# Kulpavitra Tyagi v. Board of Revenue, Meerut & Ors

- **Citation:** (2024) 5 ILRA 1513
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-13
- **Case number:** Writ-B No. 54273 of 2014
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kulpavitra-tyagi-v-board-of-revenue-meerut-ors-51966
- **Pages:** 9

## Headnote

Law
Uttar
Pradesh
Zamindari
Abolition and Land Reforms Act, 1950. -
1514 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 18(1)(a), 176, 229B & 331 - Uttar
Pradesh Consolidation of Holdings Act,
1953 - Section 49 - Consolidation of
Holdings - - Petitioner- Share could not be
determined by consolidation authorities-
suit under Section 229 B filed- dismissed-
barred
by
Section
49
of
the
UP
Consolidation of Holdings Act, 1953-
Appeal before Commissioner- dismissed-
Second Appeal before Board of Revenue-
Dismissed- All orders challenged- Suit of
the petitioner could not be dismissed on
the ground of Section 49 of UPCH Act- No
limitation for filing of suit under Section
229B- Relevant issues pertaining to the
plot in question ought to be decided-
Impugned
orders
quashed-
Petition
allowed. (Paras 13, 14, 15, 16 and 17)

HELD:
The suit filed by the co-sharer cannot be
dismissed as barred by Section 49 of U.P.C.H. Act.
(Para 14)

The suit of the petitioner under Section 229B of
U.P.Z.A. & L.R. Act cannot be dismissed on the
ground of Section 49 of U.P.C.H. Act without
deciding other relevant issues in respect to the
plot in question considering the revenue entries
of the plot in dispute as well as other evidence in
respect to the plot in question. (Para 16)

So far as scope of the suit under Section 229B of
U.P.Z.A. & L.R. Act is concern this Court in the
case reported in 2005 (99) RD 529 Pan Kumari
Vs Board of Revenue, U.P. Allahabad has held
that the suit under Section 229B of U.P.Z.A. &
L.R. Act are suit of special character and no
limitation is provided for filing suit under Section
229B of U.P.Z.A. & L.R. Act. (Para 17)

Petition allowed. (E-14)

List of Cases cited:

## Text

5 All. Kulpavitra Tyagi Vs. Board of Revenue, Meerut & Ors.
1513
from the controlling authority for the
delayed payment on this ground."
Clearly, any delay in payment of
gratuity after thirty days carries interest
payable at the rate that is payable on longterm deposits that the Government may, by
notification, specify. Taking note of the
prevalent rates of interest provided on longterm deposits, the delay in payment of the
sum of gratuity to the petitioner, which is
beyond thirty days, from his retirement,
ought to carry simple interest at the rate of
6% per annum. In the opinion of this Court,
the impugned order by the reasoning
indicated, cannot be sustained."

13. The decision of mine in Ram
Khelawan Shukla (supra) was affirmed by
the Division Bench in M.D. Pradeshik
Cooperative Dairy Federation Ltd. and
Another v. Ram Khelawan Shukla, Special
Appeal Defective No.541 of 2021, decided
on 23.12.2021, to which the attention of the
Court was drawn by the learned Counsel for
the
petitioner
towards
the
close
of
arguments in this case.

14. There are certain other dues,
which the petitioner presses his claim about
and these are on account of medical leave,
special pay under family planning and then
that elusive description: other dues in
consonance with the 6th Pay Commission.
This Court, upon hearing the learned
Counsel and perusing the record, does not
find that any foundation has been laid for the
said entitlement by the petitioner in
accordance law and we cannot accede to that
part of the petitioner's prayer.

15. In the result, this petition
succeeds and is allowed in part. A writ in the
nature of mandamus is issued, ordering
respondent Nos.2, 3 and 4 to ensure amongst
themselves payment of leave encashment
dues to the petitioner and interest on the
delayed payment of gratuity @ 6% simple
annual calculated in the manner that interest
would run from a month after the date of the
petitioner's resignation till payment of the
relative part of the due gratuity. The leave
encashment dues shall also carry simple
interest @ 6% per annum, reckoned from a
month after the petitioner's resignation till
the said dues are paid. The entire sum of
money on account of interest on the belated
payment of gratuity, dues on account of
leave encashment and interest thereon, shall
be paid within a period of six weeks from
the date of receipt of a copy of this judgment
by the respondents.

16. Let a copy of this judgment be
forwarded to the Managing Director, PCDF,
the Chairman, PCDF and the General
Manager, Gangol Sahkari Dugdh Utpadak
Sangh Limited, Partapur, Meerut by the
Registrar (Compliance).
----------
(2024) 5 ILRA 1513
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 54273 of 2014

Kulpavitra Tyagi ...Petitioner
Versus
Board of Revenue, Meerut & Ors.
 ...Respondents

Counsel for the Petitioner:
P.R. Maurya, Amitabh Agarwal, Shashank Maurya

Counsel for the Respondent:
C.S.C., Mahesh Narain Singh, Sunil Kumar Singh

Civil
Law
Uttar
Pradesh
Zamindari
Abolition and Land Reforms Act, 1950. -
1514 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 18(1)(a), 176, 229B & 331 - Uttar
Pradesh Consolidation of Holdings Act,
1953 - Section 49 - Consolidation of
Holdings - - Petitioner- Share could not be
determined by consolidation authorities-
suit under Section 229 B filed- dismissed-
barred
by
Section
49
of
the
UP
Consolidation of Holdings Act, 1953-
Appeal before Commissioner- dismissed-
Second Appeal before Board of Revenue-
Dismissed- All orders challenged- Suit of
the petitioner could not be dismissed on
the ground of Section 49 of UPCH Act- No
limitation for filing of suit under Section
229B- Relevant issues pertaining to the
plot in question ought to be decided-
Impugned
orders
quashed-
Petition
allowed. (Paras 13, 14, 15, 16 and 17)

HELD:
The suit filed by the co-sharer cannot be
dismissed as barred by Section 49 of U.P.C.H. Act.
(Para 14)

The suit of the petitioner under Section 229B of
U.P.Z.A. & L.R. Act cannot be dismissed on the
ground of Section 49 of U.P.C.H. Act without
deciding other relevant issues in respect to the
plot in question considering the revenue entries
of the plot in dispute as well as other evidence in
respect to the plot in question. (Para 16)

So far as scope of the suit under Section 229B of
U.P.Z.A. & L.R. Act is concern this Court in the
case reported in 2005 (99) RD 529 Pan Kumari
Vs Board of Revenue, U.P. Allahabad has held
that the suit under Section 229B of U.P.Z.A. &
L.R. Act are suit of special character and no
limitation is provided for filing suit under Section
229B of U.P.Z.A. & L.R. Act. (Para 17)

Petition allowed. (E-14)

List of Cases cited:

1. Writ- B No.52717 of 2013 (Ram Briksha & anr.
Vs Deputy Director of Consolidation & ors.)
reported in 2017 (6) ADJ 356

2. Writ- B No.356 of 2013 (Deepak Kumar &
ors.Vs Board of Revenue & ors.) decided on
21.10.2022 reported in (2023) 158 RD 429

3. Mata Shiromani Vs St. of U.P. & ors. 2022 (10)
ADJ 158

4. Prashant Singh & ors.Vs Meena & ors. (Civil
Appeal No.8743-8744/2014) vide judgment 13
dated 25.4.2024 (Supreme Court)

5. Karbalai Begum Vs Mohd. Sayeed, (1980) 4
SCC 396

6. Amar Nath Vs Kewla Devi, (2014) 11 SCC 273

7. Attar Singh Vs St. of U.P., 1959 Supp (1) SCR
928

8. Pan Kumari Vs Board of Revenue, U.P.
Allahabad 2005 (99) RD 529

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

1. Heard Mr. Amitabh Agarwal,
learned counsel for the petitioner, Mr. W.H.
Khan, learned Senior Counsel assisted by
Mr. Gulrez Khan, learned counsel for the
contesting respondent nos.8 to 12, learned
Standing Counsel for the State-respondents
and Mr. Sunil Kumar Singh, learned counsel
for the respondent- Gaon Sabha.

2. Brief facts of the case are that in Khewat
of 1336 fasli, name of Mahal Sullarh Singh
Bandobast Vah Sahab, Village- Kharkhauda
was recorded in the name of father of
Rohtash Singh (father of petitioner as well
as respondent nos.8 to 11). In Khewat of
1336 fasli, plot no.1119, 1385 & 1386, total
three plots area 4 bigha, 18 biswa were
recorded as Sir in the name of Rohtash
Singh, Babu Ram and Raghubir Singh. Plot
no.183G along with 23 other plots total area
14 bigha 14 biswa & plot no.1083 area 15
biswa was recorded as Khudkasht in the
1333 fasli in the name of Chhatar Singh,
grandfather of petitioner & respondent nos.8
to 12. Plot no.1119 along with other plots
situated in Village-Kharkhauda, Pargana
Sarawa, Tahsil- Meerut, District- Meerut
5 All. Kulpavitra Tyagi Vs. Board of Revenue, Meerut & Ors.
1515
was recorded in the name of Babu Ram,
Raghubir Singh and Rohtash Singh son of
Chhatar Singh having 1/3 share each in the
khatauni of 1359 fasli. The aforementioned
plots, which have been recorded in the
Khatauni of 1359 fasli as Sir and Khudkasht
has been recorded in the C.H. Form-11 as
bhumidhari plot. During consolidation
operation 1/3 share has been recorded in the
C.H. Form 23 in Khata No.233 and other
plots which have been recorded as having
1/3 share are plot nos.43, 50, 829, 830/1,
1083, 1084 total area 6 biswa 4 biswansi. In
C.H. Form 45 new plot has been allotted to
chak no.610, plot no.1518 area 5 bigha 2
biswa 11 biswansi, plot no.1529 area 7 bigha
15 biswa 6 biswansi total two plots total area
12 bigha 15 biswa 19 biswansi was recorded
in the share of Rohtash Singh, father of the
petitioner & respondent nos.8 to 11. In
Khewat 1336 fasli, Village- Sadullapur @
Chandpur plot in dispute was recorded in the
name of Chhatar Singh, grandfather of
petitioner & respondent nos.8 to 12. In
khatauni of 1336 fasli, plot no.589 area 17
biswa situated in Village- Sadullapur @
Chandpur, Tahsil and Pargana Sarawa,
District- Meerut. Plot no.606 area 7 biswa
plot no.609 area 12 biswa, plot no.625 area
1 bigha 1 biswa, plot no.626 area 8 biswa,
plot no.636 area 19 biswa, plot no.641 area
14 biswa, plot no.642 area 2 bigha 12 biswa
were recorded as Sir plots and Plot no.42
area 1 bigha 14 biswa, plot no.323 area 1
bigha 13 biswa, plot no.374 area 7 biswa,
plot no.318 area 5 biswa, plot no.381 area 6
biswa, plot no.566 area 14 biswa total 6
plots, total area 4 bigha 13 biswa were
recorded as Khudkast in the name of
Chhatar Singh (grandfather of the petitioner
and respondent nos.8 to 12). In Khatauni of
1359 fasli Mahal Sullarh Singh of Village-
Sadullapur @ Chandpura, Pargana Saranwa,
Tahsil- Hapur, District- Meerut (now new
Tahsil-Meerut) was recorded in the name of
Babu Ram, Raghubir Singh and Rohtash
Singh son of Chhatar Singh as Sir &
Khudkast. In the basic year khatauni (C.H.
Form 11), the plots have been recorded in
the name of Babu Ram, Raghubir Singh and
Rohtash Singh son of Chhatar Singh having
1/3 share each. During consolidation
proceeding C.H. Form 23 was issued in
which 1/3 share has been given in the name
of Rohtash Singh son of Chhatar Singh
(petitioner's father). In C.H. Form-41 issued
during
consolidation
operation
(new
no.318) having 1/3 share was issued in the
name of Rohtash Singh (petitioner's father).
In C.H. Form 45, plot no.318 area 8 bigha 2
biswa 1 biswansi was recorded in the name
of Rohtash Singh (petitioner's father).
Rohtash Singh died on 16.3.2001 leaving
behind five sons, namely, Kulpavitra, Hem
Dutt, Daleshwar, Dhirendra and Vipin and
one daughter in law, Smt. Rajesh Tyagi wife
of Vishwanath (son of Rohtash Singh).
During consolidation proceeding petitioner
was posted in force, as such, he could not
participate in the consolidation proceeding
for declaration of his right and title in
respect to the plot in dispute, accordingly,
share of the petitioner could not be
determined by the consolidation authorities.
Petitioner's father after retirement from
service came to his village home and after
enquiry it has been found that his name has
not been recorded in the revenue record in
respect to the plot in question, accordingly,
petitioner filed a suit on 22.4.1996 under
Section 229B / 176 of U.P. Zamindari
Abolition & Land Reforms Act (hereinafter
referred to as "U.P.Z.A. & L.R. Act), which
was registered as suit no.165/96. Trial
Court/ Additional City Magistrate/ Assistant
Collector heard the aforementioned suit and
vide order dated 17.9.1998 dismissed the
aforementioned suit as barred by Section 49
of U.P.C.H. Act. Against the judgment and
order dated 17.9.1998 passed by the trial
1516 INDIAN LAW REPORTS ALLAHABAD SERIES
Court, petitioner filed an appeal, under
Section 331 of U.P.Z.A. & L.R. Act before
the Commissioner, which was registered as
appeal no.9/98 and the same was heard by
the Additional
Commissioner,
Meerut
Division, Meerut. The aforementioned
appeal was dismissed vide judgment and
order dated 11.4.2000. Petitioner further
challenged the impugned judgments of trial
Court dated 17.9.1998 as well as appellate
Court dated 11.4.2000 before the Board of
Revenue, which was registered as Second
Appeal
No.80/7M
1999-2000,
under
Section 331 (4) of U.P.Z.A. & L.R. Act. The
Board of Revenue, Circuit Court, Meerut
vide judgment dated 7.8.2014 dismissed the
aforementioned second appeal, hence this
writ petition on behalf of the petitioner for
the following reliefs:

"i. A writ, order or direction in the
nature of certiorari to quash the order dated
17.9.1998 passed by the Additional City
Magistrate
(Civil
Lines)/
Assistant
Collector, Meerut in suit no.165/1996
(Kulpavitra vs. State of U.P. and Others)
(Annexure No.16 to this writ petition), order
dated 11.4.2000 passed by the Additional
Commissioner, Meerut Division, Meerut in
Appeal No.9/98 (Kulpavitra vs. State of U.P.
and Others) (Annexure No.17 to this writ
petition) and judgment and order 7.8.2014
passed by Hon'ble Board of Revenue, Uttar
Pradesh Circuit Court Meerut in Second
Appeal No.80 Z.M. 1999-2000 (Kulpavitra
vs. State of U.P. and Others) (Annexure
No.19 to this writ petition).

ii. A writ, order or direction in the
nature
of
mandamus
restrain
the
respondents that they may not transfer and
change the nature of the land in dispute."

3. This Court vide order dated
10.10.2014 entertained the matter and
granted interim order restraining the
respondents from selling the property in
dispute or creating any third party interest
over it.

4. In compliance of the order dated
10.10.2014 parties have exchanged their
pleadings.

5. Learned counsel for the petitioner
submitted that the petitioner is real son of
Rohtash Singh who was born on 25.7.1945
i.e. before date of vesting, as such, he has got
birth right in the ancestral property as
provided under Section 18 (1) (a) of
U.P.Z.A. & L.R. Act but the impugned
orders have been passed in illegal manner
dismissing the petitioner's suit under Section
229B/176 of U.P.Z.A. & L.R. Act only on
the ground of Section 49 of U.P.
Consolidation of Holdings Act, 1953
(hereinafter referred to as "U.P.C.H. Act").
He further submitted that the property in
question is ancestral property, as such, the
claim of the petitioner cannot be ignored in
any manner. He next submitted that the suit
under Section 229B of U.P.Z.A. & L.R. Act
is suit of special character, as such, the same
cannot be dismissed in arbitrary manner
rather the same is to be decided after
framing issues and giving opportunity to the
parties to lead evidence in accordance with
law. He also submitted that in view of the
entry of the plot in question (Sir and
Khudkasht) as well as in view of the birth of
the petitioner before the date of vesting the
claim of the petitioner cannot be negatived
in view of the reference answered by
Division Bench of this Court in Writ- B
No.52717 of 2013 (Ram Briksha and
Another
Vs.
Deputy
Director
of
Consolidation & three others) reported in
2017 (6) ADJ 356. He further placed
reliance upon the another judgment of this
Court rendered in Writ- B No.356 of 2013
(Deepak Kumar and Others Vs. Board of
5 All. Kulpavitra Tyagi Vs. Board of Revenue, Meerut & Ors.
1517
Revenue
and
Others)
decided
on
21.10.2022 reported in (2023) 158 RD 429.

6. On the other hand, Mr. W.H. Khan,
learned Senior Counsel assisted by Mr.
Gulrez Khan, learned counsel for the
contesting respondent nos.8 to 12 submitted
that no claim was raised by petitioner during
consolidation operation (1972 upto 1983),
as such, the suit under Section 229B /176 of
U.P.Z.A. & L.R. Act filed in the year 1996
has been rightly dismissed by the trial Court
in view of the provisions contained under
Section 49 of U.P.C.H. Act. He further
submitted that since no objection was filed
during consolidation operation by the
petitioner, as such, the claim of the
petitioner cannot be entertained by the
revenue Court, under Section 229B / 176 of
U.P.Z.A. & L.R. Act. He further submitted
that finding of fact has been rightly recorded
by all the three Courts while deciding the
suit, appeal as well as second appeal, as
such, no interference is required in the
matter. He next submitted that the death of
Chhatar Singh has been disputed by the
petitioner but no document has been filed by
the petitioner to demonstrate that Chhatar
Singh has died in the year 1943. He also
submitted that Chhatar Singh has executed
sale deed on 5.8.1958, as such, the case of
the petitioner that Chhatar Singh has expired
in the year 1943 is totally false and the case
of contesting respondents that Chhatar
Singh has expired in the year 1968 is correct.
He further submitted that in respect to
Khasra no.527, the sale deed was executed
in favour of Hem Dutt on 22.7.1982, which
demonstrates that the claim setup by the
petitioner in plaint under Section 229B of
U.P.Z.A. & L.R. Act is totally false. He
further submitted that the petitioner had
seperated himself from the family long back
and had no share or possession over any
portion of disputed property, as such, no
right will accrue to the petitioner. He further
submitted
placed
reliance
upon
the
judgment of this Court reported in 2022 (10)
ADJ 158 (Mata Shiromani vs. State of U.P.
& Others) on the point of Section 49 of
U.P.C.H. Act.

7. I have considered the argument
advanced by learned counsel for the parties
and perused the records.

8. There is no dispute about the fact
that the suit under Section 229B / 176 of
U.P.Z.A. & L.R. Act filed by the petitioner
has been dismissed by the trial Court as
barred by Section 49 of U.P.C.H. Act and the
judgment of trial Court has been maintained
in appeal as well as second appeal by the
Court of Commissioner and Board of
Revenue.

9.
In
order
to
appreciate
the
controversy involved in the matter, the
family pedigree, which is mentioned in
Paragraph no.1 of the plaint of suit under
Section 229B / 176 of U.P.Z.A. & L.R. Act
will be relevant for perusal, the same is as
under:

10. It is also relevant to mention that in the
aforementioned suit trial court has framed
1518 INDIAN LAW REPORTS ALLAHABAD SERIES
12 issues which will be relevant for perusal,
the same are as under:

"1. क्या मविय पत् मदनांक 11.02.63 एवं
1.8.82 को सन्दभट में वादी का वाद कालबामधत है?

2. क्या मविय पत् की वैधता को मनमणटत करने का
न्यायालय उपरोक्त को क्षेत्ामधकार नहीं है?

3. क्या वाद वादी आवश्यक पक्षकार न बनाये जाने
के दोर् से दोमर्त है?

4. क्या वादी का वाद आबादी की भूमम के सम्बन्ध
में कानून प्रगमतशील नहीं है जैसा मक प्रमतवाद पत् की धारा 49 में
कहा गया है?

5. क्या वादी का वाद धारा 220बी व 176 का जैड
ए एन्ड एल० आर० एक्ट के प्रामवधानों से बामधत है?

6. क्या वादी का वाद आवश्यक पक्षकार बनाये जाने
के दोर् से दूमर्त है?

7. लयर वरि कर वरि 106 पांचरयत ररज एलट कर
नोदटस न मदये जाने के कारण खमण्डत होने योग्य है?

8. क्या वादी का वाद धारा 80 सी०पी०सी० के
प्रामवधानों से दूमर्त है?

9. ब्यान वाद वादी धारा 49 चकबन्दी अमधमनयम से
बामधत होने के कारण प्रगमतशील नहीं है एवं मनरस्त करने योग्य है?

10. क्या वाद वादी स्टोपल एवं एक्वीसेनस के
मसद्धान्त से बामधत है?

11. क्या वादी आराजी मनजाई में सह खातेदार है?

12. वादी मकस अनुतोर् को पाने का अमधकारी है?"

11. The trial Court decided the Issue
No.9 relating to bar of Section 49 of U.P.C.H.
Act as preliminary issue and dismissed the
plaintiff's suit as barred by Section 49 of
U.P.C.H. Act without considering the other
issues framed in the suit.

12. The entries which are annexed as
Annexure Nos.1 to 13 of the instant petition
are relevant entry with effect from 1336 fasli
upto close of consolidation operation in the
village in the form of C.H. Form 45, which
are to be examined by trial Court in
accordance with law.

13. This matter was entertained on
10.10.2014 when the reference before the
Division Bench on the point of Section 49 of
U.P.C.H. Act was pending and now the
reference has been answered by the Division
Bench in Writ- B No.52717 of 2013 (Ram
Briksha and Another Vs. Deputy Director
of Consolidation & three others) vide
judgment dated 16.5.2017, as such, the
perusal of the ratio of law laid down by the
Division Bench will be relevant, which is as
under:

"The
reference
in
question
contains following questions:-

"(i) 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 cosharer was student and had gone abroad for
study and fully depends upon other cosharers) etc., to file an objection under
Section 9 of the Act for separation of his
share?

(ii) 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?

(iii) 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
5 All. Kulpavitra Tyagi Vs. Board of Revenue, Meerut & Ors.
1519
chak in his name, although, there had been
no ouster from joint property?"

Issue No.I

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 cosharer was student and had gone abroad for
study and fully depends upon other cosharers) 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/cosharer
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

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
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

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 along with
connected matters shall now be placed
before the appropriate Bench according to
roster for disposal in light of this
judgement."

14. Hon'ble Apex Court recently in the
case of Prashant Singh and others vs.
Meena & Others (Civil Appeal No.8743-
1520 INDIAN LAW REPORTS ALLAHABAD SERIES
8744/2014) vide judgment dated 25.4.2024
has considered the scope of Section 49 of
U.P.C.H. Act after considering the ratio of
law laid down by the Apex Court in the case
of Karbalai Begum vs. Mohd. Sayeed,
(1980) 4 SCC 396, Amar Nath Vs. Kewla
Devi, (2014) 11 SCC 273 & Attar Singh vs.
State of U.P., 1959 Supp (1) SCR 928 and
has held that the suit filed by the co-sharer
cannot be dismissed as barred by Section 49
of U.P.C.H. Act.

15. In the instant matter in view of the
Khewat entry of the plot in dispute w.e.f.
1336 fasli in the name of petitioner's father-
Rohtash Singh, the suit under Section 229B
of U.P.Z.A. & L.R. Act filed by the
petitioner for declaration of his right as well
as partition of his share in respect to the plot
in question cannot be dismissed on the
ground of Section 49 of U.P.C.H. Act. It is
also material that the Khewat entry of 1336
fasli fully demonstrates that the plots in
question were recorded as Sir-Khudcast plot
in the name of petitioner's father along with
other co-sharer. It is also material that the
petitioner was born before the date of
vesting.

16. Considering the revenue entry from
1336 fasli up to 1359 fasli as well the ratio of
law laid down by the Division Bench of this
Court in Ram Briksha (supra) as well as
recent law laid down by Hon'ble Apex Court
in Prashant Singh (supra), the suit of the
petitioner under Section 229B of U.P.Z.A. &
L.R. Act cannot be dismissed on the ground of
Section 49 of U.P.C.H. Act without deciding
other relevant issues in respect to the plot in
question considering the revenue entries of the
plot in dispute as well as other evidence in
respect to the plot in question.

17. So far as scope of the suit under
Section 229B of U.P.Z.A. & L.R. Act is
concern this Court in the case reported in
2005 (99) RD 529 Pan Kumari vs. Board of
Revenue, U.P. Allahabad has held that the
suit under Section 229B of U.P.Z.A. & L.R.
Act are suit of special character and no
limitation is provided for filing suit under
Section 229B of U.P.Z.A. & L.R. Act.

18. The case law cited by learned
counsel for the contesting respondents shall
not apply in the instant matter as in that case
the plot was recorded as navin-parti during
consolidation operation and civil suit filed
by plaintiff was held to be barred by Section
49 of U.P.C.H. Act but in the instant matter
plots were recorded as Sir / Khudcast and
later on as bhumidhari in the name of
predecessor of both parties.

19. Considering the entire facts and
circumstances of the case, the impugned
orders dated 17.9.1998 passed by the
Additional City Magistrate (Civil Lines)/
Assistant
Collector,
Meerut
in
suit
no.165/1996 (Kulpavitra vs. State of U.P.
and Others), order dated 11.4.2000 passed
by the Additional Commissioner, Meerut
Division,
Meerut
in Appeal
No.9/98
(Kulpavitra vs. State of U.P. and Others) and
order 7.8.2014 passed by Board of Revenue,
Uttar Pradesh Circuit Court Meerut in
Second Appeal No.80 Z.M. 1999-2000
(Kulpavitra vs. State of U.P. and Others) are
liable to be set aside and are hereby set aside.

20. The writ petition stands allowed
and matter is remitted back before the
Additional City Magistrate / Assistant
Collector 1st Class, Meerut / respondent
no.3 to register the suit on its original
number and decide the same after affording
proper opportunity of hearing to the parties
to lead evidence in support of their cases
according to issues framed in the suit in
accordance with law, expeditiously
5 All. Rajesh Kumar & Anr. Vs. U.O.I.
1521
preferably within a period of six months
from the date of production of certified copy
of this order before respondent no.3.

21. No order as to cost.
----------
(2024) 5 ILRA 1521
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.05.2024

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-C No. 6856 of 2009

Rajesh Kumar & Anr. ...Petitioners
Versus
U.O.I. ...Opp. Party

Counsel for the Petitioners:
Vikas Singh

Counsel for the Opp. Party:
C.S.C., A.S.G., Murli Manohar Srivastava, Raj
Kumar Singh

(A) Medical Law - Ministry of Health and
Family Welfare, Government of Health
Research, Government of India - right to
make Rules and Regulations for practice
for
Electropathy
including
Electro
Homeopathy vested with the Central
Government - practice in electropathy or
imparting education should be done within
the provisions and parameters of order
issued by Central Government - although
no institution can confer a diploma or
degree in Electro Homeopathy, petitioners
can practice it as an alternative therapy -
without statutory provisions, there is no
bar in issuing a certificate for the study.
(Para -10 , 15, 16)

Petitioners
obtained
certificate
from
Mattei
Association - to practice Electro Homeopathy
System of Medicines - quashing of UOI and State of
Uttar Pradesh's orders - direction for noninterference and relief - to allow them to practice
alternate medicine system in UP until rules are
framed by competent authorities. (Para - 1)

HELD:-
Petitioners
can
practice
Electro
Homeopathy in Uttar Pradesh, provided it is not
banned by any competent authority. Cannot use the
prefix "Doctor" before their name. Direction for noninterference by respondents/authorities and relief
for permitting the practice until rules are framed by
competent authorities is issued.(Para - 17)

Petition disposed of. (E-7)

List of Cases cited:

1. Electro Homeo M.A.O.I. Vs St. of U.P. & ors., Writ
Petition No. 3992 of 2004

2. Civil Appeal No. 4642 of 2018 arising out of SLP
(C) No.20134/2017 : Sutapa Singh Vs St. of U.P. &
ors.

(Delivered by Hon'ble Om Prakash Shukla,
J.)

(1) The petitioners claiming to have
obtained Certificate from the respondent no.5Count Mattei Association to practice Electro
Homeopathy System of Medicines, has
approached this Court by way of the present
writ, praying inter-alia for quashing the
order/circular dated 25.11.2003 (Annexure-1)
issued by the Union of India and Government
Order dated 01.06.2004 (Annexure-41) issued
by the State of Uttar Pradesh. A direction for
non-interference by the respondents and
consequential relief of permitting them to
practice Electro Homoeopathy system of
alternate Medicine in the State of Uttar Pradesh,
till the rules in that regard are framed by the
competent authority, has also been sought by
them. Reliance is placed upon a judgment of the
Delhi High Court (Annexure-14 and 15), which
according to them, stands affirmed by the
Supreme Court (Annexure-16 & 17).

(2) Heard Shri Vikas Singh, learned
Counsel representing the petitioners, Shri