# Court in Nawal Singh v. State of U.P. &

- **Citation:** (2006) 1 ILRA 305
- **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/court-in-nawal-singh-v-state-of-u-p-40844
- **Pages:** 5

## Headnote

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

U.P.Z.A. & L.R. Act-1956- 18,229-B,209
Section limitation for filing suit After
date of vesting become bhumidhar-No
limitation for institutions of Suit-except
the land covered under section 189-if
already dispossessed-suit shall be filed
under section 209.
306 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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
299-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.
Case law discussed:
1985 RD. 444 relied on

## Text

1 All] Pan Kumari V. Board of Revenue, U.P. Allahabad and others
305
(ii) Ordinarily, the order of compulsory
retirement is not to be treated as a
punishment coming under Article
311 of the Constitution.
(iii) For
better
administration,
it
is
necessary to chop off dead-wood, but
the order of compulsory retirement
can be passed after having due regard
to the entire service record of the
officer.
(iv) Any adverse entries made in the
confidential record shall be taken
note of and be given due weightage
in passing such order.
(v) Even uncommunicated entries
in the confidential record can also be
taken into consideration.
(vi) The order of compulsory retirement
shall not be passed as a short cut to
avoid departmental enquiry when
such course is more desirable.
(vii) If the officer was given a promotion
despite adverse entries made in the
confidential record that is a fact in
favour of the officer.
(viii) Compulsory retirement shall not be
imposed as a punitive measure."

12. Considering the order of
compulsory
retirement
passed
under
Fundamental Rules 56 the Hon'ble Apex
Court in Nawal Singh vs. State of U.P. &
another, AIR 2003 SC 4303 upheld the
orders of compulsory retirement passed
on the basis of scrutiny of entire past
record of service, character roll and other
material. Therefore, in the present case,
besides the adverse entries awarded to the
petitioner-appellant in respect of various
years, he was also found guilty of the
charges of embezzlement.

13. Considering all the aforesaid
aspects and the material available, it
cannot be said that the decision taken by
the respondent, retiring the petitionerappellant compulsorily, is arbitrary or
based on no material. In this view of the
matter, we are of the view that the
Hon'ble Single Judge has rightly upheld
the order of compulsory retirement and
the
writ
petition
has
rightly
been
dismissed.

Accordingly, the special appeal,
being
devoid
of
merit,
is
hereby
dismissed. There shall, however, be no
order as to costs.
 Appeal 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, U.P. at Allahabad 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 Trevini Shanker
Smt. Sarita Dubey
S.C.

U.P.Z.A. & L.R. Act-1956- 18,229-B,209
Section limitation for filing suit After
date of vesting become bhumidhar-No
limitation for institutions of Suit-except
the land covered under section 189-if
already dispossessed-suit shall be filed
under section 209.
306 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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
299-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.
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
holding Act in as much as no objection
was raised in 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
1 All] Pan Kumari V. Board of Revenue, U.P. Allahabad and others
307
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
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
passed 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
308 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
plaintiffs/respondents has become final.
The petitioner is litigating under the same
title and consequently even otherwise the
principles
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, Pann 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
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.
& 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
1 All] Radhey Shyam Mishra V. Union of India
309
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 provides the period for
limitation for filing a suit under Section
209. It would follow therefore that a suit
under Section 299-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.

 Petition dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2005

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Section Appeal No. 894 of 1985

Radhey Shyam Mishra
...Plaintiff
Versus
Union of India through G.M., Northern
Railway

 ...Defendant

Counsel for the Appellant:
Sri V.K. Pandey
Sri R.P. Mishra

Counsel for the Respondent:
Sri Govind Saran
Sri K.C. Sinha

Indian Railway Establishment ManualRule-Whether
the
Provision
of
Establishment Rules are the compilation
of Rules held -yes:

Held: Para 8

I find that Appellate Court grossly erred
in law in holding that the Indian Railway
Establishment Manual, Part II is non
statutory compilation of rules. In L.
Robert D'Souza Vs. The Ex. Engineer
Southern Railway AIR 1982 SC 854 it
was
held
that
Indian
Railway
Establishment
Manual
Vol.
Ii
is
a
compilation of Rules and is applicable as
conditions of service to the Railway
servants. The plaintiff having worked for
more than six months continuously had
attained the temporary status under
para 2511 (1) and could only be
terminated from service after following
the procedure under para 2302 which
conforms to para 2505 for termination of
service and the provisions of Article 311
(2) of Constitution of India. There was
no evidence o record and that the
documents filed by the parties do not
justify the findings of the lower appellate
court that the plaintiff quit his job on his
own accord. This was not even the case
set up in the written statement. The
letter dated 2.12.1997 in reply did not
even suggest that plaintiff had quit the
job.
Case law discussed:
AIR 1982 SC 854

(B) Indian Railway Establishment RulesPara-2511
(c)-Termination
OrderAppellant worked as skilled, Mechanic-
on the basis of competitive examination
worked about 6 month-acquired the
statues of temporary employee can not