# Mahendra Singh v. Board of Revenue U.P. & Ors

- **Citation:** (2024) 11 ILRA 178
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-08
- **Case number:** Writ- B No. 504 of 2023
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-singh-v-board-of-revenue-u-p-ors-50995
- **Pages:** 5

## Headnote

Civil Law - U.P. Revenue Code, 2006 -
Sections 38(1) &. 144 - Code of Civil
Procedure, 1908 - Order VII - Rule 11 -
Rule 13 - Rejection of Plaint under Order
VII Rule 11 - Concealment of Prior
Proceedings under Section 38(1) in Suit
under Section 144 of U.P. Revenue Code
- Effect - In a suit under Section 144 of
the U.P. Revenue Code, the plaintiff
claimed rights over land based on oral
baynama and adverse possession but
suppressed
the
outcome
of
earlier
proceedings
under
Section
38(1),
wherein his claim based on a sale deed
was
rejected.
Defendant
filed
an
application under Order VII Rule 11 CPC
for rejection of the plaint due to
concealment of material facts. Held:
Plaintiff was under a legal obligation to
disclose
the
earlier
proceedings.
However, under Order VII Rule 13 CPC,
the plaintiff has liberty to file a fresh
suit on the same cause of action. (Paras
12, 14)

Dismissed. (E-5)

List of Cases cited:

## Text

178 INDIAN LAW REPORTS ALLAHABAD SERIES

13. As regards ground (a) that the
Rojgar Sewak to be appointed should be of
the same village, the said ground is patently
misconceived considering the fact that the
respondent no.6 has not been appointed in
the Gram Panchayat rather she has been
posted on an adjustment. Thus, the said
ground is rejected.

14. As regards ground (b) that in case
any irregularly is committed by respondent
no.6, the petitioner Gram Panchayat would
be unable to take any action as it is not the
appointing authority, the said ground also
merits to be rejected out rightly inasmuch
as once the respondent no.6 has been
appointed by some other Gram Panchayat
and has been adjusted in the Gram
Panchayat of the petitioner, it would always
be open for the petitioner Gram Panchayat
to inform the Gram Panchayat by which the
respondent no.6 may have been appointed
to initiate proceedings against her or to act
against her.

15. So far as the ground (c) that there
are no rules or any circular for adjustment
of a Rojgar Sewak, learned counsel for the
petitioner has also been unable to indicate
that there is any bar that a Rojgar Sewak
who has been appointed cannot be adjusted
in any village. The said ground is also
rejected.

16. So far as ground (d) is concerned,
the said ground is also found to be patently
misconceived considering that the petitioner
himself admits that the respondent no.6 had
been appointed way back in the year 2008
and has been continuing since last 16 years.
The petitioner has not brought on record the
appointment order or even the extension
order of respondent no.6 to indicate that she
could not have continued beyond three years
or for that matter her last extension was made
prior to a period of three years. Thus, in the
absence of any document to indicate to the
contrary, the said ground is also rejected.

17. Thus, from a perusal of the
aforesaid discussion it is apparent that none
of the grounds as have been raised by the
petitioner are legally sustainable in the eyes
of law.

18. Once from perusal of the aforesaid
grounds as raised by the petitioner it does not
emerge that the petitioner has got any legal
right or entitlement arising out of law and no
legal injury has been sustained by him after
passing of the aforesaid orders impugned,
consequently the petitioner has no locus to
challenge the orders impugned.

19. As regards the judgment of this
Court in the case of Smt. Geeta Devi
(supra), suffice to state that the said
judgment has not dealt with the locus of the
Gram Panchayat to challenge the order of
adjustment of Gram Rojgar Sewak. Thus, the
said judgment would have no applicability in
the facts of the instant case.

20. Keeping in view the aforesaid
discussion the writ petition is dismissed.
----------
(2024) 11 ILRA 178
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ- B No. 504 of 2023

Mahendra Singh ...Petitioner
Versus
Board of Revenue U.P. & Ors.
 ...Respondents
11 All. Mahendra Singh Vs. Board of Revenue U.P. & Ors.
179
Counsel for the Petitioner:
Ashish Kumar Srivastava, V. K. Ojha

Counsel for the Respondents:
C.S.C.,Azad Rai, Dhiraj Singh, Ragvendra
Singh Rathour, Rahul Sahai, Siya Ram Sahu

Civil Law - U.P. Revenue Code, 2006 -
Sections 38(1) &. 144 - Code of Civil
Procedure, 1908 - Order VII - Rule 11 -
Rule 13 - Rejection of Plaint under Order
VII Rule 11 - Concealment of Prior
Proceedings under Section 38(1) in Suit
under Section 144 of U.P. Revenue Code
- Effect - In a suit under Section 144 of
the U.P. Revenue Code, the plaintiff
claimed rights over land based on oral
baynama and adverse possession but
suppressed
the
outcome
of
earlier
proceedings
under
Section
38(1),
wherein his claim based on a sale deed
was
rejected.
Defendant
filed
an
application under Order VII Rule 11 CPC
for rejection of the plaint due to
concealment of material facts. Held:
Plaintiff was under a legal obligation to
disclose
the
earlier
proceedings.
However, under Order VII Rule 13 CPC,
the plaintiff has liberty to file a fresh
suit on the same cause of action. (Paras
12, 14)

Dismissed. (E-5)

List of Cases cited:

1. Kum. Geetha, D/o Late Krishna & ors. Vs.
Nanjundaswamy & ors. (2023) INSC 964

2. Eldeco Housing & Industries Ltd. Vs. Ashok
Vidyarthi & ors. (2023) INSC 1043

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

1. Heard Mr. V.K. Ojha, Advocate,
holding brief of Sri Ashish Kumar
Srivastava,
learned
counsel
for
the
petitioner and Mr. Rahul Sahai, learned
counsel for respondent nos.4 and 5.

2. In the present case, father of the
contesting respondent nos.4 and 5 has filed
a suit under Section 38(1) of the Uttar
Pradesh Revenue Code, 2006 (in short 'the
Code') for correction of errors in the
records of rights i.e. Khatauni. The said suit
was contested by the present petitioner and
the same was allowed by a reasoned order
dated 28.5.2016 and entries made in the
name of present petitioner was expunged
and name of the contesting respondents
were directed to be entered.

3. It is not in much dispute that there
was no challenge to said order at the instant
of the petitioner. Accordingly, it has
attained finality and claim of the present
petitioner on basis of a sale-deed in regard
to the land in dispute was rejected so far as
correction of record was concerned.

4. The petitioner concealing details of
above referred proceedings as well as its
out come has subsequently filed a suit
under Section 144 of the Code on
3.11.2016 and claimed land in dispute on
basis of a possession on oral baynama as
well as on plea of adverse possession.

5. It appears that a purported
application under Order VII Rule 11
C.P.C.
was
filed
by
the
defendants/contesting
respondents
for
rejection of the plaint on a ground that
petitioner/plaintiff has not come up
before the Court with clean hands and
concealed a material fact i.e. outcome of
the earlier proceedings that his claim on
basis of alleged sale-deed was rejected in
a proceedings arising out of Section 38(1)
of the Code, which has attained finality
and has bearing on suit also.

6. The learned Trial Court by an order
dated 27.5.2017 rejected the suit as not
180 INDIAN LAW REPORTS ALLAHABAD SERIES
maintainable. The relevant part thereof is
mentioned hereinafter:

"संदसभटत वाद में पोषणीयता के
बबन्दु पर उभयपक्षों के ववद्वान अचधवक्ता
द्वारा प्रस्तुत तको को सुना गया तथा वादी
पक्ष को पोषणीयता पर सलखखत बहस भी
प्रस्तुत करने हेतु अवसर प्रदान ककया गया।
प्रनतवादीगण संख्या 1 व 2 के ववद्वान
अचधवक्ता की ओर से अपनी सलखखत बहस
प्रस्तुत की गयी है, िो संलग्न पत्रावली है,
ककन्तु पयाटप्त अवसर ददये िाने के बावि द
वादी के ववद्वान अचधवक्ता की अोोर से
कोई भी सलखखत बहस प्रस्तुत नहीं हुई है।

मैंने पत्रावली पर उपलब्ध समस्त
असभलेखों का सम्यक पररशीलन ककया तथा
सलखखत बहस का अध्ययन ककया। पत्रावली
पर
उपलब्ध
असभलेखीय
साक्ष्यों
के
पररशीलन से स्पष्ट होता है कक वादग्रस्त
भ खण्ड के बावत पक्षों के मध्य न्यायालय
तहसीलदार
करछना,
न्यायालय
अपर
आयुक्त
(द्ववतीय)
इलाहाबाद
मण्डल,
इलाहाबाद एवं न्यायालय उपजिलाचधकारी
करछना में वाद संजस्थत होकर ननणीत हो
िुका है, ककन्तु वादी द्वारा तथ्यों को
नछपाकर नये ससरे से प्रश्नगत घोषणात्मक
वाद योजित ककया गया है, िो ववचधसम्मत
न होने के कारण पोषणीय नहीं है एवं
ननरस्त ककये िाने योग्य है।"

7. The aforesaid order was challenged
by the petitioner by way of filing a revision
petition before the Board of Revenue.
However, the same was rejected by an
order dated 6.6.2022. The relevant part
thereof is mentioned hereinafter:

"मैनें
उभयपक्ष
के
ववद्वान
अचधवक्ताओं द्वारा प्रस्तुत तकों एवं
साक्ष्यों को ववस्तारप वटक सुना एवं पत्रावली
पर उपलब्य आलोच्य आदेशों एवं अधीनस्थ
न्यायालय के असभलेखों का भली भांनत
पररशीलन ककया।

उपरोक्त वखणटत तथ्यों से स्पष्ट
है कक प्रश्नगत प्रकरण तहसीलदार करछना
द्वारा पाररत आदेश ददनांक 08.07.2014 से
प्रारम्भ हुआ। जिसके ववरुद्ध ननगरानीकताट
ने अपर आयुक्त द्ववतीय इलाहाबाद मण्डल
इलाहाबाद के न्यायालय में ननगरानी प्रस्तुत
की जिसका ननस्तारण कर अपर आयुक्त ने
अपने आदेश ददनांक 30.11.2015 के द्वारा
आदेश ददनांक 08.07.2014 को ननरस्त कर
वाद परीक्षण न्यायालय को गुणदोष के
आधार
ननस्ताररत
ककये
िाने
हेतु
प्रत्यावनतटत कर ददया जिसके क्रम में
उपजिलाचधकारी ने वाद संजस्थत कर अंनतम
आदेश ददनांक 28.05.2016 पाररत ककया
जिसके द्वारा ननगरानीकताट को दावा
ननरस्त कर ददया गया। ननगरानीकताट को
उपजिलाचधकारी
करछना
द्वारा
पाररत
आदेश ददनांक 28.05.2016 के ववरुद्ध
आयुक्त /अपर आयुक्त अथवा रािस्व
पररषद न्यायालय में वाद योजित ककये
िाने की स्वतन्त्रता प्राप्त थी परन्तु
ननगरानीकताट
ने
उपरोक्त
तथ्यों
को
11 All. Mahendra Singh Vs. Board of Revenue U.P. & Ors.
181
नछपाकर उपजिलाचधकारी करछना के ही
न्यायालय में धारा 144 उ०प्र० रािस्व
संदहता
2006
के
अन्तगटत
ददनांक
05.11.2016 को एक नवीन वाद योजित
ककया।
जिसे
पोषणीय
न
पाते
हुए
उपजिलाचधकारी करछना ने अपने आदेश
ददनांक 27.05.2017 के द्वारा ननरस्त कर
कोई त्रुदट नहीं की है। अतः उपजिलाचधकारी
करछना
द्वारा
पाररत आदेश
ददनांक
27.05.2017 में ककसी प्रकार का हस्तक्षेप
ककया िाना न्यायोचित प्रतीत नहीं होता है।
अतएव प्रस्तुत ननगरानी बलहीन एवं
सारहीन होने के कारण ननरस्त ककये िाने
योग्य है।

अतः प्रस्तुत ननगरानी बलहीन एंव
सारहीन होने के कारण ननरस्त की िाती
है। ननगरानी के लम्बनकाल में पाररत
स्थगन आदेश ददनांक 06.07.2017 ननरस्त
ककया िाता है। अधीनस्थ न्यायालय के
असभलेख वापस भेिे िायें। वाद आवश्यक
कायटवाही पत्रावली दाखखल दफतर हो।"

8. Mr. V.K. Ojha appearing on behalf
of the petitioner has submitted that the
learned Trial Court as well as the
Revisional Court has not considered that
the issue of maintainability could be
considered
only
after
framing
of
preliminary
issue.
However,
without
framing of any issue the suit was rejected,
and as such the relevant provisions of
C.P.C. i.e. Order XIV Rule 1 (1 to 6) were
not complied with. Learned counsel also
submitted
that
since
nature
of
the
proceedings under Section 38(1) of the
Code does not create any right, therefore,
its disclosure was not mandatory.

9. Per contra, Mr. Rahul Sahai
appearing on behalf of the contesting
respondents
has
submitted
that
the
petitioner has not denied that details of
earlier
proceedings
concluded
under
Section 38(1) of the Revenue Code, 2006
were not disclosed in the plaint and since
its finding may have relevance, therefore,
both the Courts have rightly held that the
suit was not maintainable.

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

11. Before adverting to the rival
submissions,
few
paragraphs
of
the
judgments passed by the Supreme Court in
the case of Kum. Geetha, D/o Late
Krishna & Ors. Vs. Nanjundaswamy &
Ors. (2023) INSC 964, and Eldeco
Housing and Industries Limited Vs.
Ashok Vidyarthi and others (2023) INSC
1043
being
relevant
on
issue
of
consideration of an application filed under
Order VII Rule 11 C.P.C., are respectively
reproduced hereinafter:

Kum. Geetha (supra)

"23.10. At this stage, the pleas
taken by the defendant in the written
statement and application for rejection of
the plaint on the merits, would be
irrelevant, and cannot be adverted to, or
taken into consideration. Sopan Sukhdeo
Sable v. Charity Commr., (2004) 3 SCC
137)"

Eldeco Housing (supra)

"26. However, the fact remains that
all the aforesaid documents, referred to by the
respondent in support of his plea for rejection
of the plaint, cannot be considered at this
stage as these are not part of the record with
182 INDIAN LAW REPORTS ALLAHABAD SERIES
the Court filed along with the plaint. This is
the stand taken by the respondent-defendant in
the application filed under Order VII Rule 11
C.P.C. As noticed above, no amount of
evidence or merits of the controversy can be
examined at the stage of decision of the
application under Order VII Rule 11 C.P.C.
Hence, in our view, the impugned order of the
High Court passed in the Review Application
deserves
to
be
set
aside.
Ordered
accordingly."

12. It is well settled that the proceedings
arising out of Section 38(1) of the Revenue
Code are summary in nature and its finding
may not be final adjudication on the issue.
Still, since the suit was filed on basis of a oral
sale-deed and alleged possession thereon as
well as on plea of adverse possession,
therefore, any finding in regard to the saledeed must be part of the suit as well as the
petitioner ought to have came before any
Court with clean hands, therefore, he was
under legal obligation to disclose the earlier
proceedings, but admittedly he has not done
so, therefore, he has not come with clean
hands before the Court, which is a adverse
factor.

13. So far as other argument is
concerned, that to consider the application
under Order VII Rule 11 C.P.C., issues are
required to prove has no merit and for that a
reference is taken from the above referred
judgments that at the stage of consideration of
application under Order VII Rule 11 C.P.C.,
merit of the case is not required to be
considered, since it is an application for
rejection of the plaint.

14. In the aforesaid circumstances, the
Court is of considered opinion that there is no
illegality in the impugned orders dated
6.6.2022 and 27.5.2017. However, under
Order VII Rule 13 C.P.C., the petitioner has
still liberty to present a fresh plaint in respect
of the same cause of action. Therefore, while
rejecting the prayers of this writ petition, it is
observed that the petitioner can take benefit of
Order VII Rule 13 C.P.C., if so advised.
However, he has to disclose all the facts
including the earlier proceedings also.

15. In pursuance to the previous order
passed by this Court, concerned S.D.M.
and the S.H.O. were present in Court and
they have tendered unqualified apology that
they
have
acted
in
haste
without
considering that the present writ petition
was pending before this Court. However,
they assure that such acts will not be
repeated in future.

16. The District Magistrate, Prayagraj as
well as the Commissioner of Police, Prayagraj
are directed to communicate their officers that
if the manner of doing a particular act is
prescribed under a provision of law, the act
must be done in that manner or not at all.

17. Present writ petition is, accordingly,
disposed off. Legal consequence shall follow.

18. Registrar (Compliance) to take steps.
----------
(2024) 11 ILRA 182
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.11.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ- B No. 1633 of 2023
With
FAFO No. 793 of 2024

State of U.P. & Anr. ...Petitioners
Versus
Board of Revenue & Ors. ...Respondents