# Mst. Purshottami v. Board of Revenue & Ors

- **Citation:** (2025) 1 ILRA 483
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-23
- **Case number:** Writ- B No. 13084 of 1983
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mst-purshottami-v-board-of-revenue-ors-52880
- **Pages:** 9

## Headnote

Civil Law - U.P. Consolidation of Holdings
Act, 1953 - Section 49 - Bar of
jurisdiction - Declaratory suit under
Section 229-B of U.P.Z.A. & L.R. Act filed
by
persons
declared
Sirdar
in
consolidation proceedings - Board of
Revenue set aside concurrent findings of
Trial and Appellate Courts - Held, when
right of tenure-holder adjudicated under
Section 9A(2) during consolidation and
recorded in Misilband register, bar under
Section 49 does not apply - Board of
Revenue
erred
in
reversing
findings
without framing substantial question of
law - Order set aside. (Paras 13, 14, 17,
18, and 20)
HELD:
This Court in the case reported in 2016 (133)
RD 800, Adalat Yadav vs. D.M./ D.D.C. & Others
has held that if question relating to genuineness
of any record has to be decided then its entry in
misilband has to be examined..... (Para 13)

Since, the order passed during consolidation
operation could not be incorporated in the
revenue record, accordingly, suit under Section
229-B of U.P.Z.A. & L.R. Act was filed on behalf
of the petitioners to declare them as Sirdar of
the plot in question and trial Court has not
decreed the plaintiff's suit only on the basis of
order passed by the Consolidation Court rather
on the basis of oral and documentary evidence
adduced by the plaintiffs as well as defendants.
On behalf of the St. Lekhpal concern was
examined and on behalf of gaon sabha Pradhan
was examined. The entry in C.H. Form 2A, 41 &
45 were taken into consideration by trial Court
in holding that plaintiffs are Sirdar of the plot in
suit. The finding of fact has also been recorded
by trial Court that suit is not barred by Section
49 of U.P.C.H. Act as there was adjudication by
consolidation Court in favour of petitioners/
plaintiffs.
The
first
appellate
Court
has
maintained the judgement and decree of the
trial Court by dismissing the first appeal filed by
the St.. Board of Revenue while allowing the
second appeal filed by the St. has set aside the
judgement and decree of trial Court as well as
appellate Court without reversing the finding of
fact recorded by the trial Court in proper
manner. It is also material to mention that no
substantial
question
of
law
/
point
of
determination have been framed by the Board
of Revenue while passing the judgment allowing
the second appeal setting aside the judgement
and decreed passed by the trial Court as well as
first
appellate
Court
and
dismissing
the
plaintiff's suit. (Para 14)

On the point of Section 49 of U.P.C.H. Act,
Hon'ble Supreme Court in the case reported in
2024 (163) RD 691, Prashant Singh & Others
Vs. Meena & ors. has considered the scope of
Section
49
of
U.P.C.H.
Act.
In
the
aforementioned case, Hon'ble Supreme Court
has considered the judgement of Karbalai
Begum Vs. Mohd. Sayeed (1980) 4 SCC 396 as
well as judgment of Sita Ram vs. Chhota
Bondey & Others 1991 Supplement (1) 556.
(Para 17)

Considering the ratio of law laid down by
Hon'ble Supreme Court from the case of
Karbalai Begum (supra) up to Prashant Singh
(supra), it is very much clear that claim of cotenancy will not barred under Section 49 of
U.P.C.H. Act but other claim will be barred under
Section 49 of U.P.C.H. Act. (Para 18)
484 INDIAN LAW REPORTS ALLAHABAD SERIES
The order passed by the Board of Revenue
allowing the second appeal and dismissing the
plaintiff suit for declaration by passing cryptic
judgment cannot be sustained in the eye of law.
The manner in which impugned judgment has
been passed by the Board of Revenue, can be a
judgment of dismissal of second appeal,
affirming judgment of courts below but this
cannot be a judgment of reversal by which the
second appeal has been allowed and the suit
under Section 229 B of U.P.Z.A. & L.R. Act has
been dismissed in the exercise of second
appellate jurisdiction. (Para 20)

Petition allowed. (E-14)

List of Cases cited:

## Text

1 All. Mst. Purshottami Vs. Board of Revenue & Ors.
483
(2025) 1 ILRA 483
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2025

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ- B No. 13084 of 1983
With
Writ-B No. 13085 of 1983

Mst. Purshottami ...Petitioner
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioner:
Sidheshwari Prasad, Haridwar Singh, Ram
Chandra Yadav

Counsel for the Respondents:
S.C., B.K. Tripathi, Rameshwar Prasad
Shukla, S. Rai, Sudhanshu Pratap Singh,
V.K. Singh

Civil Law - U.P. Consolidation of Holdings
Act, 1953 - Section 49 - Bar of
jurisdiction - Declaratory suit under
Section 229-B of U.P.Z.A. & L.R. Act filed
by
persons
declared
Sirdar
in
consolidation proceedings - Board of
Revenue set aside concurrent findings of
Trial and Appellate Courts - Held, when
right of tenure-holder adjudicated under
Section 9A(2) during consolidation and
recorded in Misilband register, bar under
Section 49 does not apply - Board of
Revenue
erred
in
reversing
findings
without framing substantial question of
law - Order set aside. (Paras 13, 14, 17,
18, and 20)
HELD:
This Court in the case reported in 2016 (133)
RD 800, Adalat Yadav vs. D.M./ D.D.C. & Others
has held that if question relating to genuineness
of any record has to be decided then its entry in
misilband has to be examined..... (Para 13)

Since, the order passed during consolidation
operation could not be incorporated in the
revenue record, accordingly, suit under Section
229-B of U.P.Z.A. & L.R. Act was filed on behalf
of the petitioners to declare them as Sirdar of
the plot in question and trial Court has not
decreed the plaintiff's suit only on the basis of
order passed by the Consolidation Court rather
on the basis of oral and documentary evidence
adduced by the plaintiffs as well as defendants.
On behalf of the St. Lekhpal concern was
examined and on behalf of gaon sabha Pradhan
was examined. The entry in C.H. Form 2A, 41 &
45 were taken into consideration by trial Court
in holding that plaintiffs are Sirdar of the plot in
suit. The finding of fact has also been recorded
by trial Court that suit is not barred by Section
49 of U.P.C.H. Act as there was adjudication by
consolidation Court in favour of petitioners/
plaintiffs.
The
first
appellate
Court
has
maintained the judgement and decree of the
trial Court by dismissing the first appeal filed by
the St.. Board of Revenue while allowing the
second appeal filed by the St. has set aside the
judgement and decree of trial Court as well as
appellate Court without reversing the finding of
fact recorded by the trial Court in proper
manner. It is also material to mention that no
substantial
question
of
law
/
point
of
determination have been framed by the Board
of Revenue while passing the judgment allowing
the second appeal setting aside the judgement
and decreed passed by the trial Court as well as
first
appellate
Court
and
dismissing
the
plaintiff's suit. (Para 14)

On the point of Section 49 of U.P.C.H. Act,
Hon'ble Supreme Court in the case reported in
2024 (163) RD 691, Prashant Singh & Others
Vs. Meena & ors. has considered the scope of
Section
49
of
U.P.C.H.
Act.
In
the
aforementioned case, Hon'ble Supreme Court
has considered the judgement of Karbalai
Begum Vs. Mohd. Sayeed (1980) 4 SCC 396 as
well as judgment of Sita Ram vs. Chhota
Bondey & Others 1991 Supplement (1) 556.
(Para 17)

Considering the ratio of law laid down by
Hon'ble Supreme Court from the case of
Karbalai Begum (supra) up to Prashant Singh
(supra), it is very much clear that claim of cotenancy will not barred under Section 49 of
U.P.C.H. Act but other claim will be barred under
Section 49 of U.P.C.H. Act. (Para 18)
484 INDIAN LAW REPORTS ALLAHABAD SERIES
The order passed by the Board of Revenue
allowing the second appeal and dismissing the
plaintiff suit for declaration by passing cryptic
judgment cannot be sustained in the eye of law.
The manner in which impugned judgment has
been passed by the Board of Revenue, can be a
judgment of dismissal of second appeal,
affirming judgment of courts below but this
cannot be a judgment of reversal by which the
second appeal has been allowed and the suit
under Section 229 B of U.P.Z.A. & L.R. Act has
been dismissed in the exercise of second
appellate jurisdiction. (Para 20)

Petition allowed. (E-14)

List of Cases cited:

1. Adalat Yadav Vs D.M./D.D.C., 2016 (133) RD
800

2. Prashant Singh Vs Meena, 2024 (163) RD 691

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

4. Sharda Devi Vs Board of Revenue, 1985 RD
93

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

1. Rejoinder affidavit filed by learned
counsel for the petitioner in Writ-B
No.13084 of 1983 as well as Misilband
Register placed before the Court by learned
counsel for the petitioner are taken on
record.

2. Heard Mr. Ram Chandra Yadav,
learned counsel for the petitioners, Mr.
Abhishek
Kumar
Srivastava,
learned
Additional Chief Standing Counsel for the
State-respondents and Mr. Rameshwar
Prasad Shukla, learned counsel for the
respondent-Gaon Sabha.

3. Since common issues are involved
in both the petition hence both the writ
petition are heard together and are being
decided by a common order.

4. Brief facts of the cases are that the
suit under Section 229-B of U.P. Zamindari
Abolition & Land Reforms Act, 1950
(hereinafter referred to as "U.P.Z.A. & L.R.
Act") was filed by Purshottami as well as
Chauthi impleading the State and Gaon
Sabha as defendants. The suit filed by
Purshottami
was
registered
as
Suit
No.150/235/75 and the suit filed by
Chauthi
was
registered
as
Suit
No.151/1977 pleading that plaintiffs are
Sirdar of the plot in question and they are
in possession of the plot in question for last
30 years. They further pleaded that in the
proceeding under Section 9 of U.P.
Consolidation of Holdings Act, 1953
(hereinafter referred to as "U.P.C.H. Act")
an order dated 23.2.1967 was passed by the
Consolidation
Officer
declaring
the
Purshottami and Chauthi as Sirdar of the
plot in question but the entries were not
corrected accordingly, hence the suit.
Written statement was filed by the State as
well as Gaon Sabha denying the plaint
allegations. Seven issues were framed
before the trial Court and parties have
adduced oral and documentary evidence in
support of their case. Trial Court vide
judgement and decree dated 28.1.1978
decreed the aforementioned suit filed by
the petitioners (Purshottami and Chauthi).
Against the judgement and decree of trial
Court dated 28.1.1978, two appeals were
filed before the Commissioner by State of
U.P. only. The appeal filed by State was
registered as Appeal No.669-A-1978 and
668-A-1978.
Additional
Commissioner,
Gorakhpur Division, Gorakhpur clubbed as
well as heard the aforementioned appeal
together
and
vide
judgement
dated
26.10.1979 dismissed the appeal filed by
State of U.P. recording finding of fact that
1 All. Mst. Purshottami Vs. Board of Revenue & Ors.
485
the plea raised by the State is bared by
Section 49 of U.P.C.H. Act. Against the
judgment and decree of first appellate
Court / Additional Commissioner dated
26.10.1979, two second appeals were filed
before the Board of Revenue, U.P.,
Allahabad, which were registered as
Appeal Nos.36 & 37 of 1979-1980. The
aforementioned appeals were clubbed and
heard together by learned Member of
Board of Revenue and vide judgment dated
14.9.1983, the aforementioned second
appeals were allowed and the judgement
and decree passed by trial Court and first
appellate Court have been set aside as well
as the plaintiff suit were dismissed, hence
Writ Petition No.13084 of 1983 & 13085
of 1983 for the following reliefs:

Writ-B No.13084 of 1983

(A) to issue a writ, order or
direction in the nature of certiorari calling
for the record of the case for the purpose of
quashing
the
impugned
order
dated
September 14, 1983 (Annexure 3) and to
quash the same;

(B) to issue a writ, order or
direction in the nature of Mandamus
commanding the respondents not to give
effect to the impugned order during the
pendency of the writ petition;

Writ-B No.13085 of 1983

"(A) to issue a writ, order or
direction in the nature of certiorari calling
for the record of the case for the purpose of
quashing
the
impugned
order
dated
September 14, 1983 (Annexure 3) and to
quash the same;

(B) to issue a writ, order or
direction in the nature of mandamus
commanding the respondents not to give
effect to the impugned order during the
pendency of the writ petition;"

5. The aforementioned writ petitions
were admitted on 25.10.1983 and operation
of the order passed by the Board of
Revenue was stayed. In pursuance of the
aforementioned order dated 25.10.1983,
Gaon Sabha has filed counter affidavit but
no counter affidavit has been filed on
behalf of the State.

6. Learned counsel or the petitioners
submitted
that
during
consolidation
proceeding under Section 9A (2) of
U.P.C.H. Act, an order dated 23.2.1967
was passed for recording the name of
petitioners of both the writ petitions as
Sirdar over the plot in question but the
order was not given effect in the revenue
records and village has been de-notified
under Section 52 of U.P.C.H. Act. He
further submitted that the suit under
Section 229-B of U.P.Z.A. & L.R. Act was
filed on behalf of the petitioners declaring
them as Sirdar of the plot in question
considering the orders passed during
consolidation proceeding. He further placed
the certified copy of the Misilband Register
of 1967-1968 in order to demonstrate that
the order dated 23.2.1967 was passed by
the Consolidation Officer in the proceeding
under Section 9-A (2) of U.P.C.H. Act. He
further submitted that the trial Court has
framed the issues in the suit under Section
229-B of U.P.Z.A. & L.R. Act and afforded
full opportunity to State as well as Gaon
Sabha to lead evidence in accordance with
law. He next submitted that both parties
have lead evidence and trial Court has
decided the issues relating to Section 49 of
U.P.C.H. Act as well as other issues in
proper manner declaring the petitionersplaintiff as Sirdar of the plot in question.
He further submitted that the first appeal
filed by State of U.P. only was dismissed
considering the case of both parties in
accordance with law. He further submitted
486 INDIAN LAW REPORTS ALLAHABAD SERIES
that the second appeal filed by the State of
U.P. has been allowed in arbitrary manner
without considering the finding of fact
recorded by the trial Court as well as first
appellate Court in proper manner. He
further submitted that the second appeal
has been allowed without framing any
subsequent question of law / point of
determination and by the impugned order
the decree of the trial Court as well as of
first appellate Court have been set aside
and the suit has been dismissed in arbitrary
manner.
He
further
submitted
that
judgment and decree passed by the Board
of Revenue is liable to be set aside and the
judgment of the trial Court should be
maintained.

7. Mr. Abhishek Kumar Srivastava,
learned Additional Chief Standing Counsel
for
the
State-respondents
and
Mr.
Rameshwar Prasad Shukla, learned counsel
for the respondent-Gaon Sabha submitted
that the copy of the order of Consolidation
Officer has not been filed along with writ
petition, as such, argument advanced by
learned counsel for the petitioners about the
order dated 23.2.1967 passed by the
Consolidation
Officer
cannot
be
entertained. They further submitted that the
name of the petitioners were not recorded
in C.H. Form 23 and 45, as such,
petitioners
should
initiate
proper
proceedings during consolidation operation
by filing objection / appeal / revision. They
further submitted that the second appeal
filed by the State before the Board of
Revenue has rightly been allowed setting
aside the judgement / decree passed by the
trial Court and first appellate Court. They
further submitted that in view of the finding
recorded by the Board of Revenue no
interference is required against the order
passed by the Board of Revenue in second
appeal. They further submitted that the suit
under Section 229-B of U.P.Z.A. & L.R.
Act filed by the petitioners is barred in
view of the provisions contained under
Section 49 of U.P.C.H. Act. He further
submitted that the land comes under the
category 132 of U.P.Z.A. & L.R. Act, as
such, no right will accrue in favour of the
petitioner / defendant and the Board of
Revenue has rightly allowed the second
appeal filed by the State.

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

9. There is no dispute about the fact
that two suit under Section 229-B of
U.P.Z.A. & L.R. Act filed by the
petitioners were decreed by the trial Court
holding that the petitioners are Sirdar of the
plot in question. There is also no dispute
about the fact that the first appeal filed by
State of U.P. was dismissed by the
Additional
Commissioner
but
second
appeal filed by the State has been allowed
setting aside the judgement/decree of trial
Court as well as first appellate Court and
the plaintiff's suit have been dismissed.

10.
In
order
to
appreciate
the
controversy involved in the matter, perusal
of the provisions contained under Section
229-B of U.P.Z.A. & L.R. Act & Section
49 of U.P.C.H. Act will be relevant, which
are as follows:

Section 229B of U.P. Zamindari
Abolition and Land Reforms Act, 1950

229B. Declaratory suit by person
claiming to be an asami of a holding or
part thereof.

[(1) Any person claiming to be an
asami of a holding or any part thereof,
whether exclusively or jointly with any
other person, may sue the landholder for a
1 All. Mst. Purshottami Vs. Board of Revenue & Ors.
487
declaration of his rights as asami in such
holding or part, as the case may be].

(2) In any suit under sub-section
(1) any other person claiming to hold as
asami under the land-holder shall be
impleaded as defendant.

(3) The provisions of sub-sections
(1) and (2) shall mutatis mutandis apply to
a suit by a person claiming to be a
[bhumidhar] with the amendment that for
the word "landholder" the words "the State
Government and the [Gaon Sabha] are
substituted therein.

Section
49
of
the
U.P.
Consolidation of Holdings Act, 1953

"Section 49. Bar to Civil Court
jurisdiction-
Notwithstanding
anything
contained in any other law f or the time
being in force, the declaration and
adjudication of rights of tenure-holders in
respect of land by the lying in an area, for
which a notification has been issued [under
sub-section
(2)
or
Section
4],
or
adjudication of any other right arising out
of consolidation proceedings and in regard
to which a proceeding could or ought to
have been taken under this Act, shall be
done in accordance with the provisions of
this Act and no Civil or Revenue Court
shall entertain any suit or proceeding with
respect to rights in such land or with
respect to any other matters for which a
proceeding could or ought to have been
taken under this Act:

Provided that nothing in this
section shall preclude that Assistant
Collector from initiating proceedings under
section 122-B of the Uttar Pradesh
Zamindari Abolition and Land Reforms
Act, 1950 in respect of any land, possession
over which has been delivered or deemed
to be delivered to a Gaon Sabha under or
in accordance with the provisions of this
Act."

11. Perusal of the Misilband Register
of 1967 & 1968 in respect to Case
No.1621/ 162, under Section 9-A (2) of
U.P.C.H. Act will also be relevant, which is
as under:

"समससलवन्द रजजस्टर चकबन्द सन्
1967-68 बावत् न्यायालय चकवन्द अधिकार
क्षेत् नीं०2 लालगींज जजला आजमगढ। मु०नीं०
1621/162 िारा 9(क)2जो०च० अधि० पुरषोत्तमी
वनाम ततलकिार व चौथी वनाम ततलकिार
ता०फै० 23.2.67 की छाया प्रतत फोसलयो के
साथ सींलग्न है।

1
2
3
4
5
6
7
8
9
1
0
1
1
1
2
162
1/1
62
इ
न
व
ल
वे
ला

दौ
ल
ता
बा
द
पु
र
षो
त्त
मी
ब
ना
म
तत
ल
क
िा
र
चौ
थी
ब
ना
म
तत
ल
क
िा
र
आ०न
०
587,
494
4
610/3
,354,5
51/2,,
551/1
/1,50
8,909
/1/1
सम०,7
69सम.
110
सम०
पर
वादद
नी की
सीरदा
र
होनी
चादहए

380,4
40सम
०,441
,सम,2
89सम
०281
सम०,2
74सम
०,503

3
1/
7/
6
3

खा
ता
नीं०
88
ग्रा
म
इन
वल
के
न
मबा
रान
पर
गाीं
व
स
र्ा
का
इ
न्रा
ज
खा
रर
ज
कर
के
पर
षोत्त
मी

2
3
.
3
.
6
7
1
2
3
5
2
2
/
1
/
6
8
488 INDIAN LAW REPORTS ALLAHABAD SERIES
,463/
2सम०
463/3
पर
वाद
की
सीरदा
र
होनी
चादहए
।
बेवा
सेव
क
के
ना
म
ब
तौर
सीर
दार
दजा
हो।
खा
ता
नीं०
33
ग्रा
म
इन
वल
के
न
मब
रान
पर
गाीं
व
स
र्ा
का
इ
न्रा
ज
खा
रर
ज
हो
कर
चौ
थी
पुत्
वर
न
के
ना
म
ब
तौर
सीर
दार
दजा
हो।

12. Perusal of the certified copy of the
Misilband Register, which is taken on
record as well as quoted above fully
demonstrate that the case were filed during
consolidation operation and the same were
decided vide order dated 23.2.1967 in Case
No.1621 / 162 declaring the petitioners as
Sirdar of the plot in question.

13. This Court in the case reported in
2016 (133) RD 800, Adalat Yadav vs.
D.M./ D.D.C. & Others has held that if
question relating to genuineness of any
record has to be decided then its entry in
misilband has to be examined. Paragraph
no.8 of the judgement rendered in Adalat
Yadav (supra) will be relevant for perusal,
which is as under:

"8. So far as allowing the appeal
and setting aside order of Consolidation
Officer dated 31.03.1981, is concerned,
there is serious dispute between the parties,
relating to genuineness of order dated
31.03.1981
passed
by
Consolidation
Officer in Case No. 139 of 1980. This order
was
not
given
effect
to
in
consolidation/revenue record for about 12
years, due to which, predecessors of the
petitioner has to file another suit i.e. Suit
No. 193 of 1993, in 1993 and during this
period, name of Jager Nath and thereafter
Bunela
Yadav
and
Pataroo
Yadav
remained recorded in revenue record. The
genuineness of the order dated 31.03.1981
has been challenged by the respondents.
Thus heavy burden of proof was upon the
petitioner to prove its genuineness. The
petitioner has filed photostat copy of
certified
copy
of
the
order
dated
31.03.1981 (issued on 06.08.1981) and
1 All. Mst. Purshottami Vs. Board of Revenue & Ors.
489
certified copy of goswara register issued on
04.04.2002. Under Rule 25 (e) (ii) and (f)
Assistant Consolidation Officer has been
required
to
register
Cases
of
two
categories (Section 9-A and Section 9-B) in
separate misilband register. In view of Rule
30, the Cases under Section 12 are also
required to be registered. Now a days it
has become very easy to make forgery in
goswara register (a register maintained by
Revenue Record Room, Collectorate to
register the papers consigned to it). If
question relating to genuineness of any
record has to be decided then, its entry in
misilband register has to be examined. In
the present case, from the court of Deputy
Director of Consolidation, requisitions
were sent for producing misilband register
to concerned Consolidation Officer and
Incharge
Revenue
Record
Room,
Collectorate
Deoria.
Reader
of
Consolidation Officer informed that there
is nothing to show that misilband register
of the year 1980-1981 was consigned to
record room. Incharge Revenue Record
Room, Collectorate Deoria informed that
misilband register is not endorsed in
goswara register. The petitioner also in his
application dated 14.9.2013 has mentioned
that misilband register is not traceable.
Before this Court, certified copy of
misilband register relating to cases under
Section 12 of the Act, from 19.12.1979 to
27.10.1980 was filed by the respondents, in
which at serial number 139, Case of Om
Prakash Vs. Ram Shree and others was
registered. As such it was fully proved that
there was no misilband register of the year
1980-1981. Findings of respondent-1 that
order dated 31.03.1981 passed in Case No.
139 of 1980 was suspicious/fabricated
order does not suffer from any illegality. If
the case is not duly registered in misilband
register, then trail of fabricated case will
not be permitted to be conducted by
consolidation officer, particularly after
notification under Section 52 of the Act.
However, due to the remand order, the
petitioner has still an opportunity to satisfy
Consolidation
Officer
regarding
registration of his case in misilband
register. As such no interference is
required
by
this
Court.
However
Consolidation Officer shall decide this
issue afrsh without being influenced by any
of the observation of this Court."

14. Since, the order passed during
consolidation operation could not be
incorporated
in
the
revenue
record,
accordingly, suit under Section 229-B of
U.P.Z.A. & L.R. Act was filed on behalf of
the petitioners to declare them as Sirdar of
the plot in question and trial Court has not
decreed the plaintiff's suit only on the basis
of order passed by the Consolidation Court
rather on the basis of oral and documentary
evidence adduced by the plaintiffs as well
as defendants. On behalf of the State
Lekhpal concern was examined and on
behalf
of gaon
sabha Pradhan
was
examined. The entry in C.H. Form 2A, 41
& 45 were taken into consideration by trial
Court in holding that plaintiffs are Sirdar of
the plot in suit. The finding of fact has also
been recorded by trial Court that suit is not
barred by Section 49 of U.P.C.H. Act as
there was adjudication by consolidation
Court in favour of petitioners/ plaintiffs.
The first appellate Court has maintained the
judgement and decree of the trial Court by
dismissing the first appeal filed by the
State. Board of Revenue while allowing the
second appeal filed by the State has set
aside the judgement and decree of trial
Court as well as appellate Court without
reversing the finding of fact recorded by
the trial Court in proper manner. It is also
material to mention that no substantial
question of law / point of determination
490 INDIAN LAW REPORTS ALLAHABAD SERIES
have been framed by the Board of Revenue
while passing the judgment allowing the
second appeal setting aside the judgement
and decreed passed by the trial Court as
well as first appellate Court and dismissing
the plaintiff's suit.

15. No counter affidavit has been filed
on behalf of the State before this Court
since 1983 although gaon sabha has filed
counter affidavit without annexing any
document in support of the allegation made
in the counter affidavit.

16. The instant writ petitions are
pending before this Court for last more than
41 years, as such, the dispute is to be
adjudicated on merit rather to remand the
matter for fresh adjudication which will
prolong the dispute for another 50 years.

17. On the point of Section 49 of
U.P.C.H. Act, Hon'ble Supreme Court in
the case reported in 2024 (163) RD 691,
Prashant Singh & Others Vs. Meena and
Others has considered the scope of Section
49 of U.P.C.H. Act. In the aforementioned
case,
Hon'ble
Supreme
Court
has
considered the judgement of Karbalai
Begum Vs. Mohd. Sayeed (1980) 4 SCC
396 as well as judgment of Sita Ram vs.
Chhota
Bondey
&
Others
1991
Supplement (1) 556.

18. Considering the ratio of law laid
down by Hon'ble Supreme Court from the
case of Karbalai Begum (supra) up to
Prashant Singh (supra), it is very much
clear that claim of co-tenancy will not
barred under Section 49 of U.P.C.H. Act
but other claim will be barred under
Section 49 of U.P.C.H. Act.

19. There is no proper exercise by the
Board of Revenue while deciding the
second appeal. This Court in the case
reported in 1985 R.D. 93, Sharda Devi Vs.
Board of Revenue Allahabad & Others on
the point of second appellate jurisdiction of
Board of Revenue has held as under:

"24. In the aforesaid provision
the emphasis by the Legislature is on all
the interest which the transferor is then
capable of passing in the property. In other
words it is only the interest of the
transferor which he is capable of conveying
in the property that would pass to* the
vendee and in case he is not capable of
passing any interest in the property,
nothing would pass to the vendee. In the
instant case the vendors were left with no
rights as they lost all rights, title and
interest in the plots in dispute in the
aforesaid compromise and these plots were
given in favour of the petitioner and in lieu
thereof some corresponding plots were
given to the vendors. Hence the vendors
had no interest left so as to convey the
same to the transferors. It is thus crystal
clear that the vendees had not derived any
right, title or interest in the sale deed
executed by the vendors in their favour. In
view of the discussion hereinbefore, I am of
the view that the Board of Revenue has
clearly exceeded jurisdiction under Section
100 C.P.C. read with Section 331(4) of the
Act. There was no scope of the second
appellate Court to set aside the findings of
fact
recorded
by
the
Additional
Commissioner about the fraudulent or
collusive nature of the decree. The findings
of fact were also based on evidence and
howsoever grossly erroneous they may
appear to be, when in fact they were not
erroneous, much less grossly erroneous,
the second appellate Court had no
jurisdiction to interfere with the same. The
vendors, respondent Nos. 7 and 8 had no
right, title or interest left in the plots in
1 All. Hari Chand & Anr. Vs. The Board of Revenue & Ors.
491
dispute after admitting the claim of the
petitioner in the compromise decree, so as
to be able to transfer any interest by the
sale deed dated 11.7.1966 in favour of
vendees. Hence the vendees did not derive
any title out of the sale deed.

25. In the result the writ petition
succeeds and is allowed and the judgment
and order of the Board of Revenue dated
30.7.1976
is
hereby
quashed.
The
petitioner would also be entitled to her
cost."

20. The order passed by the Board of
Revenue allowing the second appeal and
dismissing
the
plaintiff
suit
for
declaration by passing cryptic judgment
cannot be sustained in the eye of law. The
manner in which impugned judgment has
been passed by the Board of Revenue,
can be a judgment of dismissal of second
appeal, affirming judgment of courts
below but this cannot be a judgment of
reversal by which the second appeal has
been allowed and the suit under Section
229 B of U.P.Z.A. & L.R. Act has been
dismissed in the exercise of second
appellate jurisdiction.

21. Considering the entire facts and
circumstances of the case as well as ratio of
law laid down by Hon'ble Apex Court on
Section 49 of U.P.C.H. Act, finding of fact
recorded by trial Court, entry in misilband
register, the impugned judgment passed by
the Board of Revenue dated 14.9.1983 in
Second Appeal No.36 & 37 of 1979-80
cannot be sustained in the eye of law and
the same are hereby set aside.

22. The writ petitions are allowed and
the judgement and decree passed by trial
Court dated 28.1.1978 in both the suit
under Section 229-B of U.P.Z.A. & L.R.
Act are affirmed.

23. No order as to costs.
----------
(2025) 1 ILRA 491
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2025

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ- B No. 39710 of 2003

Hari Chand & Anr. ...Petitioners
Versus
The Board of Revenue & Ors.
 ...Respondents

Counsel for the Petitioners:
Ajay Srivastava, Ayub Khan, Rahul Verma,
Rajesh Tripathi, S.K. Dubey

Counsel for the Respondents:
C.S.C., A.C. Srivastava, Anil Kumar, Bhola
Nath Yadav, Chandan Sharma, Hira Lal
Singh (Kushwaha), Kamal Singh, R P Singh,
Ram Surat Saroj, Rohan Gupta, S.D.
Kautilya, S.K. Nigam, S.K. Rao, S.K. Pathak,
Satish Chandra Mishra, Shri Krishna Mishra,
Somesh Khare, V.K. Singh

Civil Law - Constitution of India - Article
226 - Civil Procedure Code,1908 - order
41 Rules 27 - U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Sections 195,
197,
198(4),
333
&
333(2)
-
U.P.
Zamindari Abolition and Land Reforms
Rules, 1952 - Sections 173(kha), 174 &
175:- Writ Petition - questioning the impugned
orders passed by Board of Revenue whereunder
Board allowed the Revision and rejecting the
recall application - Allotment of land by the
village LMC in favour of 164 ineligible persons -
approved by SDO - being aggrieved petitioners
filed a Complaint Case - allowed - Revision -
dismissed, holding that the allotment in question
had been made against the relevant provisions
of Rule, 1952 - second revision, before the
Board - dismissed, holding that second revision
is not maintainable by same persons - recall