# Deepak Kumar & Anr v. Board of Revenue, U.P. & Ors

- **Citation:** (2022) 11 ILRA 340
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-21
- **Case number:** Writ-B No. 356 of 2013
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-kumar-anr-v-board-of-revenue-u-p-ors-47823
- **Pages:** 10

## Headnote

A. Civil Law -U.P.Z.A. & L.R. Act-Section 229-Bdismissal of suit-Two village were brought
under Consolidation operation in the year
1958 and no objection was filed by anybody
claiming right or title on the basis of judgment
of civil court dated 14.11.1953-Petitioners and
contesting respondents were allotted separate
chak of 1⁄2 share in respect of both the
villages-Neither their right to property under
Article 300-A of the Constitution can be taken
away nor the rights of the co-sharers will
come to an end u/s 49 of the Act, on the
notification u/s 52 due to not claiming
partition of his share and separate chak in his
name and till there is no ouster from the joint
property his right in the property will continue
to exist-Moreso, the rights of the plaintiff were
never extinguished no question of limitation
arises- unless judgment and decree of Civil
Court dated 14.11.1953 is set aside, revenue
court cannot ignore the same-Thus,the matter
is remanded back before trial court. (Para 1 to
24)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

340 INDIAN LAW REPORTS ALLAHABAD SERIES
withholding of 3 annual increments was a
major or minor penalty.

16. It is the case of the respondent
that it was a minor penalty and the
petitioner ought to have approached the
Board under Regulation No.86 which
provides that order imposing penalty under
Sub-clause (a) to (d) of Clause 1 of
Regulation No.84 shall be appealable to the
Authorities as mentioned in Appendix D
and Appendix D mentions first appeal to be
made to the Committee of Management or
any other officer authorized by the
Committee of Management and in case the
Committee of Management has passed the
order of punishment, appeal shall file to the
Board i.e. Cooperative Societies Service
Institutional Board.

17. It is the case of the respondent
that the petitioner should have approached
the
Cooperative
Societies
Service
Institutional Board as the order passed
under Regulation No.84 was only for
withholding of increments.

18. Learned counsel for the petitioner
has argued that in case of the petitioner,
withholding of 3 annual increments was
with future effect and that would amount to
a major penalty when no appeal would lie
to the Board and in case where no appeal
shall lie to the Board, Section 128 would
come into play and the Registrar can be
approached.

19. Since the punishment order had
directed
withholding
of
3
annual
increments would have fallen due only with
effect from July of the year 2021, the
punishment that was imposed, was a minor
penalty and the petitioner ought to have
approached the Board. This Court finds that
since withholding of increments is a
punishment mentioned under Sub-clause
(b) of Regulation No. 84, it is a minor
penalty and the petitioner should have
approached the Board. He wrongly filed an
appeal
before
the
Registrar/Joint
Registrar/Deputy Registrar. The appeal
filed by the petitioner on 06.02.2021 shall
be treated as non-est.

20. The writ petition is disposed of
with a liberty to the petitioner to file an
appeal before the Cooperative Societies
Service Institutional Board against the
resolution
dated
25.11.2020
and
the
resolution dated 25.04.2022. If an appeal is
preferred before the Board by the petitioner
within a period of three weeks from today,
it shall be considered on its merits and in
accordance with law as expeditiously as
possible, within a period of three months
from the date a copy of the appeal and a
copy of this order is produced before it.

21. A copy of the resolution dated
25.11.2020 and a copy of the resolution
dated 25.04.2022 shall be served upon the
petitioner
within
a
week
from
its
application made in this regard by the
respondent no.3.
----------
(2022) 11 ILRA 340
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 356 of 2013

Deepak Kumar & Anr. ...Petitioners
Versus
Board of Revenue, U.P. & Ors.
 ...Respondents

Counsel for the Petitioners:
11 All. Deepak Kumar & Anr. Vs. Board of Revenue, U.P. & Ors.
341
Sri Yogesh Kumar Singh, Sri K.R. Sirohi, Sri R.C.
Singh, Sr. Advocate.

Counsel for the Respondents:
C.S.C., Nipun Singh, Sri R.G. Prasad, Sri
Satyendra Kr. Singh, Sri Shiv Prakash, Sri Suresh
Chandra Verma

A. Civil Law -U.P.Z.A. & L.R. Act-Section 229-Bdismissal of suit-Two village were brought
under Consolidation operation in the year
1958 and no objection was filed by anybody
claiming right or title on the basis of judgment
of civil court dated 14.11.1953-Petitioners and
contesting respondents were allotted separate
chak of 1⁄2 share in respect of both the
villages-Neither their right to property under
Article 300-A of the Constitution can be taken
away nor the rights of the co-sharers will
come to an end u/s 49 of the Act, on the
notification u/s 52 due to not claiming
partition of his share and separate chak in his
name and till there is no ouster from the joint
property his right in the property will continue
to exist-Moreso, the rights of the plaintiff were
never extinguished no question of limitation
arises- unless judgment and decree of Civil
Court dated 14.11.1953 is set aside, revenue
court cannot ignore the same-Thus,the matter
is remanded back before trial court. (Para 1 to
24)

The writ petition is allowed. (E-6)

List of Cases cited:
1. Pyare Lal Vs Hori Lal (1977) AIR SC 1226

2. Babu Ali (D) thru L.Rs. & ors.. Vs Dukkhi &
ors. (2004) 96 R.D. 530

3. Hori Lal & anr. Vs A.D.J .Agra & ors.. (2011)
5 ADJ 330

4. Mool Chand & ors. Vs DDC & ors. (1995) AIR
SC 2493

5. Ram Briksha & anr. Vs DDC & ors. (2016) 6
ADJ 356 DB

6. Pan Kumari Vs Board of Revenue U.P. Alld
(2005) 99 RD 529
7. R. Rajannnna Vs S.R Venkataswamy (2014)
15 SCC 471

8. Pulavarthi Venkata Subba Rao & ors. Vs
Valluri Jagannadha Rao & ors. (1967) AIR SC
591

9. Sailendra Narayan Vs St. of Ori (1956) SC 346

10. Habib Milan Vs M Ahmad (1974) A.P. 303

11. Byram Pestonji Ganwala Vs UOI (1992) 1
SCC 31

12. Jadu Gopal Chkravarty (dead) by his Lrs. Vs
Pannalal Bhowmick & ors. (1978) 3 SCC 215

13. Katikara Chintamani Dora Vs Gautreddi
Annamanaidu (1974) SC 1069

14. Pushpa Devi Bhagat (dead) thru L.R.
Sadhna Rai, (Smt.) Vs Rajinder Singh & ors.
(2006) 5 SCC 566

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

1. Heard Sri R.C. Singh, the learned
Senior Counsel assisted by Sri Yogesh
Kumar Singh, for the petitioners and Sri
Nipun Singh, counsel for respondent nos. 12
to 22.

2. The brief facts of the case are that
land pertaining of Khasara plot No.2695 area
1-1-0, Khasara Plot No.5613 area 0-18-0,
Khasara Plot No. 5649 m. area-0-4-10,
Kashara Plot No.5651 area 0-12-0, Khasara
Plot No.5652 area 0-03-0 Khasar Plot
No.5648 area 0-12-0, Khasara Plot No.5649
area 0-1-0 Khasra Plot No.5650 area 010-0,
total area 4-2-0 situated at Kasba-Kandhala,
Nagar Palika-Kandhala, Pargana-Kandhala,
Tehsil-Kairana,
District-Muzaffar
Nagar
(Now Shamli) belong to one Shree Ram.
Land belonging to Shri Ram was also
situated in village-Aldi. After death of Shree
Ram names of his two sons Kishan Swarup
342 INDIAN LAW REPORTS ALLAHABAD SERIES
and Surendra Swaroop were substituted and
name of KishanSwaroop and Surendra
Swaroop were recorded in respect to the land
situated in village-Kandhala and Aldi during
consolidation operation having 1⁄2 share each
but later on the name of Kishan Swaroop
(grand father of petitioners) was expunged
from the land in dispute on the basis of
decree
dated
14.11.1953
accordingly
petitioners' father as well as petitioners filed a
suit under Section 229-B of U.P.Z.A.&L.R.
Act for declaring their share in the property in
dispute on the ground that land in dispute is
Sir Khud Kast ancestral property of plaintiffs
as such they are entitled for the share.
Defendants filed their written statement and
contested the suit. Trial Court framed the
issues and parties adduced evidences in
support of their cases but trial court dismissed
the plaintiff's suit vide judgment and order
dated 23.03.2005. Against the judgment
dated 23.03.2005 passed by trial court
petitioners
filed
an
appeal
before
Commissioner
which
was
heard
and
dismissed by Additional Commissioner vide
judgment
dated
29.09.2007.
Petitioners
challenged the judgment dated 29.09.2007
before Board of Revenue through SecondAppeal which was dismissed vide judgment
dated 08.10.2012 hence this writ petition.

3. Civil Suit No.44 of 1953 Surendra
Prakash vs. Sri Kishan Swaroop was decided by
order dated 14.11.1953 on the basis of alleged
consent of the parties. The proceeding initiated
by contesting respondents in the year 1964 under
Section 33/39 of U.P. Land Revenue Act on the
basis of the decree of civil Court was rejected by
order
dated
30.05.1964
holding
that
amaldaramad cannot be made on the basis of
civil Courts decree dated 14.11.1953.

4. This petition was entertained on
07.01.2013 and following interim order
was passed:

"Heard learned counsel for the
petitioners and Shri S.C. Verma, who has
put in appearance on behalf of respondent
no. 4. He prays for and is allowed six
weeks' time to file counter affidavit.

Issue notice to respondent nos. 5 to
10, who may also file counter affidavit.

Petitioners shall take steps for service
of notice on the respondents by registered
post within one week. Office shall issue
notices returnable at an early date.

List after service of notice on
respondent nos. 5 to 10.

Considering
the
facts
and
circumstances, until further orders of this
Court, parties to the writ petition are
directed to maintain status quo with
respect to nature and possession over the
land in dispute as it exists today. Both the
parties
are
further
restrained
from
alienating, transferring or changing the
nature of the land in dispute in any
manner."

5. In pursuance of the order of this
Court
dated
07.01.2013
contesting
respondents
have
filed
their
counter
affidavit along with an application for
vacation of interim order. Petitioners have
filed their rejoinder affidavit also.

6. Counsel for the petitioners
submitted that no right was claimed before
the Consolidation Court on the basis of the
judgment of Civil Court date 14.11.1953
accordingly separate chaks were carved out
in the name of Kishan Swaroop and
Surendra Swaroop and final record under
Section-27 of the U.P.C.H. Act was also
prepared but courts below have filed to
consider this question and dismissed the
plaintiff's suit under Section 229-B of
U.P.Z.A. & L. R. Act only on the basis of
civil Court judgment dated 14.11.1953
which is inexecutable. He further submitted
11 All. Deepak Kumar & Anr. Vs. Board of Revenue, U.P. & Ors.
343
that even the application filed by contesting
respondents under section 33/39 of U.P.
Land Revenue act in the year 1964 to
correct the revenue entry on the basis of
civil court judgment dated 14.11.1953 was
rejected.
He
further
submitted
that
implementation of civil Court judgment
after
conclusion
of
consolidation
proceeding is not permissible in view of
law laid down by Apex Court as well as by
this Court in the following judgment:

(I) A.I.R. 1977 S.C 1226

Pyare Lal Vs. Hori Lal

(II) 2004 (96) R.D. 530

Babu Ali (D) through L.Rs. And
others vs. Dukkhi and others

(III) 2011 (5) A.D.J. 330

Hori Lal and another vs. Additional
District Judge Agra and others

7. Counsel for the petitioners further
submitted that final decree in pursuance of
the judgment dated 14.11.1953 has not
been prepared as such the judgment dated
14.11.1953 could not be implemented
although final decree if any would abate on
account of Consolidation operation. On this
point Counsel for the petitioners placed
reliance upon the judgment of Apex court
reported in A.I.R. 1995 Supreme Court
2493 Mool Chand and others Vs. Deputy
Director of Consolidation and others.

8. Counsel for the petitioners further
submitted that courts below have illegally
dismissed the suit for declaration filed by
petitioners
under
Section
229-B
of
U.P.Z.A. & L.R. Act on this basis of void
judgment and decree of civil court.

9. He further submitted that claim of
co-tenancy is not barred nor any limitation
has been prescribed for filing suit under
Section 229-B of U .P.Z.A. & L.R. Act.
Counsel for the petitioners placed reliance
upon following judgment of this Court with
respect to co-tenancy and limitation for
filing suit under Section 229-B of U.P.Z.A.
& L. R. Act.

(I) 2017 (6) ADJ 356 (DB)

Ram Briksha and another vs. Deputy
Director of Consolidation and others.

(II) 2005 (99) RD 529

Pan Kumari vs. Board of Revenue
U.P. Allahabad.

10. Counsel for the petitioners
submitted that writ petition be allowed and
matter be remanded before trial court for
fresh adjudication of suit under section229-B of U.P.Z.A.& L.R. Act on merit.

11. On the other hand, Counsel for the
contesting
respondent
submitted
that
judgment and decree of Civil Court dated
14.11.1953 was a consent decree and the
land was out of consolidation as such there
was no bar of section-49 of U.P.C.H. Act
for the contesting respondents rather the
bar of Section-49 of U.P.C.H. Act will be
for the petitioner in instituting present suit
under Section-229-B of U.P.Z.A. & L.R.
Act by the petitioners. He further submitted
that consent decree operates as estoppel
and binding unless set aside. He further
submitted that proper course available to
the petitioners to approach same court
seeking
recall
of
the
order
if
the
compromise or consent is the result of
fraud or undue influence. Counsel for the
respondent
placed
reliance
upon
the
following judgments on the point of
consent decree, compromise and remedy
available to the party concern against the
consent decree or compromise:

(I).
R.
Rajannnna
v.
S.R.
Venkataswamy, (2014) 15 SCC 471
344 INDIAN LAW REPORTS ALLAHABAD SERIES

(II) Pulavarthi Venkata Subba Rao
and others Vs. Valluri Jagannadha Rao
and others AIR 1967 SC 591

(III) Sailendra Narayan Vs. State of
Orissa, reported in AIR 1956 S.C. 346

(IV) Habib Milan Vs. M Ahmad,
reported in AIR 1974 A.P. 303

(V) Byram Pestonji Ganwala Vs.
Union of India, reported in (1992) 1 SCC
31

(VI) Jadu Gopal Chkravarty (dead)
by his Lrs. Vs. Pannalal Bhowmick and
ors, reported in (1978) 3 SCC 215

(VII) Katikara Chintamani Dora
Vs. Gautreddi Annamanaidu, reported
in AIR 1974 SC 1069

(VIII) Pushpa Devi Bhagat (dead)
through L.R. Sadhna Rai, (Smt.) Vs.
Rajinder Singh and others reported in
(2006) 5 SCC 566

12. Counsel for the respondents
further submitted that in rural ceiling
matter the judgment and decree of Civil
Court dated 14.11.1953 was relied upon
and the same was accepted by the Court
while allowing the appeal of contesting
respondents against the state in declaration
of surplus land. He further submitted that
no interference is required against the
impugned judgment and the writ petition
filed by the petitioners is liable to be
dismissed.

13. I have heard the learned counsel
for the parties and perused the records.

14. There is no dispute about the fact
that petitioners and contesting respondents
descended from common ancestor shree
Ram.
During
consolidation
operation
Kishan Swaroop (ancestor of petitioners)
and
Surendra
Swaroop
(ancestor
of
contesting
respondents)
were
allotted
separate chak of 1⁄2 share. So far as decree
of Civil Court dated 14.11.1953 is
concerned petitioners' version is that the
same is fraudulent and never acted upon
while the version of contesting respondents
is that the decree of civil Court unless
recalled or set aside cannot be ignored. The
proceeding initiated under Section 33/39 of
U.P. Land Revenue Act to give effect the
decree of Civil Court dated 14.11.1953 in
the revenue record was rejected vide order
dated 30.05.1964 however subsequently,
the revenue entry were corrected, hence
present suit under Section 229-B of
U.P.Z.A. & L.R. Act at the instance of the
petitioners as well as their father which has
been dismissed by all the three courts on
the ground of Civil Court Judgment and
decree dated 14.11.1953.

15. Since the judgment and decree of
the civil Court dated 14.11.1953 alleged to
be passed between the parties is the main
ground on which the suit filed by the
petitioners' father under Section 229-B of
U.P.Z.A.& L.R. Act has been dismissed, as
such first of all Court will examine the
judgment of Civil Court passed on
14.11.1953 which is as follows:

"This is a suit done a mere
declaration that the plaintiff is the owner
of the property given in the schedule by
means of the parties. The defendants
who are the other co-sharers in the
property have admitted the right of the
plaintiff and the plaintiff has given his
consent. So the court has to grant the
declaration sought. But before parting
with the case I would like to point out
that such suits are filed with the sole
object
of
saving
stamp
duty
and
registration for which have been payable
on a deed of partition. Such a device is
hardly desirable.

Order
11 All. Deepak Kumar & Anr. Vs. Board of Revenue, U.P. & Ors.
345

The suit is decreed and parties shall
bear their own costs. Copy of the
judgment may be sent to the Inspector of
Stamps and Registration Meerut circle
for information."

16. Perusal of judgment of Civil
Court dated 14.11.1953 reveals that suit
was filed by ancestor of contesting
respondents for declaration and by 9 lines
order suit has been decreed on the alleged
admission
of
defendant.
It
is
also
mentioned in the order that sole object of
the suit is to save stamp duty and
registration fee which would have been
payable on a deed of partition such a device
is hardly desirable the copy of the judgment
was ordered to be sent before inspector of
stamp and registration, Meerut circle but
there is nothing on record, whether it was
sent before inspector of stamp or not.

17. Contesting respondents have not
taken steps for implementation after getting
the
judgment
of
civil
court
dated
14.11.1953. In the year 1964 proceeding
under Section 33/39 of U.P. Land Revenue
Act 1901 was initiated by the contesting
respondents for expunging the name of
ancestor of petitioners on the basis of civil
Court judgment dated 14.11.1953, the
S.D.O.
vide
order
dated
30.05.1964
dismissed the application on the ground
that
amaldaramad
of
decree
dated
14.11.1953 was neither claimed nor made
in village-Aldi and Kandhala during
consolidation operation.

18. It is pertinent to mention that
village Kandhala and Aldi were brought
under Consolidation operation some times
in the year 1958 and no objection was filed
by anybody claiming right or title on the
basis of the judgment of civil Court dated
14.11.1953. Petitioners and contesting
respondents were allotted separate chak of
1/2 share in respect to both the villages, the
revenue entry in the form of C.H. 23 (part--
1) have been annexed as annexure No.10 to
the writ petition to demonstrate the
aforementioned facts.

19. These facts fully proves that
judgment of Civil Court dated 14.11.1953
has not been acted upon as such the same
cannot be relied upon by the revenue Court
to dismiss the suit of the plaintiffpetitioners
under
Section
229-B
of
U.P.Z.A. & L.R. Act. The suit under
Section 229-B of U.P.Z.A.& L.R. Act are
special type of suit which is to be decided
in accordance with law as well as the suit
for co-tenancy can not be rejected or
dismissed ordinarily as held by this Court
in Ram Briksha (supra). Para No.36, 37, 38
and 39 of the judgment rendered in Ram
Briksha (supra) will be relevant which are
as follows:-

"36. On these parameters, the issues
that have been raised before us are being
considered
and
in
our
considered
opinion rights of the parties in a holding
cannot be permitted to be defeated
merely because they have not at all
participated in consolidation proceedings
and as to whether the bar of Section 49
of U.P. Consolidation of Holdings Act,
1953 would be attracted or not would
essentially be a question of fact that can
be answered on the basis of evidence
adduced and to the said bar in question
exceptions have to be carved out wherein
suit in question would be not barred and
Section 49 of U.P. Consolidation of
Holdings Act, 1953 would not come into
play where from the series of documents
and circumstances it is reflected that
planned fraud has been made to delete
the plaintiffs name from the revenue
346 INDIAN LAW REPORTS ALLAHABAD SERIES
records.
From
the
record
of
the
consolidations, it is clearly reflected that
neither
the
incumbent,
who
has
proceeded to get his name recorded nor
consolidation authorities have proceeded
to discharge their duties faithfully in
consonance with the provisions of U.P.
Consolidation of Holdings Act wherein
the
consolidation
authorities
are
empowered to ascertain the share of
each owner if there be more owners than
one and in case such an exercise has not
been undertaken, then it would be a case
of legal malice and it cannot be ipso facto
presumed that there has been ouster
from the property in question and in
such a situation an incumbent, who
claims his right in the property in
question has got every right to regain his
property based on title for the reason
that the right has been sought to be
defeated
based
on
fraud
and
manipulation.

The provisions of Section 49 of U.P.
Consolidation of Holdings Act, 1953 in
such backdrop would not at all be
attracted and the suit in question would
not at all be prima facie barred where
suit in question is filed for possession of
the suit property based on property
interest. The reference is answered as
follows:

Issue No.I

37. Whether use of words "could or
ought to have been taken" in latter part
of Section 49 of the Act, compulsorily
forces the co-sharers, who are living
jointly, peacefully and have no grievance
against their father/brother/co-sharer,
whose
name
is
recorded
in
representative capacity, or they were
willing to live jointly, due to situation of
their family, i.e. (father and minor son),
(mother and minor son), (brother and
minor brother) and (some co-sharer was
student and had gone abroad for study
and fully depends upon other co-sharers)
etc., to file an objection under Section 9
of the Act for separation of his share?

A. Because of the words "could or
ought to have been taken" in latter part
of Section 49 of the Act, same does not
compulsorily forces the co-sharers, who
are living jointly, peacefully and have no
grievance
against
their
father/brother/co-sharer whose name is
recorded in representative capacity or
they were willing to live jointly due to
situation of their family and who have
not filed an objection under Section 49 of
the Act for separation of their share
inasmuch as under the provisions of U.P.
Consolidation of Holdings Act, 1953, it is
the statutory obligation cast upon the
authorities and the incumbent, who has
been holding the property in question in
the representative capacity to get the
records corrected and in case in designed
manner the obligation in question has
not been discharged by Consolidation
Authorities as well as by the incumbent
holding
the
property
in
the
representative capacity, then in such a
situation Section 49 of the Act would not
at all be attracted and such situation
would be covered under the contingency
of planned fraud to drop the name of
other co-sharers from the revenue
records.

Issue No.II

38. Whether by operation of law, the
parties can be thrown into litigation
against their will/need and by not raising
claim to land or partition and separation
of the chak their right to property can be
taken away in spite of protection
available under Article 19 (1) (f) and
now Article 300-A of the Constitution?

A. The answer is that a party cannot
be thrown in litigation against their
11 All. Deepak Kumar & Anr. Vs. Board of Revenue, U.P. & Ors.
347
will/need and by not raising claim to
land of partition and separation of chak,
their rights to property cannot be taken
away under the protection provided for
under Article 19(1)(f)/Article 300-A of
the Constitution of India.

Issue No.III

39. Whether, in spite of well settled
legal principle in respect of joint
property, right of a co-sharer will come
to an end under Section 49 of the Act, on
the notification under Section 52, due to
not claiming partition of his share and
separate chak in his name, although,
there had been no ouster from joint
property?

A. The rights of the co-sharers will
not at all come to an end under Section
49 of the Act, on the notification under
Section 52 due to not claiming partition
of his share and separate chak in his
name and till there is no ouster from the
joint property his right in the property
will continue to exist.

The
reference
is
accordingly
answered. The Writ Petition alongwith
connected matters shall now be placed
before the appropriate Bench according
to roster for disposal in light of this
judgement."

20. On the point of maintainability of
suit under Section 229-B of U.P.Z.A. &
L.R. Act on the point of limitation etc. the
judgment
rendered
in
Pan
Kumari
(Supra) will be relevant, paragraph No.6 of
the judgment will be relevant which is as
follows:

"6. 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
Limiataion 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
Ors. 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 accepted. 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
348 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Subsection (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 Sectiion
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 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."

21. So far as the argument advanced
by learned counsel for the contesting
respondents as well as case law cited by
him are concerned to the effect that unless
judgment and decree of Civil Court dated
14.11.1953 is recalled/set aside, revenue
court cannot ignore the same cannot be
accepted as the decree of civil Court dated
14.11.1953 has not been given effect to
even during consolidation operation as such
the petitioners' suit under Section 229-B of
U.P.Z.A. & L.R. Act cannot be dismissed
on the ground of Civil Court judgment
dated 14.11.1953. The first appellate Court
moved one step ahead and made out a third
case that no evidence was produced before
the trial court that shri Ram was common
ancestor of the parties while there was no
dispute at all that Shri Ram was common
ancestor of the parties and there was
evidence to that effect before the trial court
as well as before this Hon'ble Court the
IInd
Supplementary
affidavit
dated
21.09.2022 filed by petitioners contain the
fact as well as evidences which were filed
before trial court.

22. Second Appellate Court has also
failed to exercise the IInd Appellate Court
jurisdiction and only on the ground of
judgment of Civil court dated 14.11.1953
dismissed the second appeal.

23. Considering the entire facts and
circumstances
as
well
as
case
law
11 All. Dr M Ismail Faruqui Vs. Shri Adityanath
349
mentioned above the impugned judgment
and decree dated 23.02.2005 passed by
respondent
No.3,
judgment
dated
29.09.2007 passed by respondent No.2 and
judgment dated 08.10.2012 passed by
respondent No.1 are manifestly erroneous
and are liable to be set aside, the same are
hereby set aside.

24. The writ petition is allowed and
matter is remanded back before trial
court to decide the suit filed by
petitioners under Section 229-B of
U.P.Z.A. & L.R. Act on merit afresh
after affording proper opportunity of
hearing to the parties expeditiously
preferably within a period of six months
from the date of production of certified
copy of this order. Since petitioners
were
granted
interim-order
during
pendency of the writ petition before this
Court, even during pendency of the First
Appeal and Second Appeal interim order
was granted by courts below as such it is
directed that parties shall maintain status
quo
with
respect
to
nature
and
possession of the land in dispute and no
third parties interest be created in
respect to property in dispute.

25. No orders as to costs.
----------
(2022) 11 ILRA 349
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.11.2022

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-C No. 7524 of 2022

Dr M Ismail Faruqui ...Petitioner
Versus
Shri Adityanath ...Respondent
Counsel for the Petitioner:
In Person

Counsel for the Respondents:
--

A. Constitution of India - Article 226 -
Writ
-
Principle
of
res
judicata
-
Applicability - Earlier writ petition was
withdrawn - No liberty was given to file
fresh writ petition - Effect - Held, the
principles of res judicata are applicable to
writ petitions in the case - However, High
court without testing the writ petition on
the premise of res-judicata, granted the
concession of considering the writ petition
on merit. (Para 5)
B. Constitution of India - Article 164(4) -
Representation of People Act, 1951 -
Section 80 - Conduct of Election Rules,
1961 - R. 4A
- Challenge to the
continuance of Yogi Adityanath as the
Chief Minister of Uttar Pradesh - No
election petition was filed - Election of the
respondent was not found improper by
any competent authority - Effect - Held,
the petitioner under the garb of the writ
petition is actually seeking to challenge
the election of the Respondent from
Gorakhpur Urban Legislative Assembly -
The Petitioner by filing the writ petition is
trying to do something indirectly which
the law prohibits him to do directly. (Para
7 and 8)
C. Constitution of India - Article 226 -
Writ - Locus Standi of the petitioner -
Petitioner was not registered elector in
the Gorakhpur Urban Legislative Assembly
- Effect - Held, the petitioner does not
have any locus for filing the present writ
petition
- Case of Tej
Bahadur Vs
Narendra Modi relied upon. (Para 10)
D. Access to Justice - Misuse - Filing of
frivolous petition - Permissibility - Held,
no litigant has a right to unLtd. draught on
the court time and public money in order
to get his affairs settled in a manner as he
wishes. Easy access to justice should not
be
misused
as
a
licence
to
file