by the trial court is that on the
date of the publication of the notice under
Section 9 of the Consolidation of
Holdings Act the plaintiffs/respondents
were minors. The appellate court also
affirmed the said finding. Sri R.C. Singh
submitted that from the reading of the
orders passed by the trial court and the
appellate court it is clear that there is no
specific finding upon the point of
minority of the plaintiffs/respondents,
which they were required to record in
view of the directions in an earlier writ
petition No. 41280 of 1996. I have
examined the judgement of the trial court.
It appears that before the trial court the
plaintiffs/respondents had filed evidence
showing the age of the plaintiffs. In the
passport the date of birth of Chandra
Mani Tewari is 25.9.1963 and in the High
School Certificate of Kailash Nath Tewari
his date of birth is 13.9.1958 and of Sruya
Mani
Tewari
in
his
High
School
certificate is 25.8.1948. Oral evidence on
behalf of the plaintiffs/respondents was
also adduced. The trial court found that
the documentary evidence filed by the
plaintiffs/respondents was unrebutted. In
effect this is a finding of minority as the
trial court found that the plaintiff's
evidence of minority was unrebutted. The
appellate court has affirmed the finding
that
the
plaintiffs/respondents
were
2 All] Pan Kumari V. Board of Revenue and others 833
minors and consequently they could not
file the objections within the time
permissible under Section 9 of the
Consolidation of Holdings Act. Sri
R.C.Singh was unable to refer to any
document
filed
by
the
defendant/petitioner in the trial court or in
the Ist Appellate Court regarding the age
of the plaintiffs/respondents. He however
submitted that in the Board of Revenue an
application for additional evidence was
filed by the petitioner in which certain
documents including C.H. Form 11
showing Surya Mani as major and
guardian of the other plaintiffs were
sought to be filed but the Board of
Revenue did not pass any order on that
application. In reply it has been stated in
para 19 of the counter affidavit that the
appeal was heard by the Board on
6.9.2000 and no such application was
pressed or filed until the judgment on
21.9.2000. According to the respondents
even the court fee stamps on the
application have not been cancelled,
which would indicate that the application
was never filed. In rejoinder affidavit the
averments made in the counter affidavit
have been denied. In C.H. Form 11 copy
of which has been filed in this petition
there is an entry showing Kailash Nath
Tewari the plaintiff as aged 6 years
(minor) and Chandra Mani Tewari as
aged 5 years (minor) whereas Surya Mani
Tewari is shown as major and guardian of
the minors.

4. Sri Radhey Shyam, learned
counsel for the respondents submitted that
the Board of Revenue had no occasion to
pass any order on the application under
Order 41 Rule 27 because the same was
never
pressed
and
it
was
filed
subsequently after the arguments were
over. There is a dispute upon this fact.
The point does not find mention in the
order of the Board of Revenue. Ordinarily
it would be treated that all the points that
were raised before the Board of Revenue
were considered by it. There is no
affidavit of the counsel who argued the
case before the Board of Revenue that the
application under Order 41 Rule 27 was
pressed. That apart in the face of the
direct evidence in the nature of the High
School Certificate that was available on
the record not much weight can be
attached to the entry in C.H. Form 11.
The finding on the question of minority
recorded by the authorities below is a
finding of fact. No ground for interference
has been made out.

5. It is submitted by Sri Radhey
Shyam,
learned
counsel
for
the
respondents that the order of the Board of
Revenue has become final. The Gaon
Sabha had filed a writ petition against that
order but had withdrawn the same. It is
not disputed by Sri R.C. Singh that in this
case the petitioner is not claiming title in
herself but is setting up the title of the
Gaon Sabha. The Gaon Sabha having
already lost in the Board of Revenue and
having withdrawn the writ petition the
matter between the Gaon Sabha and the
plaintiffs/respondents has become final.
The petitioner is litigating under the same
title and consequently even otherwise the
principle
of
res-judicata
would
be
applicable. The view finds support from
the decision of the Apex Court in 1996
Allahabad Civil Journal 824 (Singhal Lal
Chand Jain Vs. Rashtriya Swayam Sewak
Sangh, Panna and other). In that case a
decree for eviction was passed against the
Sangh. An objection under Section 47
C.P.C. in execution proceeding was filed
by a member of the Sangh. The Apex
Court held that the principles of res
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
834
judicata were applicable as a member of
the Sangh is litigating under the same title
as the Sangh.

Sri R.C. Singh submits that the suit
under Section 229-B was barred by
limitation. In support of this contention he
relies upon Section 341 of the U.P.
Zamindari Abolition and Land Reforms
Act, which provides that the Limitation
Act would be applicable to proceedings
under the U.P. Zamindari Abolition and
Land Reforms Act and limitation in a suit
for declaration would be governed by
Article 137 of Schedule 1 of the
Limitation Act as there is no period
prescribed for such a suit under the
U.P.Z.A. & L.R. Act. Section 341 itself
provides that the provisions of certain
Acts including the Limitation Act shall
apply to the proceedings under the U.P.
Z.A. & L. R. Act unless otherwise
provided in the U.P.Z.A. & L.R. Act.
Rule 338 of the U.P.Z.A. and L.R. Rules
provides that the suits, applications and
other proceedings specified in Appendix
III shall be instituted within the time
specified therein for them respectively.
Recourse to the provisions of the
Limitation Act would be available only if
there is no provision under Rules in
respect of the period of limitation for the
different classes of suits or proceedings
mentioned therein. In Appendix III the
period of limitation provided for different
classes of suits has been given. As regards
suits under Section 229-B column 4,
which prescribes the period of limitation
for different classes of suit says "none". It
would therefore be treated that there is no
limitation for filing a suit under Section
229-B. Section 9 of the Civil Procedure
Code provides that all suits of civil nature
shall be instituted in the civil court except
those, which have been excepted. A suit
under Section 229-B falls within the
excepted category and such suits even
though they involve declaration are suits
of a special character. Article 137 of the
Limitation Act relied upon by Sri Singh in
any case is applicable only to applications
and not to suits and therefore has no play.
When the rule making authority has
provided different periods of limitation
for different classes of suits it would be
treated that provisions prescribing period
of limitation in the Limitation Act would
not be applicable to suits under the U.P.Z.
A. & L.R. Act. Section 189 U.P.Z.A. & L.
R. Act sets out the circumstances in which
the interest of a bhumidar is extinguished.
Clauses (a) (aa) and (b) relate to cases
where the bhumidar dies leaving no heir,
or where he has let out his holding in
contravention of the provisions of the Act
or where the land is acquired. Sub Section
(C) of Section 189 provides that where a
bhumidar
has
lost
possession
the
bhumidari right would extinguish when
the right to recover possession is lost. In
Ram Naresh Vs. Board of Revenue 1985
R.D. 444 relied upon by Sri R. C. Singh it
was held that the provisions of Section 27
of the Limitation Act would be attracted
to suits instituted under Section 229-B.
Section
27
provides
that
on
the
determination of the period limited for
instituting a suit for possession the right
to such property shall be extinguished.
The rule is an exception to the general
rule that limitation bars the remedy but
does not extinguish the right. If however a
person is in possession his right can not
be extinguished unless the case is covered
by Clauses (a) (aa) and (b) of Section 189.
He can therefore seek a declaration of his
right at any point of time. If a person has
been dispossessed he would have to
institute a suit under Section 209
U.P.Z.A./ & L.R. Act. Appendix III
2 All] Pan Kumari V. Board of Revenue and others 835
provides the period for limitation for
filing a suit under Section 209. It would
follow therefore that a suit under Section
229-B would be barred by limitation the
bhumidar is out of possession and his
right to file a suit under Section 209 is
barred by limitation. The finding of fact
recorded on the question of possession is
that the plaintiffs have established their
continuous possession over the disputed
land. The finding is not shown to be
vitiated by any error. As the rights of the
plaintiff were never extinguished no
question of limitation arises. For the
reasons given above the writ petition
lacks merit and is dismissed.
30.8.2005. Petition dismissed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2005

BEFORE
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No.33685 of 2002

Akhilesh Kumar Chaubey
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.M. Pandey
Sri Ramesh Chand
Sri K.K. Misra

Counsel for the Respondents:
C.S.C.

Dying in Harness Rules 1974 rule 2 (a)
(iii)-employer
though
not
regularly
appointed-3yrs.
Service
on
regular
vacancy-The
dependant
of
such
employee entitled for the benefit of
Compassionate
appointment-12
yrs.
Continuous service-benefit of leave etc.
given-held requirement was perpetual
and regular in nature hence come under
the definition of Govt. servant for the
purpose
of
appointment
on
compassionate ground.

Held: Para 13 and 14

Taking the present case it is not disputed
that
the
petitioner's
father
was
appointed in 1987 and he continued to
work
continuously
till
he
died
on
20.8.99.
The
appointment
of
the
petitioner's father was initially for a
period of three years on being selected
by a Selection Committee. The said
appointment was then converted and he
was appointed as tube well assistant in
1992 also for three years. He continued
to work and was paid his salary regularly
and there was no break in his service.
This fact is also not denied by the
respondents.
The
fact
that
the
respondents required the services of the
petitioner's father continuously since
1987 to 1999 is indicative of the fact
that the requirement was of a perpetual
and regular nature. It is not the case of
the respondents that the work of tube
well operators no more exists. It has
also not been pleaded that such tube
well operators are no more required. On
a vacancy which may occur of a part
time tube well operator the tube well
still has to be operated, therefore, the
nature of work is existing day to day and
the respondents have taken the services
of
the
petitioner's
father
due
to
existence
of
work
since
1987
continuously. During this period of
nearly 12 years the salary has been
disbursed by the respondents month to
month. The nature of work required to
be performed by the petitioner's father
was of a regular nature as is apparent
from a reading of the appointment letter
dated 20.5.92 wherein the duties of the
petitioner have been prescribed. It is
also
not
disputed
by
the
learned
Standing Counsel that the part time tube
well operators are being paid the same
salary as regularly appointed tube well
operators on the principle of 'equal pay
for
equal
work.'
The
duties,
qualifications and hours of working of