# Jagat Pal & Ors v. D.D.C. Lakhimpur Kheri & Ors

- **Citation:** (2024) 5 ILRA 2328
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-17
- **Case number:** Writ-B No. 4151 of 2016
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagat-pal-ors-v-d-d-c-lakhimpur-kheri-ors-52070
- **Pages:** 19

## Headnote

A. Constitution of India,1950 - Article 226
-
While
exercising
discretionary
jurisdiction under Article 226, the High
Court must ensure that justice is done,
equity
is
upheld,
and
injustice
is
eliminated. One of the objectives of equity
is to promote honesty and fair play. If any
unfair advantage has been gained by a
party prior to invoking the jurisdiction of
the High Court, the Court can take into
account such an unfair advantage and
may require the party to relinquish the
gain before granting relief. Court should
not set aside an order that appears to be
illegal if the effect is to revive another
illegal order, as such an action would
perpetuate illegality and confer an undue
benefit on the undeserving party or
person. (Para 9, 14)

B. Civil Law - Compromise - New Right
cannot be created - If a person had no
right under the statute, then in such
position, any such right could not be
recognised or admitted by a compromise
or new right could not be created
throughout compromise or conciliation.

C. U.P. Consolidation of Holdings Rules,
1954,
Rule
25-A
-
Compromise
-
Genuineness of the Compromise - In the
present matter, the claimant, Jagannath
(predecessor-in-interest
of
the
petitioners), failed to prove before the
S.O.C. that Bhawani was the original
tenure holder of the disputed land. No
documents or evidence were placed on
record to establish Bhawani as the original
tenure holder. The division of shares in the
land was not accorded to all legal heirs of
Bhawani, and no justifiable reasons were
provided for the distribution of land solely
between
Jagannath
and
Rambilas,
excluding other heirs. All parties to the
compromise,
including
Rambilas/respondent, were identified by
Sri Triveni Sahai Gupta, Advocate, who
was engaged by the claimant. The
identification
casts
doubt
on
the
authenticity of the compromise. Rambilas
was assaulted by Shrichand (predecessorin-interest of petitioners No. 2 to 7). S.O.C.
failed to record satisfaction regarding the
genuineness of the compromise, including
the legal validity of the agreement
between the parties. Compromise dated
06.03.1979, which forms the basis of the
S.O.C.'s order dated 18.06.1985, was
neither lawful nor genuine.

Dismissed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,960 of 63,710. This is a partial read: ask again with offset=39960 for what follows._

2328 INDIAN LAW REPORTS ALLAHABAD SERIES
and order dated 03.10.1978 passed by
respondent no. 3 i.e. Consolidation Officer.

24. The present writ petition is
dismissed.
----------
(2024) 5 ILRA 2328
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ-B No. 4151 of 2016

Jagat Pal & Ors. ...Petitioners
Versus
D.D.C. Lakhimpur Kheri & Ors.
 ...Respondents

Counsel for the Petitioners:
Satendra Nath Rai

Counsel for the Respondent:
C.S.C., Ashok Kumar, D.P. Singh

A. Constitution of India,1950 - Article 226
-
While
exercising
discretionary
jurisdiction under Article 226, the High
Court must ensure that justice is done,
equity
is
upheld,
and
injustice
is
eliminated. One of the objectives of equity
is to promote honesty and fair play. If any
unfair advantage has been gained by a
party prior to invoking the jurisdiction of
the High Court, the Court can take into
account such an unfair advantage and
may require the party to relinquish the
gain before granting relief. Court should
not set aside an order that appears to be
illegal if the effect is to revive another
illegal order, as such an action would
perpetuate illegality and confer an undue
benefit on the undeserving party or
person. (Para 9, 14)

B. Civil Law - Compromise - New Right
cannot be created - If a person had no
right under the statute, then in such
position, any such right could not be
recognised or admitted by a compromise
or new right could not be created
throughout compromise or conciliation.

C. U.P. Consolidation of Holdings Rules,
1954,
Rule
25-A
-
Compromise
-
Genuineness of the Compromise - In the
present matter, the claimant, Jagannath
(predecessor-in-interest
of
the
petitioners), failed to prove before the
S.O.C. that Bhawani was the original
tenure holder of the disputed land. No
documents or evidence were placed on
record to establish Bhawani as the original
tenure holder. The division of shares in the
land was not accorded to all legal heirs of
Bhawani, and no justifiable reasons were
provided for the distribution of land solely
between
Jagannath
and
Rambilas,
excluding other heirs. All parties to the
compromise,
including
Rambilas/respondent, were identified by
Sri Triveni Sahai Gupta, Advocate, who
was engaged by the claimant. The
identification
casts
doubt
on
the
authenticity of the compromise. Rambilas
was assaulted by Shrichand (predecessorin-interest of petitioners No. 2 to 7). S.O.C.
failed to record satisfaction regarding the
genuineness of the compromise, including
the legal validity of the agreement
between the parties. Compromise dated
06.03.1979, which forms the basis of the
S.O.C.'s order dated 18.06.1985, was
neither lawful nor genuine.

Dismissed. (E-5)

List of Cases cited:

1. Gadde Venkateswara Rao Vs Govt. of A.P AIR
1966 SC 828

2. Maharaja Chintamani Saran Nath Shahdeo Vs
St. of Bihar AIR 1999 SC 3609;

3. Mallikarjuna Mudhagal Nagappa Vs St. of
Karn. AIR 2000 SC 2976;

4. Chandra Singh Vs St. of Raj. AIR 2003 SC
2889;
5 All. Jagat Pal & Ors. Vs. D.D.C. Lakhimpur Kheri & Ors.
2329
5. St. of Uttaranchal Vs Ajit Singh Bhola 2004 6
SCC 800;

6. St. of Orissa Vs Mamata Mohanty 2011 3 SCC
436)

7. Mohammad Swalleh Vs Third A.D.J., Meerut;
(1988) 1 SCC 40

8. Shangrila Food Products Ltd. Vs LIC, (1996) 5
SCC 54

9. Roshan Deen Vs Preeti Lal; (2002) 1 SCC
100

10. Ramesh Chandra Sankla & ors.Vs Vikram
Cement & ors.(2008) 14 SCC 58

11. Shiv Prasad Vs Deputy Director of
Consolidation, Ghazipur & ors., 2006 (101) RD
624

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Sri Satendra Nath Rai,
learned counsel for the petitioners, Sri
Hemant Kumar Pandey, learned counsel
for the State as also Sri D.P. Singh,
learned
counsel
for
the
private
respondents.

2. By means of the present
petition, a challenge has been made to
the order dated 19.01.2016 passed by
respondent No.1/Deputy Director of
Consolidation, Lakhimpur Kheri (in
short 'D.D.C.'), in Revision No. 340 of
2011
(Rameshwar
&
Others
vs.
Shrichand & Others).

3. Brief facts of the case are as
follows:

(i) One Bhawani died leaving
behind his four sons namely Jagannath,
Niranjan, Makka and Mangre (issue less).
The pedigree indicated in Para 4 of the
petition is as under:-

 (ii) It is alleged that Bhawani was
the original tenure holder of the land in
issue i.e. Khata No.371 but to establish this
fact, no document has been placed on
record.
(iii) The name of Makka S/o
Bhawani was recorded in the basic year
Khatauni of Khata No.371. At the time of
initiation of consolidation proceedings in
the village namely Khaithava, Pargana-
Nighasan, District- Lakhimpur Kheri, in
terms of U.P. Consolidation of Holdings,
Act, 1953 (is short the 'Act') and Rules of
1954 made thereunder, the name of Makka
S/o Bhawani was recorded in revenue
records.
(iv) A compromise was filed on
31.07.1975 before Assistant Consolidation
Officer (A.C.O.) in regard to Khata No.371.
In this Compromise it was prayed that in
place of late Makka S/o Bhawani, the
names of Rambilas S/o Makka, Girdhari
2330 INDIAN LAW REPORTS ALLAHABAD SERIES
S/o Niranjan, Mohanlal S/o Niranjan and
Jagannath S/o Bhawani be mentioned in
revenue records of Khata No. 371.
(v) The A.C.O.
rejected
the
proposal of CH Form 4 and directed to enter
the name of Rambilas S/o Makka in
revenue records.
(vi) It would be apt to indicate that
contesting respondents No.4 to 6 namely
Rambilas, Ram Bahadur and Ramesh
Kumar are sons of Rambilas.
(vii) Being aggrieved by the order
of A.C.O, Jagannath S/o Bhawani and
others filed an Appeal No. 1675 under
Section 11 of the Act before the Settlement
Officer
of
Consolidation
(S.O.C.)/respondent No.2 and vide order
dated 09.09.1976, the S.O.C./respondent
No.2 allowed the appeal and remanded the
matter back to Consolidation Officer
(C.O.)/respondent No.3.
(viii) Before the C.O./respondent
no.3, a fresh compromise dated 21.08.1978
was filed in Misc. case no.1705/5859 of
1978 u/s 9A(2) of the Act. As per this
compromise, the land of Khata no.371 was
of late Bhawani and accordingly, the same
be provided to Jagannath S/o Bhawani-1/3
share, Girdhari S/o Niranjan-1/6 share,
Mohanlal S/o Niranjan-1/6 share, Rambilas
S/o Late Makka-1/3 share.
(ix) It would be apt to indicate that
all the parties (claimants and opposite
party/Rambilas) of the compromise dated
21.08.1978 filed in the case aforesaid were
identified by Sri Triveni Sahai Gupta,
Advocate, who was engaged by the
claimants.
(x) The C.O./ respondent No.3 vide
order
dated
17.11.78
rejected
the
compromise dated 21.08.1998 filed in
Misc. Case No.1705/5859 of 1978 and
directed to record the name of Rambilas in
place of Makka, being his legal heir, in
revenue records.
(xi) The C.O./respondent No.3,
rejected the compromise after observing
that it has not been established that land in
issue is an ancestral land and as such if
compromise is accepted, then it would
amount to transfer of property, which is not
permissible.
(xii) Being aggrieved by order
dated 17.11.78 passed by C.O/respondent
No.3 in Misc. Case No.1705/5859 of 1978,
Jagannath S/o Bhawani, Girdhari and
Mohanlal both sons of Niranjan filed an
Appeal No.163 (Jagannath and others vs.
Rambilas) before S.O.C/respondent no.2.
(xiii) Before proceeding further, it
would be relevant to mention that following
question was put to the counsel for the
petitioner during course of hearing.
"Whether
without
establishing/proving the fact that the
property/land is an ancestral property, the
rights in land can be provided by the
authorities under the Act or the co-option is
permissible under the Act or under U. P.
Zamindari Abolition and Land Reforms
Act, 1950 (in short 'Z. A. & L. R. Act') and
compromise of such nature would be lawful
and the same could be acted upon and the
same would be enforceable in law and such
nature of agreement/compromise will
confer any right"
(xiv) In response to aforesaid, the
counsel for the petitioner could not place
any provision of law or authority to
establish that by way of a compromise,
rights in the land can be provided without
establishing/ proving the fact that the land
is an ancestral property.

(xv) Being aggrieved by the order
dated 17.11.1978 passed by Consolidation
Officer (C.O.)/ respondent No. 3 in Misc.
Case No. 1705. 75859 of 1978 (Jagannath
S/o of Bhawani, Girdhari Lal and Mohan
Lal both sons of Niranjan) filed an appeal
5 All. Jagat Pal & Ors. Vs. D.D.C. Lakhimpur Kheri & Ors.
2331
no. 163 (Jagannath and Ors vs. Rambilas)
before the S.O.C./ respondent No. 2.
(xvi) In the aforesaid Appeal No.
163, again a fresh compromise dated
06.03.1979 was filed.
(xvii)
The
parties
to
the
compromise dated 06.03.1979, including
the respondent in appeal namely Rambilas,
were identified by Sri Triveni Sahai Gupta,
Advocate, who was engaged by the
appellants namely Jagannath, Girdhari and
Mohan Lal.
(xviii) It is to be noted that parties
to the compromise dated 21.08.1978 filed
before the C.O./ respondent No. 3 and
parties to the compromise dated 06.03.1979
filed before the S.O.C./ respondent No. 2
were identified by Sri Triveni Sahai Gupta,
Advocate, who was engaged by the persons
claiming right over Khata No. 371 i.e.
predecessors-in-interest of the petitioners.
(xix) On aforesaid fact related to
identification of the parties to compromise,
the following question was put to the
counsel for petitioner:
"Whether on compromise, an
advocate appearing for claimant/plaintiff
also
can
also
identify
respondent/defendant?"
(xx) In response to the aforesaid
question, the counsel for petitioner stated
that he cannot.
(xxi) The identification, aforesaid,
as also the observations of C.O./ respondent
No. 3 in the order dated 17.11.1978 that it
has not been established that land in issue is
ancestral land and as such if compromise is
accepted then it would amount to transfer
of property which is not permissible,
creates doubt regarding entering into the
compromise by Rambilas.
(xxii) The Appeal No. 163, referred
above, was decided on the basis of the
compromise on 31.03.1979.
(xxiii) As per compromise dated
06.03.1979, 1/3 share was to be provided to
Jagannath and 2/3 share was to be provided
to Rambilas in Khata No. 371.
(xxiv)
The
Appellate
Court/S.O.C./respondent No.2 vide order
dated 31.03.1979 passed in Appeal No. 163
provided 1/3 share to Jagannath, 1/6 share
each to Girdhari and Mohan Lal and 1/3
share to Rambilas.
(xxv) Rambilas, challenging the
order dated 31.03.1979, filed a revision
before the D.D.C./respondent No.1 under
Section 48 of the Act registered as Revision
No. 3900 of 1979 (Rambilas vs. Jagannath
and Ors).
(xxvi)
The
D.D.C./respondent
No.1, after considering the terms of
compromise and order dated 31.03.1979,
vide order dated 17.09.1989 allowed the
revision and set aside the order dated
31.03.1979 passed in Appeal no. 163 and
remanded the matter back to S.O.C./
respondent no. 2 for deciding the appeal
afresh.
(xxvii)
The
S.O.C./respondent
No.2,
thereafter,
vide
order
dated
18.06.1885 allowed the appeal, which at
relevant point of time was registered as
Appeal No.1136, on the basis of terms of
compromise dated06.03.1979, vide order
dated 18.06.1885.
(xxviii) Being aggrieved by order
dated 18.06.1985 passed in Appeal No.
1136 by S.O.C./respondent No.2, Rambilas
preferred an application dated 24.07.1985
praying therein that order dated 18.06.1885
be set aside and matter be heard and
decided on its own merits.
(xxix) Moving of application dated
18.07.1885 by Rambilas fortifies the view
of this Court that the compromise dated
21.08.1978 & 06.03.1979, respectively,
are/ were doubtful.
2332 INDIAN LAW REPORTS ALLAHABAD SERIES
(xxx) The application preferred by
Rambilas dated 24.07.1985 for recall and
setting aside the order dated 18.06.1985
was dismissed for want of prosecution vide
order dated 23.03.1990 on the statement
given by Rambilas. This further, creates
doubt
regarding
compromise
dated
21.08.1978.
(xxxi) Rambilas on coming to
know about the order dismissing the
application for restoration for want of
prosecution preferred an application dated
04.06.1992 for recall of order dated
23.03.1990, inadvertently indicated as
order dated 14.10.1990.
(xxxii)
The
application
dated
31.06.1992 was again dismissed for want of
prosecution on 02.07.1998.
(xxxii) To recall the order dated
02.07.1998,
Rambilas
preferred
an
application dated 02.07.1998.
(xxxiv) During the pendency of the
application dated 02.07.1998, Rambilas
died and thereafter substitution application
dated 03.05.1999 was preferred by the legal
heirs of Rambilas and the same was
allowed on the same day i.e on 03.05.1999.
(xxxv) The aforesaid application
for restoration dated 02.07.1998 preferred
by Rambilas was again dismissed for want
of prosecution on 05.02.2003.
(xxxvi) After expiry of several
years from the date of rejection of
restoration
application
for
want
of
prosecution vide order dated 05.02.2003,
an application under Rule 109 of the Rules
of 1954 was filed, whereupon an order was
passed on 06.04.2011 and thereafter the
private respondents no.4 to 6, legal heirs of
Rambilas, preferred an appeal dated
11.07.2011 which was dismissed being not
maintainable vide order dated 01.01.2015
passed by S.O.C./respondent no.2.
(xxxvii)
After
order
dated
01.01.2015 passed by S.O.C./respondent
No.2,
indicated
above,
the
private
respondents filed the Revision No. 340 of
2011 challenging the order(s) dated
18.06.1885, 23.03.1990 and 05.02.2003.
(xxxviii) The revision aforesaid
was filed alongwith an application for
condonation of delay. A perusal of the
application of condonation of delay reflects
that the same was not properly drafted. The
delay in challenging the order dated
18.06.1885, 23.03.1990 & 05.02.2003 was
not properly explained.
(xxxix) It would be apt to indicate
that all the revisionists/private respondents
are rustic villagers and in this view of the
matter, their application for condonation of
delay has to be dealt with.
(xl) In the objection to the
application for condonation of delay, the
petitioners specifically pleaded that the
revisionists/private respondents No.4 to 6
were
aware
about
the order
dated
18.06.1985
as
their
application
for
substitution was allowed vide order dated
03.05.1999 and accordingly the application
is liable to be rejected and consequently, the
revision filed after delay of about 26 years
questioning the order dated 18.06.1885 be
also dismissed. In this objection, petitioners
also stated that the appeal was decided in
terms of compromise on 18.06.1985 that
too in compliance of the order dated
17.09.1981 passed in Revision No.3900 of
1979 filed by Rambilas (predecessor-ininterest of the private respondents) and as
such also the revision is liable to be
dismissed.
(xli) The D.D.C./respondent No.1
after considering the relevant aspect of the
case allowed the revision vide impugned
order dated 19.01.2016, which is an order
of remand. The relevant portion of this
order reads as under:-
"पक्षों द्वारा प्रस्तुत तकट तथा पत्ावली के अवलोकन से
मवमदत है मक प्रमतपक्षी द्वारा जो मवमध-व्यवस्थायें प्रस्तुत की गई हैं,
5 All. Jagat Pal & Ors. Vs. D.D.C. Lakhimpur Kheri & Ors.
2333
वह सभी ममयाद मवन्दु पर ही प्रस्तुत की गई हैं। मजसमें माननीय
उछचतम न्यायालयों ने यह मवचार व्यक्त मकये हैं मक धारा-5 के
अन्तगटत मवलम्ब मर्टण के मलये प्रस्तुत आवेदन-पत् वमणटत लेमकन
न्यायालय को मवलम्ब को माफ करने की शमक्त, यमद पयाटप्त कारण
दशाटते हुए आवेदन मकया गया है। लेमकन पयाटप्त कारण के अभाव
एवं आवेदक ने स्पि भावना से आवेदन नहीं मकया, तो आवेदन
मनरस्त मकये जाने योग्य । चूंमक मनगरानीकताटगण द्वारा मवलम्ब के
सम्बन्ध में जो कारण मदये गये हैं, वह सन्तोर्जनक है, अस्तु
मनगरानीकताटगण धारा 5 भा०पररसी०अमध० का लाभ पाने के
हकदार हैं। अन्य माननीय न्यायालयों द्वारा पाररत आदेशों के सम्बन्ध
में जो मवमध-व्यवस्थायें प्रस्तुत की गई हैं, उनमें भी न्यायालयों ने कहा
है मक यमद न्यायालय के समक्ष प्रस्तुत आवेदन से न्यायालय इस
मनष्कर्ट पर पहुंचता है मक आवेदक ने उमचत एवं स्पि भावना से मांग
की है, तो न्यामयक दृमिकोण से उसे धारा-5 का लाभ भी मदया जा
सकता है। चकबन्दी में स्वत्व के मववाद सदैव के मलये मनणीत मकये
जाते हैं। यमद मनगरानीकताटगण को धारा-5 का लाभ नहीं मदया जाता
है तो वह न्याय से वंमचत रहेगा, यह नैसमगटक मसद्धान्त का उल्लंघन
होगा। अतएव मनगरानीकताटगण को धारा- भा०पररसी०अमध० का
लाभ देकर मनगरानी अन्दर ममयाद स्वीकार करके उसका मनस्तारण
गुण-दोर् पर मकया जाता है।
मववाद आधार वर्ट के खाता संख्या-371 के सम्बन्ध
में है, जो मक्का पुत् भवानी के नाम अंमकत था। तस्दीक खतौनी के
समय मक्का मृतक के वाररस राममवलास बताये गये तथा खाते में
मगरधारी, मोहन लाल पुत्गण मनरंजन व जगन्नाथ पुत् भगवानी का
नाम बतौर सहखातेदार दजट होना बताया गया। सहायक चकबन्दी
अमधकारी के न्यायालय में मदनांक 31-07-1975 को समझौता
दामखल हुआ। सहायक चकबन्दी अमधकारी ने साक्ष्य के अभाव में
सहखातेदारी का तनाजा खाररज कर मदया तथा मृतक मक्का के स्थान
पर राममवलास का नाम बतौर वाररस अंमकत कर मदया। सहायक
चकबन्दी अमधकारी के आदेश के मवरूद्ध जगन्नाथ ने अपील दायर
की, जो मदनांक 09-09-1976 को चकबन्दी अमधकारी को
प्रत्यावमतटत की गई। चकबन्दी अमधकारी के न्यायालय में खाता
संख्या-371 में सहखातेदारी दजट करने हेतु मदनांक 21-081978 को सुलहनामा प्रस्तुत मकया गया, जो चकबन्दी अमधकारी
ने मदनांक 17-11-1978 को कागजी साक्ष्य के अभाव में तथा
अवैधामनक हस्तान्तरण मानकर मनरस्त कर मदया। आराजी राममवलास
के नाम अंमकत रही। चकबन्दी अमधकारी के आदेश के मवरुद्ध
जगन्नाथ आमद ने अपील दायर की, मजसमें मदनांक 06-031979 को सुलहनामा दामखल हुआ, मजसमें अंमकत मकया गया मक
खाते में 1/3 भाग जगन्नाथ व 2/3 राममवलास के नाम रहेगा।
बन्दोबस्त अमधकारी चकबन्दी ने अपील में मदनांक 31-031979 को मगरधारी व मोहन लाल का भी 1/3 अंश प्रत्येक दजट
कर मदया। इस आदेश के मवरुद्ध राममवलास ने मनगरानी दायर की,
जो मदनांक 17-09-1981 को बन्दोबस्त अमधकारी चकबन्दी को
प्रत्यावमतटत कर दी गई। बन्दोबस्त अमधकारी चकबन्दी ने सुलहनामा
के आधार पर अपील में आदेश पाररत कर मदया। यद्यमप सहायक
संचालक चकबन्दी ने अपने आदेश मदनांक 17-09-1981 में इस
तथ्य का उल्लेख मकया है मक सुलहनामे में यह अंमकत नहीं है मक
मववामदत भूमम पैतृक है, परन्तु बन्दोबस्त अमधकारी चकबन्दी ने मबना
मकसी आधार के आदेश पाररत कर मदया है, इसमलए आदेश मनरस्त
करके ररमाण्ड मकया जाता है। पक्षों द्वारा जो सुलहनामा बन्दोबस्त
अमधकारी चकबन्दी के न्यायालय में दामखल मकया गया है, उसमें
मनम्न शजरा प्रस्तुत मकया है-

सुलहनामे में उल्लेख मकया है मक खाता संख्या-371
में 1/3 जगन्नाथ व 2/3 राममवलास के नाम भूमम दजट होगी।
मगरधारी व मोहनलाल को कोई महस्सा नहीं ममलेगा। यद्यमप इस तथ्य
का उल्लेख नहीं है मक भूमम पैतृक है अथवा मकस आधार पर दो
खातेदारों का अंश ही खाते में मनधाटररत मकया गया है। यमद पत्ावली
को चकबन्दी अमधकारी के न्यायालय को प्रत्यावमतटत मकया जाता है,
तो सभी पक्ष अपना-अपना साक्ष्य प्रस्तुत कर सकेंगे तथा वाद का
गुण-दोर् पर मनणटय हो जायेगा, जो न्याय संगत प्रतीत होता है।
पत्ावली चकबन्दी अमधकारी को प्रत्यावमतटत मकये जाने योग्य है।

आदेि

उपरोक्तानुसार रामेश्वर, रामबहादुर, रमेश कुमार पुत्गण
राममवलास द्वारा यामजत मनगरानी संख्या-340/11 स्वीकार की
जाती है। चकबन्दी अमधकारी द्वारा वाद संख्या-1705/5659
धारा-9क (2) में पाररत आदेश मदनांक 17-11-1978 तथा
बन्दोबस्त अमधकारी चकबन्दी द्वारा अपील संख्या-1136 में पाररत
आदेश मदनांक 18-06-1985/23-03-1990/05-022003 खमण्डत मकये जाते हैं। पत्ावली चकबन्दी अमधकारी को इस
2334 INDIAN LAW REPORTS ALLAHABAD SERIES
मनदेश से प्रत्यावमतटत की जाती है मक पक्षों को साक्ष्य का अवसर
देकर वाद का मनस्तारण गुण-दोर् पर करें। पक्ष चकबन्दी अमधकारी
के न्यायालय में मदनांक 27-01-2016 को उपमस्थत हों। पत्ावली
बाद आवश्यक कायटवाही दामखल दफ्तर हो।"

4. Assailing the impugned order
dated 19.01.2016, learned counsel for the
petitioner submitted as under:

(i) Challenging the order(s) dated
18.06.1985, 23.03.1990 and 05.02.2003
passed by the S.O.C/respondent No.2 in an
Appeal No.1163 the revision was filed in
the month of August 2015, and that too
without proper explanation for condoning
the huge delay.
(ii) The order dated 31.03.1979 was
passed on the basis of compromise deed
dated 06.03.1979 entered into between the
parties, which was filed before the
S.O.C./respondent
No.2
and
this
compromise was admitted to Rambilas
(predecessor-in-interest of the private
opposite parties namely Rameshwar, Ram
Bhadur and Ramesh Kumar, all sons of
Late Rambilas), as would appear from the
memo of revision filed by Rambilas
challenging the order dated 31.03.1979
passed by S.O.C./respondent No.2 on
limited ground related to share in the land
in issue as share indicated in the
compromise dated 06.03.1979 i.e. 2/3 share
was
not
provided
to
Rambilas
by
S.O.C./respondent No.2, and the same is
apparent from the memo of revision filed
by Rambilas wherein he specifically
indicated that while passing the order dated
31.03.1979, the S.O.C./respondent No.2
ignored
the
Clause/Para-5
of
the
compromise.
(iii) As per the Clause/Para-5 of the
compromise
deed
dated
06.03.1979,
Rambilas was entitled to 2/3 of the land in
issue, however, the S.O.C./respondent No.2
provided only 1/3 of the share to Rambilas
and for this reason, Rambilas approached
the revisional authority challenging the
order
dated
31.03.1979
passed
by
S.O.C./respondent No.2 and vide order
dated 17.09.1989 the D.D.C./respondent
No.1 remanded the matter back to the
S.O.C./respondent No.2 to pass fresh order
after taking note of the terms of the
compromise entered into between the
parties.
(iv) The S.O.C./respondent No.2 in
compliance of order dated 17.09.1981
passed by D.D.C/respondent No.1 in the
revision filed by Rambilas decided the
Appeal in terms of the compromise deed
dated
06.03.1979
vide
order
dated
18.06.1985 and provided 2/3 share in the
land/property in issue to Rambilas.
(v) Rambilas, for the reasons best
known to him, filed an application for recall
of order dated 18.06.1985, which was
dismissed for want of prosecution on
23.03.1990 and thereafter Rambilas preferred
an application on 04.06.1992 praying therein
to recall the order dated 14.10.1990, which
was dismissed for want of prosecution on
02.07.1998 and thereafter on 02.07.1998
itself the application for recall of order dated
02.07.1998 was moved.
(vi) During the pendency of the
application dated 02.07.1998, Rambilas died
and the respondents no.4 to 6 moved an
application for substitution on 03.05.1999,
which was allowed on the same day.
(vii) From the aforesaid, it is evident
that since 03.05.1999 the respondents No.4 to
6 were aware about the order dated
18.06.1985 and in the application for
condonation of delay, the date of knowledge
of order dated 18.06.1985 has been indicated
as 05.07.2011.
(viii) In view of above, the delay in
filing the revision challenging the order(s)
dated
18.06.1985,
23.03.1990
and
05.02.2003 was not properly explained and
5 All. Jagat Pal & Ors. Vs. D.D.C. Lakhimpur Kheri & Ors.
2335
as such in in view of the same also the facts
aforesaid the D.D.C./respondent No.1
committed error of law and facts both in
allowing the revision vide impugned order
dated 19.01.2016.

5. Opposing the present petition,
Sri D.P. Singh, learned counsel for the
private respondents, submitted that the
order dated 18.06.1985, whereby 1/3 share
of the land in issue was provided to
Jagannath (predecessor-in-interest of the
petitioners No.1 to 7), was obtained by
Jagannath by playing fraud before the
authorities under the Act. To substantiate
the same, he submitted as under:

(i) Initially a compromise was filed
before the A.C.O. on 31.07.1975, however,
the same was rejected for want of evidence
pertaining to co-tenancy and therefore in
place
of
Makka
the
name
of
Rambilas(predecessor-in-interest
of
respondents No.4 to 6) was recorded in the
revenue records.
(ii) The order of A.C.O. was
challenged in Appeal and the appellate
authority vide order dated 09.09.1976
remanded the matter back to the C.O.
(iii) Before the C.O. a fresh
compromise dated 21.08.1978 was filed by
Jagannath, Mohan Lal, Girdhari and
Rambilas and as per this compromise deed,
Jagannath was entitled to 1/3 share;
Girdhari was entitled to 1/6 share, Mohan
Lal was entitled to 1/6 and Rambilas son of
Makka was entitled to 1/3 share. This
compromise dated 21.08.1978 was also
rejected vide order dated 17.11.1978 by the
C.O.
(iv) Thereafter, the order dated
17.11.1978 was challenged before the
S.O.C. In the appeal, another compromise
dated 06.03.1979 was filed. As per this
compromise, Jagannath S/o Bhawani was
entitled to 1/3 share and Rambilas S/o
Makka was entitled to 2/3 share and the
share as indicated in compromise dated
06.03.1979
was
provided
by
the
S.O.C./respondent No.2 vide order dated
18.06.1985,
which
was
passed
in
compliance of order dated 17.09.1981
passed by the D.D.C./respondent No.1 in
the revision alleged to be filed by
Rambilas/(predecessor-in-interest
of
respondents No.4 to 6), and on coming to
know about the order dated 18.06.1985 and
fraud played by Jagannath, Rambilas filed
the application for recall which was
dismissed on 23.03.1990 and thereafter an
application
dated
04.06.1992
was
preferred, which also was dismissed on
02.07.1998 and on 02.07.1998 itself an
application for recall was preferred by
Rambilas.
(v) During the pendency of the
application for recall of order dated
02.07.1998, Rambilas was assaulted on
07.04.1999 by Shrichand/(predecessor-ininterest of the petitioners No.2 to 7) and
Gumani/petitioner
No.2
as
also
by
Gopal/petitioner
No.3
and
Rambilas
succumbed to the injuries sustained and in
relation to the said incident, the trial court
after considering the material evidence on
record convicted three persons under
Section 304(2) IPC vide judgment dated
07.09.2001 passed in Sessions Trial No.51
of 2000 (State Vs. Shrichand and two
others) which is annexed as Annexure No.
CA-1 to the counter affidavit filed by the
private respondents No.4 to 6.

(vi) From the aforesaid, it can be
deduced that on account of the dispute
pertaining to the land in issue i.e. Khata
No.371,
the
above-named
persons
assaulted Rambilas with intention to cause
death, who ultimately expired on account of
the injuries sustained.
2336 INDIAN LAW REPORTS ALLAHABAD SERIES
(vii) The parties to the compromise
dated 21.08.1978 and 06.03.1979 were
identified by Sri Triveni Sahai Gupta,
Advocate, who was engaged from the side
of the petitioners, and as such it creates
doubt regarding signing of compromise by
Rambilas. In fact, Rambilas never signed
the compromise and for this reason, on
coming to know about the final order dated
18.06.1885, the application for recall was
filed by Rambilas.
(viii)
The
compromise
dated
06.03.1989 appears to be a forged
document for the reason(s) that in the first
compromise before the A.C.O., it was
prayed that in place of Makka, the name of
Rambilas
S/o
Makka,
Girdhari
S/o
Niranjan, Mohanlal S/o Niranjan and
Jagannath S/o Bhawani be mentioned in the
revenue record of Khata No.371 and in the
subsequent compromise dated 21.07.1978
filed before the C.O./respondent no.3, it
was prayed that 1/3 share of the land in
issue be provided to Jagannath S/o
Bhawani, 1/6 share be provided to Girdhari
S/o Niranjan and the same share be
provided to Mohanlal S/o Niranjan and 1/3
share to be provided to Rambilas S/o
Makka and in the last compromise dated
06.03.1989, it was prayed that 1/3 share be
provided to Jagannath S/o Bhawani and 2/3
share be provided to Rambilas S/o Makka
in the land indicated in Khata No.371.
(ix) All the compromise, in fact,
were unlawful because in none of the
compromise, it was pleaded that land in
issue is an ancestral property in which
pleading is required for getting a share in
holdings
and
in
this
regard,
the
C.O/respondent No.3 while rejecting the
compromise dated 21.08.1978 vide order
dated 17.11.1978 specifically observed that
it has not been established that land in issue
is an ancestral land and as such, if
compromise is accepted, then it would
amount to transfer of property, which is not
permissible and while passing order dated
18.06.1985, the S.O.C./respondent No.2
completely ignored this aspect of the case.
(x) If the order is interfered on the
ground that delay was not properly
explained, then that eventuality illegality
and fraud would perpetuate.
(xi) The impugned order dated
19.01.2016 is not liable to be intreferred on
the ground that proper explanation was not
given in regard to condoning the delay in
filing the revision as by the same the
D.D.C./respondent
No.1
has
done
substatial justice between the parties and if
this order is set aside or quashed the illegal
order dated 18.06.1985 would revive.
(xii) A wrong order on fact and law,
if provides substantial justice between the
parties, is not liable to be interfered in
exercise of power under Article 226/ 227 of
the Constituion of India.
(xiii) It is settled principle of law
that discretion, if exercised to provide right
of hearing, then it should not be interfered
by the appellate court or the higher court
and as such, the impugned order dated
19.01.2016 is not liable to be interfered by
this Court in exercise of power under
Article 226/ 227 of the Constitution of
India.

6. Considered the aforesaid and
perused the record.

7. After taking note of aforesaid, this
Court finds that following question has
arisen and is to be answered.

"Whether
the
order
dated
19.01.2016
passed
by
the
D.D.C./respondent no.1 is liable to be
interefered
by
this
Court
despite
insufficient explanation given by the
respondents No.4 to 6 (legal heirs of
5 All. Jagat Pal & Ors. Vs. D.D.C. Lakhimpur Kheri & Ors.
2337
Rambilas) in challenging the order dated
18.05.1985, whereby rights in the land
indicated in Khata No.371 were provided to
Jagannath/(precessor-in-interest
of
petitioners) and order(s) dated 23.03.1990
and 05.02.03, whereby application(s) for
restoration
filed
by
Rambilas
and
respondents No.4 to 6, respectively, were
dismissed for want of prosecution."

8. Before proceeding further, this
Court finds it appropriate to indicate some
settled proposition of law on the aforesaid.

9. It is a settled legal proposition
that the court should not set aside the order
which appears to be illegal, if its effect is to
revive another illegal order. It is for the
reason that in such an eventuality the
illegality would perpetuate and it would put
a premium to the undeserving party/person.
(Vide Gadde Venkateswara Rao v. Govt.
of A.P AIR 1966 SC 828; Maharaja
Chintamani Saran Nath Shahdeo v. State
of
Bihar
AIR
1999
SC
3609;
Mallikarjuna Mudhagal Nagappa v.
State of Karnataka AIR 2000 SC 2976;
Chandra Singh v. State of Rajasthan AIR
2003 SC 2889; State of Uttaranchal v.
Ajit Singh Bhola 2004 6 SCC 800; and
State of Orissa v. Mamata Mohanty 2011
3 SCC 436).

10. In a catena of judgments, both
this Court and Supreme Court have
emphasised
that
while
exercising
discretionary jurisdiction under Article
226, the High Court must ensure that justice
is done, equity be upheld and injustice is
eliminated.

11 . In Jodhey vs State, reported as
AIR 1952 All 788, this Court considered
the discretionary and equitable jurisdiction
of the High Court and the manner in which
the same ought to be exercised. Relevant
portion of the same reads:-

"There are no limits, fetters or
restrictions placed on this power of
superintendence in this Clause and the
purpose of this Article seems to be to make
the High Court the custodian of all justice
within
the
territorial
limits
of
its
jurisdiction and to arm it with a weapon
that could be wielded for the purpose of
seeing that justice is meted out fairly and
properly
by
the
bodies
mentioned
therein."(emphasis supplied)

12. In Gadde Venkateswara Rao
v. Govt. of A.P.; AIR 1966 SC 828, a three
judges Bench of the Supreme Court
affirmed the judgment of the Andhra
Pradesh High Court where it refused to
interfere into a matter on merit even when
the appellant alleged violation of principles
of natural justice. The Supreme Court
observed that if the impugned order passed
by the Government would have been set
aside by the High Court, it would have
restored an illegal order. Paragraph 19 of
the judgment reads:-

"19. The result of the discussion
may be stated thus: The Primary Health
Centre was not permanently located at
Dharmajigudem. The representatives of the
said village did not comply with the
necessary conditions for such location. The
Panchayat Samithi finally cancelled its
earlier resolutions which they were entitled
to do and passed a resolution for locating
the Primary Health Centre permanently at
Lingopalem. Both the orders of the
Government, namely, the order dated
March 7, 1962, and that dated April 18,
1963, were not legally passed: the former,
because it was made without giving notice
to the Panchayat Samithi, and the latter,
2338 INDIAN LAW REPORTS ALLAHABAD SERIES
because the Government had no power
under Section 72 of the Act to review an
order made under Section 62 of the Act and
also because it did not give notice to the
representatives of Dharmajigudem village.
In those circumstances, was it a case for the
High Court to interfere in its discretion and
quash the order of the Government dated
April 18, 1963? If the High Court had
quashed the said order, it would have
restored an illegal order it would have
given the Health Centre to a village
contrary to the valid resolutions passed by
the Panchayat Samithi. The High Court,
therefore, in our view, rightly refused to
exercise its extraordinary discretionary
power in the circumstances of the case."
(emphasis supplied)

13. In Mohammad Swalleh v.
Third Additonal District Judge, Meerut;
(1988) 1 SCC 40 the Supreme Court
dismissed an appeal against an order passed
by the High Court wherein the High Court
refused to interfere with the order of the
District Court which had no jurisdiction to
entertain an appeal from the Prescribed
Authority under the scheme of the Act on
the ground that setting aside District Court's
order would mean restoring the erroneous
order
of
the
Prescribed
Authority.
Paragraph 7 of the above referred judgment
of the Supreme Court reads:-

"7. It was contended before the
High Court that no appeal lay from the
decision of the prescribed authority to the
District Judge. The High Court accepted
this contention. The High Court finally held
that though the appeal laid (sic no appeal
lay) before the District Judge, the order of
the prescribed authority was invalid and
was rightly set aside by the District Judge.
On that ground the High Court declined to
interfere with the order of the learned
District Judge. It is true that there has been
some technical breach because if there is no
appeal maintainable before the learned
District Judge, in the appeal before the
learned District Judge, the same could not
be set aside. But the High Court was
exercising its jurisdiction under Article 226
of the Constitution. The High Court had
come to the conclusion that the order of the
prescribed authority was invalid and
improper. The High Court itself could have
set it aside. Therefore in the facts and
circumstances of the case justice has been
done though as mentioned hereinbefore,
technically the appellant had a point that
the order of the District Judge was illegal
and improper. If we reiterate the order of
the High Court as it is setting aside the
order of the prescribed authority in
exercise of the jurisdiction under Article
226 of the Constitution then no exception
can be taken. As mentioned hereinbefore,
justice has been done and as the improper
order of the prescribed authority has been
set aside, no objection can be taken."
(emphasis supplied)

14. In Shangrila Food Products
Ltd. v. LIC, (1996) 5 SCC 54 the Supreme
Court reiterated that while exercising
jurisdiction under Article 226 and 227 of
the Constitution, a duty is casted upon the
High Courts to see to it that equity is
upheld. High Court must ensure that any
undue advantage gained by a party prior to
invoking discretionary jurisdiction of the
High Court ought to be taken into account
before granting it any relief. Relevant
paragraph 11 of the same reads:-

"11. It is well settled that the High
Court in exercise of its jurisdiction under
Article 226 of the Constitution can take
cognisance of the entire facts and
circumstances of the case and pass
5 All. Jagat Pal & Ors. Vs. D.D.C. Lakhimpur Kheri & Ors.
2339
appropriate orders to give the parties
complete and substantial justice. This
jurisdiction of the High Court, being
extraordinary, is normally exercisable
keeping in mind the principles of equity.
One of the ends of the equity is to promote
honesty and fair play. If there be any
unfair advantage gained by a party
priorly, before invoking the jurisdiction of
the High Court, the Court can take into
account the unfair advantage gained and
can require the party to shed the unfair
gain before granting relief. What precisely
has been done by the learned Single Judge,
is clear from the above emphasised words
which may be reread with advantage. The
question of claim to damages and their
ascertainment would only arise in the event
of
the
Life
Insurance
Corporation,
respondent, succeeding to prove that the
appellant Company was an unlawful subtenant and therefore in unauthorised
occupation of public premises. If the
findings were to go in favour of the
appellant Company and it is proved to be a
lawful sub- tenant and hence not an
unauthorised occupant, the direction to
adjudge the claim for damages would be
rendered sterile and otiose. It is only in the
event of the appellant Company being held
to be an unlawful sub- tenant and hence an
unauthorised occupant that the claim for
damages would be determinable. We see
therefore no fault in the High Court
adopting such course in order to balance
the equities between the contestants
especially when it otherwise had power of
superintendence under Article 227 of the
Constitution in addition. We cannot be
oblivious to the fact that when the
occupation of the premises in question was
a factor in continuation of the liability to
pay for the use and occupation thereof, be
it in the form of rent or damages, was also
a continuing factor. The cause of justice, as
viewed by the High Court, did clearly
warrant that both these questions be viewed
interdependently. For those who seek equity
must bow to equity." (imphasis supplied)

15. In Roshan Deen vs. Preeti
Lal; (2002) 1 SCC 100, the Supreme Court
while setting aside an order passed by the
High Court observed that the High Courts
while exercising power of superintendence
under Article 226 and 227 should ensure
that such exercise must ensure that justice
is done and at the same time injustice is
eliminated. Paragraph 12 of the same
reads:-

"12. We are greatly disturbed by the
insensitivity reflected in the impugned
judgment rendered by the learned Single
Judge in a case where judicial mind would
be tempted to utilize all possible legal
measures to impart justice to a man
mutilated so outrageously by his cruel
destiny. The High Court non-suited him in
exercise of a supervisory and extraordinary
jurisdiction envisaged under Article 227 of
the Constitution. Time and again this Court
has reminded that the power conferred on
the High Court under Articles 226 and 227
of the Constitution is to advance justice and
not to thwart it (vide State of U.P. v. District
Judge, Unnao [(1984) 2 SCC 673: AIR
1984 SC 1401]). The very purpose of such
constitutional powers being conferred on
the High Courts is that no man should be
subjected to injustice by violating the law.
The lookout of the High Court is, therefore,
not merely to pick out any error of law
through an academic angle but to see
whether injustice has resulted on account of
any erroneous interpretation of law. If
justice became the by-product of an
erroneous view of law the High Court is not
expected to erase such justice in the name
of correcting the error of law,"
2340 INDIAN LAW REPORTS ALLAHABAD SERIES
16.