# Raj Kumar & Ors v. Board of Revenue & Ors

- **Citation:** (2025) 4 ILRA 479
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-09
- **Case number:** Writ- B No. 26270 of 1997
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-ors-v-board-of-revenue-ors-53144
- **Pages:** 15

## Headnote

Land Reforms Act, 1950 - Section 229-B -
Scope of suit under Section 229-B, 209 of
U.P.Z.A. and L.R. Act as well as the limitation
provided for suit under the aforementioned
section - Limitation - No limitation is provided
for suit under Section 229-B of U.P.Z.A. and L.R.
Act - In respect to suit under Section 209 of
U.P.Z.A. and L.R. Act limitation of Three years
is provided under Appendix III prepared under
Rule 338 of U.P.Z.A. and L.R. Rules- Suit under
Section 229-B of the U.P. Z.A. & L.R. Act cannot
be decided without framing issues and without
affording opportunity to lead evidence to the
parties. (Para 11, 12)

B. Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950 - Section 331 (4) -
Scope of second appellate jurisdiction of Board
of Reveune - Second-appeal under Section331
(4) of U.P.Z.A & L.R. Act, before the Board of
Revenue would lie on a question of law rather
on substantial question of law (Para 15)

C. In the instant matter, suit under Section 229B/209 of the U.P. Z.A. & L.R. Act filed in the
1983 by Kanpur Development Authority was
dismissed by the trial court and the decree of
the trial court has been maintained in appeal by
the 1st Appellate Court/Additional Commissioner
but in second appellate jurisdiction, the Board of
Revenue has allowed the second appeal and
decreed the plaintiff's suit without considering
the fact that defendants petitioners have been
found in possession of the disputed plot since
before the date of vesting. Bhumidhari sanad
was issued in favour of defendant- petitioners
and defendant petitioners were accordingly
remained in possession over the plot in question
since before the date of vesting. No proceeding
for cancellation of bhumidhari sanad was
initiated by State Government as provided under
Section 137-A of the U.P.Z.A. and L.R. Act, as
such, the filing of suit in 1983 under Section
229-B/ 209 of U.P.Z.A. and L.R. Act is abuse of
process of law. Judgement passed by Board of
Revenue in exercise of second appellate
jurisdiction decreeing the plaintiff- suit and
expunging the longstanding entry of the plot in
question cannot be sustained in the eye of law.
Impugned judgement aside.(Para 14, 17, 22)

Allowed. (E-5)

## Text

_Characters 0–39,984 of 48,604. This is a partial read: ask again with offset=39984 for what follows._

4 All. Raj Kumar & Ors. Vs. Board of Revenue & Ors.
479
misconceived, is dismissed with no
order as to costs.
----------
(2025) 4 ILRA 479
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.04.2025

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ- B No. 26270 of 1997

Raj Kumar & Ors. ...Petitioners
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioners:
Anil
Kumar
Mishra,
Nagendra
Kumar
Srivastava, Neeraj Tripathi, Pradeep Kumar
Rai,
Prajyot
Rai,
Pratima
Srivastava,
Rajendra
Kumar,
Ramendra
Asthana,
Sandeep Kumar Srivastava, Shravan Kumar
Mishra, Udai Chandani

Counsel for the Respondents:
Aa Khan, Abhinava Krishna Srivastava,
Pradeep Kumar

A. Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950 - Section 229-B -
Scope of suit under Section 229-B, 209 of
U.P.Z.A. and L.R. Act as well as the limitation
provided for suit under the aforementioned
section - Limitation - No limitation is provided
for suit under Section 229-B of U.P.Z.A. and L.R.
Act - In respect to suit under Section 209 of
U.P.Z.A. and L.R. Act limitation of Three years
is provided under Appendix III prepared under
Rule 338 of U.P.Z.A. and L.R. Rules- Suit under
Section 229-B of the U.P. Z.A. & L.R. Act cannot
be decided without framing issues and without
affording opportunity to lead evidence to the
parties. (Para 11, 12)

B. Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950 - Section 331 (4) -
Scope of second appellate jurisdiction of Board
of Reveune - Second-appeal under Section331
(4) of U.P.Z.A & L.R. Act, before the Board of
Revenue would lie on a question of law rather
on substantial question of law (Para 15)

C. In the instant matter, suit under Section 229B/209 of the U.P. Z.A. & L.R. Act filed in the
1983 by Kanpur Development Authority was
dismissed by the trial court and the decree of
the trial court has been maintained in appeal by
the 1st Appellate Court/Additional Commissioner
but in second appellate jurisdiction, the Board of
Revenue has allowed the second appeal and
decreed the plaintiff's suit without considering
the fact that defendants petitioners have been
found in possession of the disputed plot since
before the date of vesting. Bhumidhari sanad
was issued in favour of defendant- petitioners
and defendant petitioners were accordingly
remained in possession over the plot in question
since before the date of vesting. No proceeding
for cancellation of bhumidhari sanad was
initiated by State Government as provided under
Section 137-A of the U.P.Z.A. and L.R. Act, as
such, the filing of suit in 1983 under Section
229-B/ 209 of U.P.Z.A. and L.R. Act is abuse of
process of law. Judgement passed by Board of
Revenue in exercise of second appellate
jurisdiction decreeing the plaintiff- suit and
expunging the longstanding entry of the plot in
question cannot be sustained in the eye of law.
Impugned judgement aside.(Para 14, 17, 22)

Allowed. (E-5)

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

1. Heard Mr. Ramendra Asthana, Mr.
Pradeep Kumar Rai, Mr. Prajyot Rai,
learned counsels for the petitioners, Mr.
Anshul Nigam, learned Standing Counsel
for the State respondents and Mr. M.C.
Chaturvedi,
learned
Senior
Counsel
assisted
by
Mr.
Abhinava
Krishna
Srivastava, learned counsel for respondent
no.3/ Kanpur Development Authority.

2. Brief facts of the case are that
respondent no.3/ Kanpur Development
Authority filed a suit under Section 229-B/
480 INDIAN LAW REPORTS ALLAHABAD SERIES
209 of the U.P. Zamindari Abolition and
Land Reforms Act, 1950 hereinafter
referred to as U.P.Z.A. and L.R. Act in
respect to plot Nos. 196, 197, 199 total area
15 bigha 19 biswa situated in Village
Chakeri Tehsil and District Kanpur Nagar
for declaration that entries of defendant
nos. 1 to 9 over the plot in question be
expunged and if defendants are found in
possession over the same, they may be
ejected from the plot in question. The
aforementioned suit was registered as suit
No. 52/85/46/87 and State of U.P. was
impleaded as defendant no.10. Defendants
have
put
in
appearance
in
the
aforementioned suit and filed their written
statement. Nine issues were framed before
the Trial Court in the aforementioned suit
and
parties
have adduced
oral
and
documentary evidences in support of their
cases. Trial Court while deciding the issue
Nos. 1 to 4 and 6 has recording finding of
fact that defendants are in possession over
the plot in question since before the date of
vesting accordingly they became adivasi
and later on bhumidhar, as such, the entry
in respect to the plot in question in the
name of defendants cannot be expunged.
The Trial Court ultimately dismissed the
aforementioned suit vide judgement and
decree
dated
5.12.1987.
Against
the
judgement and decree of Trial Court dated
5.12.1987, appeal under Section 331 of the
U.P.Z.A. and L.R. Act was filed on behalf
of respondent no.3/ Kanpur Development
Authority before the Commissioner which
was registered as appeal No. 8/1987. The
aforementioned appeal was heard and
dismissed by Additional Commissioner
vide judgement and decree dated 1.8.1988.
Against the judgement and decree of
Additional Commissioner dated 1.8.1988,
respondent no.3/ Kanpur Development
Authority filed a second appeal before
Board of Revenue which was registered as
second appeal No. 13 of 1988-89. The
Board of Revenue vide judgement dated
23.4.1997 allowed the second appeal
setting aside the judgement of Trial Court
as well as the First Appellate Court and
decreed the plaintiff suit. Hence this writ
petition filed for the following relief:-

"Issue a writ, order or direction
in the nature of certiorari to quash the
order dated 23.4.1997 of opposite party
No.1 and restore that of the Courts
below."

3. This Court entertained the matter
on 12.8.1997 and stayed the operation of
the order dated 24.3.1997 passed by Board
of Revenue.

4. In pursuance of the order dated
12.8.1997 passed by this Court, the parties
have exchanged their pleadings.

5. Mr. Ramendra Asthana, Mr.
Pradeep Kumar Rai and Mr. Prajyot Rai,
learned
counsels
for
the
petitioners
submitted that lease deed was executed by
Zamindar on 30.6.1949 in favour of
Dwarika Prasad, wife of Dwarika Prasad,
Vishwa Nath in respect to disputed plot
along with certain other plots. They further
submitted that in a suit under Section 59 of
the U.P. Tenancy Act a decree was passed
on 22.11.1952 in favour of defendants in
respect to the plot in question. They further
submitted that by operation of law,
defendants acquired right of adivasi, sirdars
and
bhumidhar
after
issuance
of
bhoomidhar sanad in their favour. They
further submitted that in the suit under
Section 229-B/209 of U.P.Z.A. and L.R.
Act, Kanpur Development Authority was
the sole plaintiff and State of U.P. was
arrayed
as defendant no.
10.
They
submitted that Trial Court vide judgement/
4 All. Raj Kumar & Ors. Vs. Board of Revenue & Ors.
481
decree dated 5.12.1987 dismissed the
plaintiff suit holding that defendants are in
possession of the plot in question since
before the date of vesting and the decree of
Trial Court was challenged by Kanpur
Development Authority only and there was
no challenge by the State Government
before any Court of law. They submitted
that plot Nos. 196,197,199 were recorded
as usar and banjar in the revenue record.
They submitted that bhumidhari- sanad was
issued in favour of defendants accordingly
the right which has been created in favour
of all the defendants cannot be annulled on
the basis of suit under Section 229-B/ 209
of the U.P.Z.A. and L.R. Act filed by
Kanpur Development Authority. They
submitted that appeal filed by Kanpur
Development Authority was dismissed by
Additional Commissioner affirming the
judgement and decree of the Trial Court.
They submitted that second appeal was
filed before the Board of Revenue again by
Kanpur Development Authority only. They
submitted that in view of the provisions
contained under Section 4 of the Urban
Planning and Development Act, 1973, the
suit under Section 229-B/ 209 of the
U.P.Z.A. and L.R. Act at the instance of
Kanpur Development Authority cannot be
entertained. They further submitted that in
view of the provisions contained under
Section 53 of U.P. Revenue Code, 2006
corresponding to Section 57 of U.P. Land
Revenue
Act,
1901,
there
will
be
presumption of correctness of the entries in
revenue record as there was no challenge
by the Kanpur Development Authority or
the State regarding the longstanding entry
of the plot in question. They submitted that
aforementioned suit under Section 229-B/
209 of the U.P.Z.A. and L.R. Act was filed
for the first time in the year 1983 which
cannot be entertained in view of the ratio of
law laid devidence in accordance with law.
own by Hon'ble Apex Court in the case
reported in 1996 (7) SCC 767 Mohd.
Noorul Hoda Vs. Bibi Raifunnisa and
Others. They further submitted that in view
of the provisions contained under Section
20 of the U.P.Z.A. and L.R. Act, the right
and title accrued in favour of defendants
cannot be negatived in any manner. They
submitted that judgement and decree
passed by Board of Revenue while
allowing the second appeal as well as
decreeing the plaintiff suit cannot be
sustained in the eye of law in view of the
ratio of law laid down by this Court in the
case reported in 2004 (1997) RD 119 Ved
Prakash Vs. Board of Revenue, U.P.
Lucknow. They submitted that judgement
of reversal cannot be passed by Appellate
Court unless the finding of fact recorded by
Trial Court is reversed in proper manner in
view of the ratio of law laid down in the
case reported in 2024 (3) ARC 641 Ram
Chandran and Others Vs. State of U.P.
and Others. They submitted that in any
case, the Board of Revenue cannot decree
the plaintiff suit in exercise of second
appellate jurisdiction rather they should
follow the procedure prescribed under
Order 41 Rule 23, 23-A, 24, 25, 27 of Code
of Civil Procedure. They submitted that due
to operation of law, the defendants have
been recorded as bhumidhar of the plot in
question, as such, the entry of the plot in
question cannot be expunged after such a
long period on the basis of suit filed under
Section 229-B/ 209 of U.P.Z.A. and L.R.
Act in view of the ratio of law laid down by
this Court in the case reported in 2018 ACJ
1181 Jitendra Kumar Vs. State of U.P. and
Others. They further submitted that in view
of
the
continuous
and
uninterrupted
possession of the defendants over the plot
in question, the suit under Section 229-B/
209 of the U.P.Z.A. and L.R. Act filed by
Kanpur Development Authority cannot be
482 INDIAN LAW REPORTS ALLAHABAD SERIES
decreed in view of the ratio of law laid
down by Hon'ble Apex Court in the case
reported in AIR 1970 (SC) 1778 State of
West Bengal Vs. Dalhousie Institute
Society .They submitted that in view of the
ratio of law laid down by Hon'ble Apex
Court in the case reported in 2019 (5) ADJ
302 Rakesh and Others Vs. Board of
Revenue and others, the right and title
created in favour of defendants cannot be
taken away on the basis of suit filed by
Kanpur Development Authority under
Section 229-B/ 209 of U.P.Z.A. and L.R.
Act. They further submitted that this Court
in the case reported in 2022 (7) ADJ 16
Bhagwati Deen Vs. Sheetaldin and Others
has considered the controversy relating to
accrual of sirdari/ adivasi/ bhoomidhari
right on the basis of entry of 1359 fasli
which will be applicable in the instant
matter. They submitted that judgement
and decree passed by Board of Revenue
should be set aside and the plaintiff suit
should be dismissed accordingly.

6. On the other hand, Mr. M.C.
Chaturvedi, learned Senior Counsel
assisted by Mr. Abhinava Krishna
Srivastava,
learned
counsel
for
respondent no.3/ Kanpur Development
Authority
submitted
that
plot
in
question was vacant land before the
date of vesting and after abolition of
zamindari, the plot in question was
initially vested in State and later on in
favour of Gram Sabha. He further
submitted that vide notification dated
6.9.1978, the plot in question came
under Nagar Maha Palika and later on
the same has been vested in Kanpur
Development Authority. He further
submitted that plot in question was
remained recorded up to 1362 fasli in
the name of Gram Sabha but after 1962
fasli, the name of defendants were
recorded
in
frauduent
manner
in
collusion of revenue officials. He
submitted that no sirdari or bhumidhari
can be accrued in favour of defendants
in view of the provisions contained
under Section 20 (b) of the U.P.Z.A.
and L.R. Act. He further submitted that
in view of the provisions contained
under Section 24 of U.P.Z.A. and L.R.
Act, the case of lease set up by the
defendants cannot be entertained and
allowed by any Court of law. He further
submitted that the judgement passed
under Section 59 of U.P. Tenancy Act
between two private parties will not be
binding upon the respondent no.3/
Kanpur Development Authority. He
further submitted that in view of the
provisions contained under Section 56
of the U.P. Tenancy Act, there is no
illegality in the impugned judgement
passed by Board of Revenue decreeing
the plaintiff suit under Section 229B/209 of U.P.Z.A. and L.R. Act. He
submitted that there is no requirement
for framing substantial question of law
by
the
Board
of
Revenue
while
exercising
the
second
appellate
jurisdiction under Section 331 (4) of the
U.P.Z.A. and L.R. Act as held by
Hon'ble Apex Court in the case of State
of
Uttarakhand
(Prev.
U.P.)
Vs.
Mohan Singh 2012 (13) SCC 281. He
further
submitted
that
Board
of
Revenue has rightly exercised the
second appellate jurisdiction in view of the
provisions contained under Code of Civil
Procedure. He further submitted that
second Appellate Court can decide the
matter finally rather to remand the matter
before the Trial Court. He further submitted
that no interference is required against the
impugned order passed by Board of
Revenue and writ petition is liable to be
dismissed. He further placed reliance upon
4 All. Raj Kumar & Ors. Vs. Board of Revenue & Ors.
483
the following judgements of Hon'ble Apex
Court as well of this Court in support of his
argument:-

"1. 2018 0 Supreme(All) 2484
Amrit Lal & Ors vs. State of U.P. Thru
Collector, Lucknow & Ors

2. 2013 0 AIR (SC) 38 State if
Uttarakhand (Previously State of Uttar
Pradesh) vs. Mohan Singh & Ors

3. 2005 0 AIR(SC) 3110 the
State of Andhra Pradesh & Anr vs. T.
Suryachandra Rao

4. 2010(2) ADJ 514 Suresh Giri
and Others vs. Board of Revenue, U.P.
Allahabad and Others

5. 2003 8 SCC 319 Ram
Chandra Singh vs. Savitri Devi & Ors

6.
2012
0
AIR(SC)
3285
Bhartiya Seva Samaj Trust Tr. Pres. &
Another vs. Yevidence in accordance with
law. ogeshbhai Ambala Patel & Another

7. 2023(9) ADJ 208 Basdev vs.
State of U.P. and Others

8. 1964 (7) SCR 800 Amba
Prasad Vs. Abdul Noor Khan and Ors.

9. 2015 (128) RD 24 Raj Kishore
(dead) Through LRs and Ors Vs. Heera
(dead) Through LRs and Ors

10. SPL (Civil) No. 15774/ 2022
M/S Paul Rubber Industries Private Ltd.
Vs. Amit Chand Mitra and Ors

11. Consolidation No. 168 of
1985 Hanuman And Ors Vs. Bansraj and
Ors."

7. Mr. Anshul Nigam, learned
Standing Counsel for the State respondents
submitted that in view of the provisions
contained under Section 4 of U.P. Urban
Planning and Development Act, there were
no illegality in the judgement and decree
passed by Board of Revenue while
deciding the second appeal decreeing the
suit
filed
by
Kanpur
Development
Authority. He further submitted that in the
aforementioned suit under Section 229-B/
209 of U.P.Z.A. and L.R. Act, State has
admitted the plaint allegations of the suit
filed by Kanpur Development Authority, as
such, there was no illegality in filing of suit
by Kanpur Development Authority without
associating the State as plaintiff in the suit.
He submitted that writ petition filed by
petitioners should be dismissed.

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

9. There is no dispute about the fact
that suit under Section 229-B of U.P.Z.A.
and L.R. Act filed by respondent no.3/
Kanpur
Development
Authority
was
dismissed by Trial Court and judgement
and decree of Trial Court was maintained
in appeal by Additional Commissioner.
There is also no dispute about the fact that
second appeal filed by respondent no.3/
Kanpur
Development
Authority
was
allowed setting aside the judgement and
decree of the Trial Court as well as first
Appellate Court and the suit of plaintiff
was decreed accordingly.

10. The point of determination which
are involved in the writ petition is about the
scope of suit under Section 229-B, 209 of
U.P.Z.A. and L.R. Act as well as the
limitation provided for suit under the
aforementioned section as well as scope of
second appellate jurisdiction of Board of
Reveune under Section 331 (4) of the
U.P.Z.A. and L.R. Act. The scope of
proceeding
regarding
grant
and
cancellation of bhumidhari sanad are also
to be considered in the instant petition
coupled with the fact regarding acquisition
of part of the area of the plot in dispute by
the
authorities
and
payment
of
484 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation to the recorded owner of the
plot in dispute.

11. So far as the suit under Section
229-B of the U.P. Z.A. & L.R. Act, is
concerned, this Court in the case reported
in 2005 (99) RD 529 Pan Kumari Vs.
Board of Revenue and Others has held that
the suit of aforementioned category, is
treated to be a suit of special character and
no limitation is provided for suit under
Section 229-B of U.P.Z.A. and L.R. Act
however in respect to suit under Section
209 of U.P.Z.A. and L.R. Act is concern,
the
limitation
was
provided
under
Appendix III. Paragraph No. 6 of the
judgement rendered in Pan Kumari (Supra)
will be relevant for perusal which is as
under:-

"6. Sri R.C. Singh submits that
the suit under Section 229-B was barred
by limitation. In support of this contention
he relies upon Section 341 of the U.P.
Zamindari Abolition and Land Reforms
Act, which provides that the Limitation
Act would be applicable to proceedings
under the U.P. Zamindari Abolition and
Land Reforms Act and limitation in a suit
for declaration would be governed by
Article 137 of Schedule 1 of the Limitation
Act as there is no period prescribed for
such a suit under the U.P.Z.A. & L.R. Act.
Section 341 itself provides that the
provisions of certain Acts including the
Limitation
Act
shall
apply
to
the
proceedings under the U.P. Z.A. & L. R.
Act unless otherwise provided in the
U.P.Z.A. & L.R. Act. Rule 338 of the
U.P.Z.A. and L.R. Rules provides that the
suits, applications and Ors. proceedings
specified in Appendix III shall be
instituted within the time specified therein
for them respectively. Recourse to the
provisions of the Limitation Act would be
available only if there is no provision
under Rules in respect of the period of
limitation for the different classes of suits
or proceedings mentioned therein. In
Appendix III the period of limitation
provided for different classes of suits has
been given. As regards suits under Section
229-B column 4, which prescribes the
period of limitation for different classes of
suit says "none". It would therefore be
treated that there is no limitation for filing
a suit under Section 229-B. Section 9 of
the Civil Procedure Code provides that all
suits of civil nature shall be instituted in
the civil court except those, which have
been accepted. A suit under Section 229-B
falls within the excepted category and
such suits even though they involve
declaration
are
suits
of
a
special
character. Article 137 of the Limitation
Act relied upon by Sri Singh in any case is
applicable only to applications and not to
suits and therefore has no play. When the
rule making authority has provided
different periods of limitation for different
classes of suits it would be treated that
provisions prescribing period of limitation
in the Limitation Act would not be
applicable to suits under the U.P.Z.A. &
L.R. Act. Section 189 U.P.Z.A. & L. R. Act
sets out the circumstances in which the
interest of a bhumidar is extinguished.
Clauses (a) (aa) and (b) relate to cases
where the bhumidar dies leaving no heir,
or where he has let out his holding in
contravention of the provisions of the Act
or where the land is acquired. Sub-section
(C) of Section 189 provides that where a
bhumidar
has
lost
possession
the
bhumidari right would extinguish when
the right to recover possession is lost. In
Ram Naresh v. Board of Revenue 1985
R.D. 444 relied upon by Sri R. C. Singh it
was held that the provisions of Section 27
of the Limitation Act would be attracted to
4 All. Raj Kumar & Ors. Vs. Board of Revenue & Ors.
485
suits instituted under Section 229-B.
Section
27
provides
that
on
the
determination of the period limited for
instituting a suit for possession the right to
such property shall be extinguished. The
rule is an exception to the general rule
that limitation bars the remedy but does
not extinguish the right. If however a
person is in possession his right can not
be extinguished unless the case is covered
by Clauses (a) (aa) and (b) of Section 189.
He can therefore seek a declaration of his
right at any point of time. If a person has
been dispossessed he would have to
institute a suit under Section 209 U.P.Z.A.
& L.R. Act. Appendix III provides the
period for limitation for filing a suit under
Section 209. It would follow therefore that
a suit under Section 229-B would be
barred by limitation the bhumidar is out of
possession and his right to file a suit
under Section 209 is barred by limitation.
The finding of fact recorded on the
question of possession is that the plaintiffs
have
established
their
continuous
possession over the disputed land. The
finding is not shown to be vitiated by any
error. As the rights of the plaintiff were
never
extinguished
no
question
of
limitation arises. For the reasons given
above the writ petition lacks merit and is
dismissed. "

12. This Court in the case reported in
2020 (146) RD 186 Babu vs. Mahavir and
Others has held that the suit under Section
229-B of the U.P. Z.A. & L.R. Act cannot
be decided without framing issues and
without affording opportunity to lead
evidence to the parties. Paragraph nos. 2, 3
& 4 will be relevant for perusal which are
as under:-

"2. The manner in which the
suit instituted by the respondent no.1
under Section 229-B of U.P. Z.A. &
L.R.Act has been decided by the impugned
order
dated
28.01.2019
cannot
be
appreciated. The trial court has neither
framed issues nor has provided any
opportunity of leading evidence to the
parties to prove their respective cases. The
provisions contained in Code of Civil
Procedure has been given a go bye.

3. As already observed above by
the Court in its order dated 21.02.2019,
the proceedings under Section 229-B of
U.P.Z.A
&
L.R
Act
are
regular
proceedings where declaration of rights in
a holding is decided on the basis of
evidence.

4.
Learned
counsel
for
respondent no.1 has also not been able to
defend the impugned order; rather he
appears to agree that the matter ought to
have been remanded to the Sub-Divisional
Officer concerned."

13. The limitation provided under
Appendix III prepared under Rule 338 of
U.P.Z.A. and L.R. Rules is as under:-

Sl
N
o.
Secti
on of
the
Act
Descript
ion
of
suit,
applicati
on
and
other
proceedi
ngs
Period
of
limitat
ion
Time
from
which
period
begins
to run
Proper
Court
fees
1
2
3
4
5
6

209
Suit for
ejectme
nt of a
person
taking
or
retainin
g
possessi
on
of
the land
unlawfu
lly
and
486 INDIAN LAW REPORTS ALLAHABAD SERIES
for
damages
:

(I) If the
person
was
in
possessi
on
of
the land
on
the
date of
vesting
of
and
the
period
of
limitatio
n for his
ejectme
nt
specifie
d in the
U.P.
Tenancy
Act,
1939
had not
expired.
Three
years
From
the date
of
vesting
As in
the
Court
Fees
Act,
1870,
on one
year's
rent
calcula
ted at
heredit
ary
rates.

(ii)
In
case of
occupan
t
referred
to
in
Section
144.
Three
years
From
the date
of
declara
tion
under
Section
144
Ditto

(iii)
In
case of
occupan
ts
of
land
held by
a
bhumid
har
in
the
Govern
ment
Estates
in which
the
provisio
ns of the
Act
Six
years
From
1st
of
July
followi
ng the
date of
occupat
ion
Ditto
have
been
extende
d
from
time to
time
(includi
ng
85
settled
Bhabar
Villages
of Tarai
and
Bhabar
Goverm
ent
Estates).

(iv)
In
case of
occupan
ts of any
other
land
held by
bhumid
har
or
asami
where
possessi
on
of
such
land
is
taken or
retained
unlawfu
lly.
Twelv
e
years
Ditto
Ditto

14. In the instant matter, suit under
Section 229-B/209 of the U.P. Z.A. & L.R.
Act
filed in the
1983
by
Kanpur
Development Authority was dismissed by
the trial court and the decree of the trial
court has been maintained in appeal by the
1st
Appellate
Court/Additional
Commissioner but in second appellate
jurisdiction, the Board of Revenue has
allowed the second appeal and decreed the
plaintiff's suit without considering the fact
that defendants petitioners have been found
in possession of the disputed plot since
before the date of vesting.
4 All. Raj Kumar & Ors. Vs. Board of Revenue & Ors.
487

15. So far as the second appellate
jurisdiction under Section 331(4) of the
U.P. Z.A. & L.R. Act exercised by the
Board of Revenue is concerned, the
Hon'ble Apex Court in the case of State of
Uttarakhand (Supra) has held that the
second-appeal under Section-331 (4) of
U.P.Z.A & L.R. Act, before the Board of
Revenue would lie on a question of law
rather on substantial question of law.
Paragraph Nos. 26, 27 & 28 of the
judgment of Hon'ble Apex Court rendered
in State of Uttarakhand (supra) will be
relevant for perusal which are as under:-

"26. We are of the view that the
principle laid down in Mahindra and
Mahindra and the judgments referred to
earlier clearly apply when we interpret
sub-section (4) of Section 331 of the U.P.
Act. Sub-section (4), as we have already
indicated, has used the expression "on any
of the grounds" specified in Section 100 of
the C.P.C. Consequently, the then existing
Section 100 (i.e. section 100, as it existed
in 1908 unamended) was incorporated in
sub-section (4) of Section 331 and
substitution of the new Section 100 does
not affect or restrict the grounds as
incorporated. The right of appeal to the
Board of Revenue under sub-section (4) of
Section 331 clearly intended to be limited
to the grounds set out in the then existing
Section 100, since those were the grounds
which were before the Legislature and to
which the Legislature could have applied
its mind and it is reasonable to assume
that it was with reference to those specific
and known grounds that the Legislature
intended to limit the right of appeal.

27. The appeal before the
Board of Revenue would, therefore, lie
on a question of law. This legal aspect
was not considered properly either by
the Board of Revenue or by the High
Court. Further, we also notice that the
Board of Revenue has not examined the
provisions of the land record and
Lekhpal Diary No., date and P.A. 10.
The
Additional
Commissioner
had
specifically noticed that P.A.10 which
had been filed pertaining to year 1976
did not bear any signature and the same
was found to be doubtful, as to whether
the original 'Kashtkar' (tillers) of the
land in dispute belonged to Tharu tribe,
was
also
not
properly
examined.
Further, the Board of Revenue also
should have examined whether the land
belonged to Tharu tribe and the plaintiff
could claim the benefit of Section 210 of
the U.P. Act. All these aspects are very
vital for a proper and just adjudication
of the dispute, which has not been done.

28. In such circumstances, we
are inclined to allow the appeals and set
aside the order passed by the High Court
as well as that of the Board of Revenue
and the matter is remanded to the Board
of Revenue for fresh consideration, in
accordance with law. However, we are
not expressing any opinion on the merits
of the case, since we are remitting the
matter to the Board of Revenue. The
Board of Revenue will pass the final
orders within a period of three months
from the date of receipt of this order."

16. This Court in the case reported
in 2018 All C.J. 1181 Jitendra Kumar
Urf Gopal Vs. State of U.P. and Others
as cited by learned counsel for the
petitioners has held that when tenure
holder who was earlier granted patta
becomes bhumidhar with transferable
rights then howsoever much the patta
which was granted earlier has cancelled it
would not effect his right has bhumidhar.
Paragraph Nos. 8 and 9 of the judgement
rendered by this Court in Jitendra Kumar
488 INDIAN LAW REPORTS ALLAHABAD SERIES
Urf Gopal (Supra) will be relevant for
perusal which are as under:-

"(8) Having heard the learned
counsel for the parties, I am of the view
that the impugned orders cannot be
sustained. First of all, the notice was
barred
by
limitation.
Secondly,
the
petitioner by an order of the State had
been
declared
a
bhumidhar
with
transferable rights and the cancellation of
the patta was of no consequence and
thirdly
the
ground
taken
for
the
cancellation of the patta was also not in
existence. If the period of limitation as is
prescribed under the Act of 1950 expires
then no notice can be issued even if there
are irregularities in the patta. Further
even if a suo motu notice is to be issued by
the Collector then also the question of
limitation would arise and notices have to
be issued well within the time prescribed
by the 1950 Act.

(9). What is more, once when a
tenure holder who was earlier granted a
patta
becomes
a
bhumidhar
with
transferable rights, then howsoever much
the patta which was granted earlier is
cancelled it would not affect his right as a
bhumidhar and he shall continue to
remain a bhumidhar over the land in
question."

17. It is material to mention that in the
instant case, the defendant petitioners are in
possession of the plot in question since
before the date of vesting and part of the
disputed land has been acquired by the
authorities as well as award has been made
in favour of recorded tenure holders and the
amount of compensation has been received
by the recorded tenure holders, as such, suit
filed by the Kanpur Development Authority
for the remaining area which was not
acquired was rightly dismissed by the Trial
Court as well as the First Appellate Court.
It is also material to mention that
bhumidhari sanad was issued in favour of
defendant- petitioners in accordance with
the
provisions
contained
under
the
U.P.Z.A. and L.R. Act and defendant
petitioners were accordingly remained in
possession over the plot in question since
before the date of vesting. It is material to
mention that no proceeding for cancellation
of bhumidhari sanad was initiated by State
Government as provided under Section
137-A of the U.P.Z.A. and L.R. Act, as
such, the filing of suit in 1983 under
Section 229-B/ 209 of U.P.Z.A. and L.R.
Act is abuse of process of law.

18. The provision relating to grant of
bhumidhari sanad as contained under
Section 134 to 137-A of U.P.Z.A. and L.R.
Act will be also relevant for perusal which
were as under:-

"S.
134.
Acquisition
of
bhumidhari rights by a sirdar.-(1) If a
sirdar belonging to the class mentioned in
clause (a) of section 131 pays or offers to
pay to the credit of the State Government
an amount equal to ten times the land
revenue payable or deemed to be payable
on the date of application for the land of
which he is the sirdar, he shall, upon an
application duly made in that behalf to an
Assistant Collector, be entitled, with effect
from the date on which the amount has
been deposited, to a declaration that he
has acquired the rights mentioned in
section 137 in respect of such land :

Provided that the right to pay or
offer to pay the amount aforementioned
shall cease on the expiry of three months
from the date to be notified by the State
Government.

Explanation
I.-In
this
subsection 'land' includes share in land.
4 All. Raj Kumar & Ors. Vs. Board of Revenue & Ors.
489

Explanation II-For the purpose
of this section the land revenue payable
shall-

(a) in respect of land referred to
in the proviso to clause (a) of sub-section
(1) of section 246 be an amount arrived at
after all the increases have been given
effect to; and

(b) in respect of land to which
the proviso to section 247 applies, be an
amount determined at hereditary rates
under that section.

(2) The amount referred to in
sub-section (1) may be paid in cash or, if
the State Government so prescribes in
form of bonds or otherwise.

S. 135. Treasury chalan tto
accompany the application under section
134-The application referred to in section
134 shall be accompanied where the
amount is paid in cash, by a treasury
chalan and in any other case, by such
document
or
evidence
as
may
be
prescribed showing that the amount
aforesaid has been deposited and shall
briefly describe the right in which the
application claims the land.

S. 136. Amount to be deposited
under section 134.-Where a sirdar or his
predecessor-in-interest was, on the date
immediately preceding the date of vesting,
a hereditary tenant of the holding, the
amount to be deposited under section 134
shall, notwithstanding anything contained
in this Act, be equal to, ["ten times the
land revenue payable by him or, if the said
land revenue exceeds an amount double
that computed at the applicable hereditary
rates, ten times such amount].

S. 137. Grant of certificate - (1)
If the application has been duly made and
the Assistant Collector is satisfied that the
applicant is entitled to the declaration
mentioned in section 134, he shall grant a
certificate to that effect.

(2) Upon the grant of the
certificate, under sub-section (1) the
sirdar shall, from the date thereof-

(a) become and be deemed to be
a bhumidhar of the holding or the share
in respect of which the certificate has been
granted, and

(b) be liable for payment of such
reduced amount on account of land
revenue for the holding or his share
therein, as the case may be, as shall be
one-half of the amount of land revenue
payable or deemed to be payable by him
therefor on the date of application.

Provided further that in the
cases referred to in Explanation II of
section 134 the sirdar shall, during the
period a reduced amount is payable in
accordance with section 246 or 247, be
liable for payment of one-half of the
amount payable from time to time.

Explanation- For purposes of
clause (b) the land revenue payable by a
sirdar on the date aforesaid shall, where it
exceeds an amount double that computed
at the hereditary rates applicable, be
deemed to be equal to such amount."

(2-A) Where the certificate is
granted on a date other than the first day
of the agricultural year, the land revenue
payable by the bhumidhar under clause
(b) of sub-section (2) for the remainder of
the agricultural year in which it is granted
shall be determined in such manner as
may be prescribed.

S. 137-A. Cancellation of a
certificate.-(1) A certificate granted under
section 137 may, on the application of the
State
Government
or
any
person
interested, be cancelled or modified by the
Assistant
Collector for
any of the
following reasons, namely-

(a) that the certificate was
obtained fraudulently by the making of a
false suggestion, or by the concealment
490 INDIAN LAW REPORTS ALLAHABAD SERIES
from the Assistant Collector of something
material to the case;

(b) that the certificate was
obtained by means of an untrue allegation
of a fact essential in point of law to justify
the grant thereof, though such allegation
was made in ignorance or inadvertently;

(c) that a decree or order passed
by a competent court in a suit or other
proceeding with respect to the holding for
which certificate has been granted shows
that the applicant was not entitled to the
certificate.

(2) Where the certificate is
cancelled under sub-section (1), the
person who deposited the amount referred
to in section 134 shall be entitled to its
refund :

Provided that an amount which
shall be equal to the reduced amount of
land revenue payable under clause (b) of
sub-section (2) of section 137 shall be
deducted from it."

19. The provision of Section 134,
135, 136 of U.P.Z.A. and L.R. Act was
omitted by U.P. Act No. 8 of 1977 (w.e.f.
28.1.1977) and provision contained under
Section 137-A of U.P.Z.A. and L.R. Act
was omitted by U.P. Act No. 35 of 1976
but Section 136 of U.P.Z.A. and L.R. Act
was substituted by U.P. Act No. 35 of 1976
which was as under:-

"section.136 of U.P.Z.A. and
L.R. Act- Amount to be deposited under
section 134---- where a sirdari or his
predecessor-in-interest was, on the date
immediately preceding the date of
vesting, a hereditary tenant of the
holding, the amount to be deposited
under section 134 shall, notwithstanding
anything contained in this Act, be equal
to, ["ten times the land revenue payable
by him or, if the said land revenue
exceeds
an
amount
double
that
computed at the applicable hereditary
rates, ten times such amount]."

20. The Full Bench of this Court in
the case reported in 1971 RD 371
Banshidhar Vs. Smt. Dhirajadhari and
Others as well as Hon'ble Apex Court in
the case reported in 2000 (91) RD 277
Deo Narain and another Vs. Ram Saran
and Others has considered the provision
regarding grant of bhumidhari sanad.
Paragraph Nos. 6 to 9 of the judgement
rendered by Hon'ble Apex Court in the
case of Deo Narain (Supra) will be
relevant for perusal which is as under:-

"6.
As
we
have
already
indicated, the decision in this appeal
depends upon the interpretation of
Sections 134 and 137 of the U.P.
Zamindari Abolition and Land Reforms
Act. These Sections read as follows :

"S.
134.
Acquisition
of
bhumidhari rights by a sirdar. -(1) If a
sirdar belonging to the class mentioned
in clause (a) of Sec. 131 pays or offers to
pay
to
the
credit
of
the
State
Government an amount equal to ten
times the land revenue payable or
deemed to be payable on the date of
application for the land for which he is
the sirdar, he shall, upon an application
duly made in that behalf to an Assistant
Collector, be entitled, with effect from
the date on which the amount has been
depoosited, to a declaration that he has
acquired the rights mentioned in Sec.
137 in respect of such land.

Provided that the rights to pay
or offer to pay the amount aforementioned
shall cease on the expiry of three months
from the date to be notified by the State
Government.
4 All. Raj Kumar & Ors. Vs. Board of Revenue & Ors.
491

Explanation I - In this subsection 'land' includes shares in land.

Explanation II - For the purpose
of this section the land revenue payable
shall -

(a) in respect of land referred to
in the proviso to clause (a) of sub-section
(1) of Sec. 246 be an amount arrived at
after all the increases have been given
effect to; and

(b) in respect of land to which
the proviso to Sec. 247 applies, be an
amount determined at hereditary rates
under that section.

(2) The amount referred to in
sub-section (1) may be paid in case or, if
the State Government so prescribes, in
form of bounds or otherwise."

S. 137. Grant of certificate. - (1)
If the application has been duly made and
the Assistant Collector is satisifed that the
applicant is entitled to the declaration
mentioned in section 134, he shall grant a
certificate to that effect.

(2) Upon the grant of the
certificate, under sub-section (1), the
sirdar shall, from the date on which the
amount referred to in sub-section (1) of
Section 134 has been deposited-

(a) become and be deemed to be
a bhumidhar of the holding or the share
in respect of which the certificate has been
granted; and