# Dindyal & Ors v. Board of Revenue & Ors

- **Citation:** (2024) 12 ILRA 241
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-17
- **Case number:** Writ B No. 4242 of 1982
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dindyal-ors-v-board-of-revenue-ors-51202
- **Pages:** 10

## Headnote

242 INDIAN LAW REPORTS ALLAHABAD SERIES
Km.Akanksha
Yadav,
Mahendra
Nath
Pandey, Manjari Singh, Prem Prakash, S.C.

Tenancy Law - Maintainability of Suit -
Applicability of Government Grants Act,
1895 (as amended by U.P. Amendment
Act, 1960) - Section 2 - Exclusion of U.P.
Tenancy Act, 1939 and Agra Tenancy Act,
1926 - Section 2 of Government Grants
Act explicitly provides that the provisions
of the Transfer of Property Act, 1882 - U.P.
Tenancy Act, 1939, and Agra Tenancy Act,
1926 shall not apply to grants made by or
on behalf of the Government, and such
Grants
will
operate
notwithstanding
anything contrary contained in these
Tenancy laws - It is well settled that there
can be no estoppel against law. Issue of
maintainability of a suit can be considered
at any stage of the proceedings. In the
present case, land in dispute was given on
Grant to ancestors of plaintiffs, therefore,
any right would be accrued only in terms
of recital of Grant as well as in terms of
Crown Grants Act (later on known as
Government Grants Act). the Trial court
did
not
address
the
issue
of
maintainability,
however
the
First
Appellate Court rightly held that the
plaintiffs' suit was barred under the
Government
Grants
Act,
1895
(as
amended by the U.P. Amendment Act,
1960), as the plaintiffs' rights were based
on the U.P. Tenancy Act, 1939, which was
excluded by Section 2 of the Government
Grants Act. All suits were dismissed under
Order VII Rule 11 CPC. Board of Revenue
in second appeal, despite acknowledging
that the Government Grants Act excluded
the tenancy laws, wrongly held that
"other provisions" of the Tenancy Acts
could
still
apply
without
specifying
grounds or statutory basis. That was held
to be a self-contradictory, perverse, and
illegal conclusion. Writ petition allowed;
impugned order of the Board of Revenue
is set aside. (Para 16, 17)
Allowed. (E-5)
List of Cases cited:

Krishna Rai (dead) through LRs Vs Banaras
Hindu University through Registrar & ors.,
(2022) 8 SCC 715

## Text

12 All. Dindyal & Ors. Vs. Board of Revenue & Ors.
241
100/- as well as that even it was valued
more than Rs. 100/-, still, since by said
document, shares of party which were
already accepted and acted upon were
recorded, therefore, no registration was
required.

27. The issue no.3 before trial Court
i.e. whether suit was barred under Order IX
Rule 9 CPC was not pressed. Order IX
Rule 8 CPC provides procedure where
defendants only appear. Order IX Rule 9
CPC provides decree against plaintiff by
default bars fresh suit i.e. if a suit is wholly
or partially dismissed under Rule 8, the
plaintiff shall be precluded from bringing a
fresh suit in respect of the same cause of
action. But he may apply for an order to set
the dismissal aside. However, in present
case, the suit was dismissed for want of
prosecution on 28.09.1963 though the order
is not on record.

28. As referred above, a factor would
go against petitioners that said issue was
not pressed during suit proceedings when it
was dismissed. Even it was not raised
specifically in second appeal. Therefore,
despite above provisions, petitioners will
not get any help from it.

29. Last issue for consideration is if
the condition prescribed U/s 34 (1) of Act
of 1901 was not complied with whether in
view of Section 34(5) of Act of 1901, no
suit could be filed.

30. In this regard, Court takes note of
findings returned that father of respondent1 Buddha died before Act of 1950 came
into force, therefore, he was not required to
report in terms of Section 34(1) of Act of
1901. The Court takes note that by way of
filing supplementary affidavit, petitioners
have brought on record a death certificate
of Buddha that he died after Act of 1950
came into force, however, said document
has been placed for first time before this
Court, therefore, it has not been considered
by trial Court, First as well as Second
Appellate Courts.

31. In view of above, in writ
jurisdiction, said document cannot be
verified or scrutinized. No material was
produced before Revenue Courts that
Buddha died after enforcement of Act of
1950.

32. In aforesaid circumstances, Court
is of considered opinion that all arguments
raised in this writ petition have no force,
therefore, this Court does not find any
ground to interfere with impugned order,
hence, writ petition stands dismissed.
----------
(2024) 12 ILRA 241
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ B No. 4242 of 1982

Dindyal & Ors. ...Petitioners
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioners:
H.O.K. Srivastava, A K Rai, Ashish Kumar
Ojha, H.M. Srivastava, H.N. Srivastava, M.
Kumar, Narendra Kumar, Neeraj Srivastava,
Salilendu Kr. Upadhyaya, Shailendra Kumar
Verma, Vineet Kumar Singh, Vishnu K.Rai

Counsel for the Respondents:
V.K.S. Chaudhary, A.N. Singh, Akhilesh
Singh, Ashok Yadav, Awdhesh Singh,
242 INDIAN LAW REPORTS ALLAHABAD SERIES
Km.Akanksha
Yadav,
Mahendra
Nath
Pandey, Manjari Singh, Prem Prakash, S.C.

Tenancy Law - Maintainability of Suit -
Applicability of Government Grants Act,
1895 (as amended by U.P. Amendment
Act, 1960) - Section 2 - Exclusion of U.P.
Tenancy Act, 1939 and Agra Tenancy Act,
1926 - Section 2 of Government Grants
Act explicitly provides that the provisions
of the Transfer of Property Act, 1882 - U.P.
Tenancy Act, 1939, and Agra Tenancy Act,
1926 shall not apply to grants made by or
on behalf of the Government, and such
Grants
will
operate
notwithstanding
anything contrary contained in these
Tenancy laws - It is well settled that there
can be no estoppel against law. Issue of
maintainability of a suit can be considered
at any stage of the proceedings. In the
present case, land in dispute was given on
Grant to ancestors of plaintiffs, therefore,
any right would be accrued only in terms
of recital of Grant as well as in terms of
Crown Grants Act (later on known as
Government Grants Act). the Trial court
did
not
address
the
issue
of
maintainability,
however
the
First
Appellate Court rightly held that the
plaintiffs' suit was barred under the
Government
Grants
Act,
1895
(as
amended by the U.P. Amendment Act,
1960), as the plaintiffs' rights were based
on the U.P. Tenancy Act, 1939, which was
excluded by Section 2 of the Government
Grants Act. All suits were dismissed under
Order VII Rule 11 CPC. Board of Revenue
in second appeal, despite acknowledging
that the Government Grants Act excluded
the tenancy laws, wrongly held that
"other provisions" of the Tenancy Acts
could
still
apply
without
specifying
grounds or statutory basis. That was held
to be a self-contradictory, perverse, and
illegal conclusion. Writ petition allowed;
impugned order of the Board of Revenue
is set aside. (Para 16, 17)
Allowed. (E-5)
List of Cases cited:

Krishna Rai (dead) through LRs Vs Banaras
Hindu University through Registrar & ors.,
(2022) 8 SCC 715

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. In present case, original respondent
- 3 has filed 5 suits bearing Suit Nos. 18,
19, 20, 21 and 22 of 1954 under Section
175 of U.P. Tenancy Act, 1939. Suits were
directed against different defendants and in
regard to different plots. According to
plaintiffs, they were sir-holders of plots
whereas defendants were their sub-tenants
and they were liable for ejectment.

2. Later on, on 29.09.1956, plaintiffs
applied for amendment of pleadings, which
was allowed that they were occupancy
tenants of land in dispute since it was given
to their ancestors as a grant. The defendants
of all suits contested that they are not subtenants of plaintiffs and have acquired
hereditary rights and suits are barred by
limitation. They have challenged the
plaintiff's title also. In the suit, following 6
issues were framed :-

"1. Whether defendants is a
subtenant of the plaintiff liable to ejectment
u/s 175 U.P. Tenancy Act?

2. Whether plaintiff occupancy
tenants of the land in suit?

3. Whether the suit is within
time?

4. Whether the land in suit is
demarcable?

5. Whether Itwari is a necessary
party?

6. Should these suits be stayed
under Provisions of Section 10 of U.P.
Agricultural
Tenants
Acquisition
of
Privilages Act?"
12 All. Dindyal & Ors. Vs. Board of Revenue & Ors.
243

3. Trial Court vide order dated
30.09.1958, dismissed the Suit No. 18 and
21. Suit Nos. 19 and 20 were decreed in
part and Suit No. 22 was decreed in its
entirety.

4. Trial Court held that plaintiffs were
occupancy tenants of all lands involved in
five suits. In Plot Nos. 12, 18, 20, 32, 16
and 26 defendants were held as "bila
tasnia". Relevant finding in regard to issue
no. 1 is quoted below :-

"In suit No. 18 plaintiff have sued
Ratiram Punni for ejectment from plot no.
20. In 1352F and 1359F Khatauni Ratiram
is shown as holding this land bila tasnia is
commencing from 1352 F. plaintiff Ujagar
Singh stated that Pumi was admitted to this
land but Punni name as holding it never
appeared in the Khatauni Ratiram has
entered the witnesses box and denied this
fact. hence I am unable to believe that
Ratiram was over admitted as subtenant of
plot no.201 Therefore in respect of Plot No.
20 I hold that Rati Ram is not a subtenant.
Issue No. 2 in respect of suit No. 18 is
answered in the negative.

In the suit No. 19 plaintiffs have
sued Moti, Mauji, Chotey and Itwari in
respect of plots 4,31 ani 32. Out of these
plots 4, 31 and 32 are recorded as
subtenants at Rs. 46/- rent in 1359 F with
17 years and 12 years duration respectively.
Užagar Singh and his witnesses have said
that these persons were admitted as
subtenants. None of the defendants have
entered the witness box to rebut that
statement. Hense the oral evidence of
plaintiffs coupled with entries in Khatauni
proves that defendants are subtenants of
plaintiffs in respects of plot 4 and 31. In
respect of plot no. 32 defendants are
recorded as bila tasfia tenants. Therefore I
hold that defendants are not subtenants of
plot no. 32. Issue No. 1 in respect of Suit
No. 19, in respect of plots 4 and 31 is
answered in the affirmative, while in
respect of lot no. 32 it is answered in the
negative.

In suit No. 20 plaintiffs have sued
Lachman and Dharamjit and Neku in
respect of plots no. 7,9,25,20,10,16, and 26.
In Khatauni of 1350 F and 1359 F
defendants are recorded as subtenants at
Rs. 50/- rent in respect of plots 7,9,25,29
and 10 while in respect of plots 16 and 26
they are recorded as bila tasfia tenants from
1352 F. None of these defendants have
entered the witness box to rebut the
plaintiffs evidence
about contract of
subtenancy.
Therefore,
I
hold
that
defendants are subtenants of plot no. 7 , 9,
10,25 and 26 atleast. Because the plots 16
and 26 are entered as bila tasfia am unusual
to believe that these plots were let out to
defendants consequently. Issue no. 1 is
answered in the affirmative in respect of
plots no. 7,9, and 10,25 and 29 and in the
negative in respect of plot 16 and 26.

In suit No. 21 Umrao defendant
has been suit for ejectment from plots 12
and 18. Umrao is record as bila tasfia
tenant from 1352F of both these plots
Umrao has also entered the witness box and
denied the alleged contract of tenancy.
Therefore, I hold that Umrao was never a
subtenant of plaintiffs and is cultivating
these lands without contract. Hence Issue
No. 1 in suit no. 21 is answered in the
negative.

In suit No. 22 Nathoo, Bhikham
and Ratiram S/o Punni have been sued for
ejectment from plot no. 3/7/96. This plot is
recorded as subtenancy of defendants or
their predecessors at Rs. 61/- The duration
in 1352F is 15 years and the duration in
1359F is 32 years. None of the defendants
except Ratiram has entered the witness box
to deny the alleged contract of tenancy.
244 INDIAN LAW REPORTS ALLAHABAD SERIES
From the entries it appears that the contract
originally took place between Punni,
Bachoo and Bhikham. Therefore, denial by
Ratiram is of little consequences. Ujagar
Singh and his witness have said that
Risaldar Saheb land admitted the defendant
as subtenants. The entries in Khatauni
support their version. Therefore, I hold that
defendants in suit NO. 22 are subtenants of
plaintiffs in respect of plot no. 3. Issue No.
1 in respect of suit No. 22 is answered in
the affirmative.

It was urged by the learned
counsel for plaintiffs that Ex.P1 proves the
contract with Umrao Ratiram and others. A
perusal of Ex.P1 will show that it does not
convey anything. Against the name of
Umrao plot no. 16 is noted about which he
has not been sued. Similarly in respect of
other case too this documents does not help
the plaintiffs.

For the above reasons Issue no. 1
is answered in the negative in respect of
suit nos. 18 and 21 in toto, in the respect of
Suit No. 19 only in respect of plot no. 32
and in respect of suit no. 20 in respect of
plots 16 and 26. Issue NO. 2 is answered in
the affirmative. In suit no. 22 in respect of
plots 4 and 31 in suit no. 19 in respect of
plots 9,7,10,25 and 29 in Suit no. 20."

5. Both plaintiffs and defendants were
aggrieved
by
aforesaid
orders
and,
therefore, 7 appeals were filed, which were
decided vide judgment and order dated
06.06.1973 and all suits were dismissed
under Order 7 Rule 11 CPC on a ground
that as the disputed land was a Nazul land
and since it was a land given on grant under
Crown Grants Act, 1895 (later on known as
"Government
Grants
Act,
1950"),
therefore, provisions of said Act would be
applicable and according to provisions of
Section 2 and 3 as Amended of it, on such
land neither provisions of U.P. Tenancy
Act, 1939 nor Agra Tenancy Act, 1926
would be applicable. Relevant part thereof
is quoted below :-

"7. मैने उियपक्षो के योग्य िकीलो के तका सुने
और पत्रािली का अिलोकन भकया। आयुक्त के पत्र भिनांक
23.6.33 की प्रभतभलभप के अिलोकन से यि भसद्ध िै भक
भििाभित िूभम नजूल की िूभम िै। उजागर भसंि पी० डब्लू०1 ने िी
यिी किा भक नजूल की सनि भमली थी और िि नजूल मे िाभखल
िै। ऐसी ििा मे यि मानी िुई बात िै भक भििाभित िूभम नजूल के
िूभम थी। जब ररसालिार िुलास भसंि भपता और िािा िािीगण को
(अस्क्पष्ट) िषा िुये उठाई गई। चूंभक भििाभित िूभम नजूल की िूभम थी
अतः इस पर एक्ट 3 आफ 1926 लागू निीं था और न यू० पी०
टेनेन्द्सी एक्ट (अस्क्पष्ट) था। राउन ग्राटस एक्ट 1895 लागू था जो
भक गिनामेन्द्ट ग्रान्द्टस एक्ट1950 से बिल गया और भजसका
संिोधन यू० पी० अभधभनयम संख्या 13 आफ 1960 से िो गया।
1967 आर० डी० पृष्ठ 434 पर िी िुई (अस्क्पष्ट) के अिलोकन
से यि भसद्ध िै भक इस िूभम पर आगरा टेनेन्द्सी एक्ट 19(अस्क्पष्ट)
या यू० पी० टेनेन्द्सी एक्ट 1939 लागू निीं था। मै अपीलकताा के
योग्य िकील के इस तका से सिमत निीं ि ूँ भक इस िूभम पर आगरा
टेनेन्द्सी एक्ट 1926 और यू० पी० टेनेन्द्सी एक्ट 1939 लागू िै।
ऐसी ििा में िाि धारा 175 यू० पी० टेनेन्द्सी एक्ट के अन्द्तगात
चलने योग्य निी िै एक्ट 3 आफ 1926 उस समय लागू था भजस
समय आकुपेन्द्सी अभधकार (अस्क्पष्ट) जाना किा जाता िै। यभि बिस
के भलये सिी मान िी भलया जाये (अस्क्पष्ट) 3 आफ 1926 इस
िूभम पर लागू था तब िी इस िूभम में जो (अस्क्पष्ट) की िूभम िै
आकुपैन्द्सी अभधकार धारा 16 एक्ट 3 आफ 1926 के अन्द्तगात
निीं भिये जा सकते थे। उपरोक्त अभधभनयम की धारा 16 के अन्द्तगात
आयुक्त की आकुपैन्द्सी अभधकार िेने का कोई अभधकार निी था।
धारा 16 सबक्लाज 5 के अन्द्तगात आकुपैन्द्सी अभधकार रभजस्क्टडा
इन्द्सट्रुमेन्द्ट के द्वारा िी भिये जा सकते थे परन्द्तु इस िूभम के भिषय में
कोई रभजस्क्टडा इन्द्सट्रुमेन्द्ट निीं भलखा गया। चूंभक िािीगण नजूल की
िूभम के कृषक थे अतः उनको उपरोक्त अभधभनयम की धारा 16 के
अन्द्तगात खतौनी अभधकार भिये िी निी जा सकते थे। आकुपैन्द्सी
अभधकार िेने के (अस्क्पष्ट) उपरोक्त अभधभनयम धारा 18 मे तरीका
बताया गया िै भजसका भक (अस्क्पष्ट) करना आिश्यक था परन्द्तु
धारा 18 मे भिये िुये उपबन्द्ध का पालन न भकया गया। ऐसी ििा में
िािीगण के भपता और िािा भििाभित िूभम (अस्क्पष्ट) आकुपैन्द्सी
अभधकार प्रस्क्तुत िी निीं कर सकते थे। पत्रािली मे ऐसा कोई साक्ष्य
निीं िै भजससे यि भसद्ध िो भक आयुक्त को नजूल की िूभम मे
12 All. Dindyal & Ors. Vs. Board of Revenue & Ors.
245
(अस्क्पष्ट) अभधभनयम के अन्द्तगात भकसी व्यभक्त को आकुपैन्द्सी
अभधकार िेने का (अस्क्पष्ट) िो। केिल अभिलेखों के इेन्द्राज के
आधार पर िािीगण आकुपैन्द्सी टेनेन्द्सी (अस्क्पष्ट) निी िो सकते।
चूंभक िािीगण आकुपैन्द्सी टेनेन्द्स भसद्ध निीं िै अतः उन्द्िे धारा 175
के अन्द्तगात िाि योभजत करने का अभधकार निीं िै। (अस्क्पष्ट) के
आधार पर मै इस िाि में गुणगुण भनणाय िेने की आिश्यकता निीं
समझता ि ूँ। उपरोक्त भिचार भिमिा के आधार पर मै अिर न्द्यायालय
के आिेि ि आज्ञाभपत भिनांक 30.9.59 िाि संख्या 19 गाटा
संख्या (अस्क्पष्ट) के भिषय मे और िाि संख्या 20 के गाटा संख्या
7, 9, 10 (अस्क्पष्ट) के भिषय मे और िाि संख्या 22 के भिषय मे
भनरस्क्त करता िै और िाि संख्या 10 के गाटा संख्या 4 और 31
के भिषय मे िाि संख्या 20 के गाटा संख्या 7, 9, 10, 25 और
29 के भिषय मे और िाि संख्या 22 के सब गाटों के भिषय मे िी
िािी को खंभडत करता ि ूँ और िाि संख्या 18, 19, 20, 21
और 22 के िाि पत्र आिेि 7 भनयम 11 सी० पी० सी० के
अन्द्तगात भनरस्क्त करता ि ूँ।"

6.
In
aforesaid
circumstances,
plaintiffs filed 5 Second Appeals before
Board of Revenue which was allowed vide
impugned order dated 29.03.1982. Relevant
part thereof are quoted below :-

"12. It is thus clear that although
the provisions of Agra Tenancy Act or the
U.P. Tenancy Act are not applicable for
invalidating the grant but the other
provisions of these Acts are applicable. The
grant being of occupancy rights, therefore,
the plaintiffs are entitled to file the suit for
ejectment are maintainable. The lower
appellate court wrongly applied the law
without considering the provisions of
section 2 of U.P.Act XIII of 1960. It is,
therefore, held that all the suits are
maintainable.

13. It is true as held in A.I.R.
1964 (S.C.) page 536, More a more
Basselious Cathelious and another versus
Most Dev. Har Poulose |Athenesine and
others, and A.I.R. 1965 (S.C.) [age 1506.
Braham Nand Puri Vs. Neki Puri that in
ejectment suits the plaintiff must succeed
on the strength of his own title and has to
discharge the onus which is on him
irreparastive of whether the defendant has
proved his case or not. In the present case
the plaintiff have discharged the onus
placed
on
them
and
have
proved
satisfactorily that they are occupancy
tenants of all the disputed land are holding
over and the terms of the lease granting
occupancy tenancy rights on their ancestral
substitute and of the defendants are proved
to be sub tenants they are liable to be
ejectment from the disputed land.

14. No sirdari rights can acquire
to the defendant as the U.P.Z.A and L.R
Act is not applcable and no heredity rights
can accure to them as the provisions of
U.P. Tenancy Act can not be applied for
invalidating the grant. The entry of 1359 F.
showing Ratiram as Bila Tasfia on plot no.
20 who appeared as a witness as D.W. 2 is
certainly a sub-tenants of the plaintiff
because para 134 of the U.P. Land Records
Manual Lays down that occupancy tenants
of Government estates are to be recorded in
class (C) and persons recorded in class (20)
as Bila Tasfia are not trespasser but they
are sub-tenants who have entered into
contract of sub-tenancy but the rent has not
been settled. Reference can be made
Mahadeo Pandey versus Suraj Bhan Singh
1964 R.D. page 253 (H.C). It has been held
in Bhagwan Bux Singh and others versus
Ganesh Bux Singh Retu and others in 1237
R.D. page 572 as follows:-

"The entry in the village records
of the defendants as bila tasfia tenants is
inconsistent with their possession being
adverse. The more fact that the defendants
have been in possession for a long time or
that they had not paid any rent for the land
cannot
established
title
by
adverse
possession."

Therefore, in view of the above
as the bila tasfia entries of Ratiram
246 INDIAN LAW REPORTS ALLAHABAD SERIES
defendant in suit no. 18 was wrongly
construed to be entry of a trespasser instead
of construing it to be necessary of subtenancy in which rent has been settled and
rent receipts etc. P-2, P-5, and P-9 were
also not considered. Therefore, the suit
ought to have been decreed against
defendant Rati Ram. So is the case with
suit no. 20 the bila tasfia entries of 8 years
standing in 1359Fasli D.W.1 Umrao only
having been examined who should not have
been believed against the paper entries. Suit
no. 21 also ought to have been decreed and
accordingly bila tasfia entry of 8 years
regarding plot nos. 1 , 6 and 26 of suit no.
20 also ought to have been decreed because
they are entries of sub-tenants and only
rents were not settled and the entry on plot
no. 17 of suit no. 19 against defendant not
etc for plot no. 32 who did not appear in the
witness box and receipt ext P-6 and P-9
were proved the suit for this plot also ought
to have been decreed. In suit no. 20
defendants did not appear in the witness
box and Shikmi entries of plot nos. 1,6 and
26 should have been believed and the suit
for them also ought to have been decreed. It
is settled principle that persons having
special knowledge should appear being
material witness. If they failed to appear
adver inference should be drawn against
them. Reliance can be placed on Har
Mandir Pathak versus Sankatha Singh 1966
A.L.J. Page 904, A.I.R. 1922 Bombay page
81 Rajmal Man Narain versus Budan Saheb
Abdullah Saheb and AIR 1937 Oudh Page
170 Shah Mohammad Khan vs. Ahmad Ali
Khan.

Jaitu and Genda Lal supported
the plaintiff's case and the suits against
them were decreed. The statement of
Umrao defendant in suit no.21 had been
ovassive. He stated that Bhawani had been
cultivating after his death he cultivated it
vaise hec which shows as evasiveness.
Thus, there is no preponderance of
evidence of sub-tenancy of defendants to
be sub-tenants of the plaintiff. Rent receipts
Ex. P-10 11 and P-12 prove in the names of
Punni Bacchu Bikhu, respectively proves
the plaintiffs case against defendant of suit
no. 22 and suit against them was rightly
decreed.

It is, therefore, clear that the
plaintiffs have proved their case to be hilt
that the defendants are their sub-tenants
and they are libale to be ejected from the
disputed plots and all the suits of the
plaintiffs are liable to be decreed and the
judgments and decree passed by the lower
appellate court are liable to be set aside and
the judgments and decree passed by the
trial Court are liable to be confirmed
regarding suits of plots in the suits which
were decreed and are liable to be set aside
regarding the suits or the plots in the suits
which were dismissed and all the suits are
liable to be decreed with costs althrough.

15. In view of the above, all the 5
appeals are allowed and the judgments and
decree passed by the lower appellate court
are set aside and the judgments and decree
passed by the trial court regarding the suits
and the plots for which the suits were
decreed are confirmed and the judgments
and decree passed by the trial court
dismissing the suits or dismissing the suits
regarding from plots in them are set aside
and the suits for the plots in these suits also
the plaintiffs suits stand decree i.e. all the 5
suits are decreed with costs for ejectment of
all the defendants from all the disputed
plots."

7. Sri H.N. Singh, learned Senior
Advocate assisted by S/Sri assisted by S/Sri
S.K. Verma, Vineet Kumar Singh, S.K.
Singh
and
Brijesh
Kumar
Shukla,
Advocates for petitioners has submitted
that trial Court has not considered the effect
12 All. Dindyal & Ors. Vs. Board of Revenue & Ors.
247
of amendment i.e. land in dispute was
admittedly to be a land given as a Grant,
therefore, provisions of Crown Grants Act
(later on known as Government Grants
Act) would alone be applicable. However,
during suit, effect of it were not considered.

8. Learned Senior Advocate has
further submitted that during First Appeal
which is in continuation of suit, aforesaid
issue was raised and therefore, issue of
maintainability
was
considered
and
therefore in view of Amended Section of
Government Grants Act wherein it was
provided that provisions of U.P. Tenancy
Act, 1939 and Agra Tenancy Act, 1926
would not be applicable, therefore, claim of
plaintiffs that they are 'sir holders' and
defendants were sub-tenants was rightly
rejected. Rights could be settled only on
basis of recital of the Grant.

9. Learned Senior Advocate has
further submitted that the Second Appellate
Court has passed an order of reversal,
however, provisions of Section 100 of CPC
either before Amendment or after it were
not considered i.e. neither substantial
questions of law were framed nor a finding
was returned that decision was contrary to
law or failed to determine some material
issue of law or there was any substantial
error or defect in procedure prescribed by
the Code.

10. Learned Senior Advocate has
further referred findings returned by the
Board of Revenue in the Second Appeal
that "8. Lower Appellate Court wrongly
construed the Grant to ancestors of
plaintiffs to be invalid for want of a
compliance of Section 16(5) of Agra
Tenancy Act and also that of provisions
of Section 18 of that Act were not
complied with." and submitted that First
Appellate Court has not held Grant to
ancestors of plaintiffs to be invalid rather
First Appellate Court has held that since
it was a grant under Crown Grants Act
(Government Grants Act), therefore, right
on land in dispute will be decided in
terms of provisions of said Act and as
referred above, Section 2 and 3 (as
amended)
of
said
Act
specifically
provides that provisions of U.P. Tenancy
Act, 1939 and Agra Tenancy Act, 1926
would not be applicable, therefore, claim
on basis of said Act as raised by the
plaintiffs was rejected and suit was held
to be not maintainable, therefore, above
referred
findings
were
absolutely
perverse.

11. Learned Senior Advocate has
further referred that Board of Revenue in
paragraph 12 of impugned order has held
that provisions of U.P. Tenancy Act,
1939 or Agra Tenancy Act, 1926 would
not be applicable for invalidating Grant
but other provisions of these Acts are
applicable and that grants being of
occupancy right, plaintiffs are entitled to
file a suit for ejectment.

Learned Senior Advocate has
further submitted that aforesaid findings
are not only self-contrary but against the
provisions of Sections 2 and 3, as
amended, of Government Grants (UP
Amendment)
Act,
1960
which
specifically provides that entire U.P.
Tenancy Act, 1939 or Agra Tenancy Act,
1926 would not be applicable.

12. None appeared on behalf of
contesting respondents, therefore, I have
perused the counter affidavit filed by one of
respondents. So far as non maintainability
of suit is concerned, reply of respondents is
quoted below :-
248 INDIAN LAW REPORTS ALLAHABAD SERIES

"10.
That
the
contents
of
paragraph 13 of the petition are incorrect.

(a) The suits were maintainable.
The suits were in accordance with the
Government Grants Act. In fact the defence
that the defendants acquired rights under
Section 180(2) of U.P. Tenancy Act ran
counter to it and was hit, if at all, by the
provisions of Government Grants Act,
1860 as amended in Uttar Pradesh.

(b)
further
the
question
of
maintainability on the ground that the
Government Grants as amended in Uttar
Pradesh was not at all raised in the written
statements and hence it could not be raised
for the first time at the appellate stage. The
learned Additional Commissioner acted
under a misconception of law. The
defendants had full opportunity to contest
the suit and the plaint could not be rejected
at the appellate stage. The suits filed by the
plaintiffs-respondents were maintainable in
law.

11. That the contents of para 14
of the petition are incorrect. The case of the
plaintiffs-respondents was consistent from
the very beginning and they claimed
occupancy rights in their favour which
accrued to them under law on the basis of
the grant made in their favour by the
Government. In the court of Assistant
collector, First Class, defendants did not
raise any plea against the maintainability of
the suits and as such there was no question
of denying that the land in dispute is nazul
land. This question was raised for the first
time
before
the
learned
Additional
Commissioner
as
stated
earlier.
The
allegations made are against the material on
record. The correct position can be
ascertained from the judgments of the
Court below.

12. That the contents of para 15
of
the
petition
are
innocent
and
misconceived. The provisions of Section
16, 17 and 18 of Agra Tenancy Act 1926
and the restrictions contained therein were
not applicable in view of Section 2 of
Government Grants Act as amended and
applicable
in
Uttar
Pradesh.
The
registration of the instrument was not at all
necessary and the Government could grant
occupancy rights irrespective of the alleged
restrictions contained in Agra Tenancy Act,
1926. Such rights could be granted even on
nazul
land.
The
learned
Additional
Commissioner acted under a misconception
of law. The view taken by respondent-1 is
correct and do not suffer from any error of
law. The suits filed under Section 175 of
U.P.
Tenancy
Act
were
legally
maintainable in law."

13. Heard learned Senior Advocate for
petitioners and perused the record.

14. It is well settled that there is 'no
estoppel against law' (see Krishna Rai
(dead) through LRs vs. Banaras Hindu
University through Registrar and others,
(2022) 8 SCC 715). If a suit is barred by
provisions of any law i.e. issue of
maintainability could be considered at any
stage.
In
present
case,
issue
of
maintainability was not considered by the
trial Court, however, this issue was
specifically raised and considered by First
Appellate Court. The First Appellate Court,
after due consideration of the provisions of
Government Grants Act, held that suit filed
by plaintiffs will be barred since their right
was based on U.P. Tenancy Act, 1936
which would not be applicable in terms of
Amended Section 2 of Government Grants
Act. Relevant Sections are mentioned
hereinbelow :-

"8. After the Government Grants
(U.P. Amendment) Act, 1960 (U.P. Act
No. 13 of 1960) Section 2 of the
12 All. Dindyal & Ors. Vs. Board of Revenue & Ors.
249
Government Grants Act, 1995 stands as
follows:-

"2. Amendment of Sections 2 and
3 of the Act IV of 1898-

For Sections 2 and 3 of the
Government Grants Act 1895, (hereinafter
called the Principle
Act). The following shall be substituted,
and be deemed always to have been
substituted:

2. (1) Transfer of Property Act,
1882, not to apply to Government Grants -
Nothing contained in the Transfer of
Property Act, 1882, shall apply or deemed
over to have applied to any grant or other
transfer of land or of any interest therein,
heretofore made or hereafter to be made, by
or on behalf of the Government to or in
favour of any person whomsoever: and
every such grant and transfer shall be
constructed and take effect as if the said
Act had not been passed.

(2) U.P. Tenancy Act, 1939, and
Agra Tenancy Act, 1928, not to effect
certain reasons made by or on behalf of the
Government - nothing contained in the
U.P. Tenancy Act, 1939 or the Agra
Tenancy Act, 1926, shall affect, or deem to
have ever affected any rights, created,
conferred or granted, whether before or
after the date of the passing of the
Government Grant (U.P. Amendment) Act,
1960, by leases of land by or on behalf of,
Government in favour of any person: and
every such creation, confirment or grant
shall be constructed and take effect,
notwithstanding anything to the contrary
contained in the U.P. Tenancy Act, 1939,
or the Agra Tenancy Act, 1929.

(3) Certain leases made by or on
behalf of the Government to take effect
according to their tenant - All provisions,
restrictions, conditions and limitations
contained any such creation, confirment or
grant referred to in Section 2, shall be valid
and take effect according to their tenor; any
decree or direction of a Court of law or any
rule of law, statute or enactment of the
legislature, to the contrary notwithstanding:

Provided that nothing in this
Section shall prevent, or be deemed over to
have prevented the effect of any enactment
relating to the acquisition of property, Land
Reforms or the imposition of ceiling on
agriculture land.

This sub-section 2 lays down that
every such creation confirment or grant
shall be constructed and take effect
notwithstanding anything to the contrary,
contained in U.P. Tenancy Act, 1939, or
Agra Tenancy Act, 1929. The implements
that even if the grant is to the contravention
of the provision of the U.P. Tenancy Act or
the Agra Tenancy Act, the creation, the
confirment or grant shall not be constructed
to be invalid on such ground. Therefore, the
lower Appellate Court wrongly constructed
the grant to the ancestor of the plaintiffs to
be invalid for want of a compliance of
Section 16 (5) of Agra Tenancy Act and
also that provisions of Section 18 of that
Act were not complied with. In view of
Section 2 as amended by U.P. Act XIII of
1907 any provisions of any law except
provided by that section are not to be
constructed for invalidating the grant.
Therefore, in not setting the grant register
the grant cannot be invalidated and the
provisions of Section 18 of Agra Tenancy
Act for creation of occupancy right when if
not complied with cannot debar confirment
of occupancy right by the State on the
ancestor of the plaintiffs. Therefore, lower
Appellate Court committed illegality in
deciding otherwise."

15. It is being admitted position that
land in dispute was given on Grant to
ancestors of plaintiffs, therefore, any right
250 INDIAN LAW REPORTS ALLAHABAD SERIES
would be accrued only in terms of recital of
Grant as well as in terms of Crown Grants
Act (later on known as Government Grants
Act).

16. First Appellate Court has rightly
considered the relevant provisions and held
that since provisions of U.P. Tenancy Act,
1939 and Agra Tenancy Act, 1926 would
not be applicable to land in dispute,
therefore, all suits were dismissed under
Order VII Rule 11 CPC.

17. Board of Revenue in Second
Appeal has accepted that land in dispute
was a land given under Grant and as such
in view of provisions of Crown Grants Act
(later on known as Government Grants
Act) and provisions of U.P. Tenancy Act,
1939 and Agra Tenancy Act, 1926 would
not be applicable, however, despite above
observations, Board of Revenue has erred
in further observing that other provisions of
both Tenancy Acts would be applicable
without
any
specific
ground.
Said
observation is self contrary, which render
impugned order illegal.

18. If the provisions of both Tenancy
Acts are not applicable, the Second
Appellate Court has wrongly held that
some part of it is still applicable, despite
there was no such differentiation in
amended provisions of the Government
Grants (UP Amendment) Act, 1960 (U.P.
Act No. 13 of 1960) as well as no basis was
recorded by the Board of Revenue.

19. In aforesaid circumstances, the
findings returned by Board of Revenue are
perverse, contrary to law as well as are selfcontrary.

20. Accordingly, writ petition is
allowed. Impugned order is set aside, and,
therefore, keeping in view that interim
order remained in currency, therefore, its
legal consequence shall follow.
----------
(2024) 12 ILRA 250
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ B No. 5994 of 2012

Hindi Vidyapeeth ...Petitioners
Versus
Hindi Sahitya Sammelan & Anr.
 ...Respondents

Counsel for the Petitioners:
Anil Kumar Mehrotra,Kunal Ravi Singh,
V.K.S. Chaudhary

Counsel for the Respondents:
Amar Nath Tiwari,Azad Rai,Manish Kumar
Jain,Radhey
Shyam
Mishra,Ramesh
Chandra Dwivedi,Suresh Chandra Mishra

गवर्नमेंट ग्रांट्स एक्ट, 1895 - उत्तर प्रदेश भू-
ररजस्व अधिधर्यम, 1901; िररर: 33/39 -
वरद पोषणीयतर - ध ांदी सरध त्य सम्मेलर्, प्रयरग'
वषन १९१४ में पांजीकृत ुई। उत्तर प्रदेश सरकरर र्े लगभग
१०० बीघर धववरधदत भूधम कर अधिग् ण 'ध ांदी
धवद्यरपीठ, प्रयरग' की स्थरपर्र के धलए धकयर,
धजसमें स्पष्ट थर धक धववरधदत भूधम पर केवल 'ध ांदी
धवद्यरपीठ, प्रयरग' की स्थरपर्र ोगी। य भूधम
ररजस्व करगजरत में करधबज़ र ी और १४२० फसली में
श्रेणी २ में दजन थी। वषन १९९८ में 'ध ांदी सरध त्य
सम्मेलर्, प्रयरग' र्े उत्तर प्रदेश भूधम ररजस्व
अधिधर्यम, १९०१ की िररर ३३/३९ के अांतगनत एक
वरद दरयर धकयर धक धवपक्षी 'ध ांदी धवद्यरपीठ, प्रयरग'