# Ram Naresh & Anr v. Board of Revenue, U.P. & Ors

- **Citation:** (2023) 3 ILRA 1141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-10
- **Case number:** Writ-B No. 4678 of 1989
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-naresh-anr-v-board-of-revenue-u-p-ors-49786
- **Pages:** 10

## Headnote

A. Civil Law - U.P. Zamindari Abolition and
Land Reforms Act,1950 - Section 229B -
Declaratory Suit - Surrender - petitioner
filed a suit u/s 229B of the UP Z.A. & L.R.
Act claiming co-tenancy right, alleging
that plot in dispute is ancestral and after
death of common ancestor plaintiff and
defendant
no.
1
become
owner
in
possession of the plot in dispute -
Defendant
alleged
that
plaintiff
has
surrendered the land & that plaintiff's
rights has been extinguished - Held -
plaintiff and defendant are member of the
family and possession of one co-sharer is
possession of all, as such merely by
living/residing in the Sasural, the plaintiff
will not be deprived of his right in the plot
in dispute - the plea of surrender set up by
the defendant not proved - plaintiff
entitled to the decree of 1⁄2 share in the
plot - (Para 10, 16)

B. U.P. Zamindari Abolition and Land
Reforms
Act,1950
-
Section
229B
-
Limitation for filing suit - there is no
limitation for filing suit under Section
229B of U.P.Z.A. & L.R. Act (Para 16)

C. U.P. Consolidation of Holdings Act,
1953 - Section 49 - right of co-sharer
will not be defeated due to non-claiming
of partition of joint share and separate
chak
in
joint
property
during
consolidation proceeding and even the
right of co-sharer will not come to an
end under Section 49 of the U.P.
Consolidation of Holdings (Para 13)

Allowed. (E-5)

List of case cited:
1142 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

3 All. Ram Naresh & Anr. Vs. Board of Revenue, U.P. & Anr.
1141
submissions of the State counsel for the
following reasons and the judgments of the
Apex Court which lay down the criteria for
consideration of appeals against acquittal.
The chain has been found to be incomplete.
While going through the judgment it is very
clear that the court below has given a
categorical finding that the evidence is so
scanty that the accused cannot be punished
/convicted for the offences for which he
was charged. The factual scenario in the
present case will not permit us to take a
different view then that taken by the court
below. In that view of the matter we are
unable to satisfy ourselves. Thus we concur
the findings of the court below.

24. After considering the facts and
circumstances of the present case and
appraisal of the evidence available on
record and on the contours laid down by
the judgment of the Apex Court, we have
no other option but to concur with the
reasoning of acquittal recorded by the
learned Sessions Judge for the aforesaid
reasons.

25. The appeal sans merits and is
dismissed. The record and proceedings be
sent back to the Court below. The bail and
bail bonds are cancelled.
----------
(2023) 3 ILRA 1141
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 4678 of 1989

Ram Naresh & Anr. ...Petitioners
Versus
Board of Revenue, U.P. & Ors.
 ...Respondents
Counsel for the Petitioners:
Sri S.N. Singh, Sri A.N. Bhargava. Sri Ajay
Kumar Banerjee, Sri Anil Kumar Rai, Sri R.N.
Singh, Sri Vishnu Singh

Counsel for the Respondents:
C.S.C., Sri A.P. Srivastava, Sri Ajay Kumar
Banerjee, Sri Anil Pathak, Sri Manoj Kumar
Singh, Sri Prabhakar Singh, Sri Rakesh Pathak,
Sri S.P. Singh

A. Civil Law - U.P. Zamindari Abolition and
Land Reforms Act,1950 - Section 229B -
Declaratory Suit - Surrender - petitioner
filed a suit u/s 229B of the UP Z.A. & L.R.
Act claiming co-tenancy right, alleging
that plot in dispute is ancestral and after
death of common ancestor plaintiff and
defendant
no.
1
become
owner
in
possession of the plot in dispute -
Defendant
alleged
that
plaintiff
has
surrendered the land & that plaintiff's
rights has been extinguished - Held -
plaintiff and defendant are member of the
family and possession of one co-sharer is
possession of all, as such merely by
living/residing in the Sasural, the plaintiff
will not be deprived of his right in the plot
in dispute - the plea of surrender set up by
the defendant not proved - plaintiff
entitled to the decree of 1⁄2 share in the
plot - (Para 10, 16)

B. U.P. Zamindari Abolition and Land
Reforms
Act,1950
-
Section
229B
-
Limitation for filing suit - there is no
limitation for filing suit under Section
229B of U.P.Z.A. & L.R. Act (Para 16)

C. U.P. Consolidation of Holdings Act,
1953 - Section 49 - right of co-sharer
will not be defeated due to non-claiming
of partition of joint share and separate
chak
in
joint
property
during
consolidation proceeding and even the
right of co-sharer will not come to an
end under Section 49 of the U.P.
Consolidation of Holdings (Para 13)

Allowed. (E-5)

List of case cited:
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Bechu Vs Board of Revenue & ors. 1966 ALJ
1063

2. Jaggu & anr. Vs Deputy Director of
Consolidation 1982 RD 217

3. Ram Briksha & anr. Vs Deputy Director
Consolidation & ors. 2017 (6) ADJ 356 (DB)

4. Karbalai Begum Vs Mohd. Sayeed & anr. AIR
1981 SC 77

5. Sharda Devi Vs Board of Revenue U.P. & ors.
1985 RD 93

6. Pan Kumari Vs Board of Revenue U.P. at
Allahabad & ors. 2005 (99) RD 529

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

1. Heard Mr. Vishnu Singh, Counsel
for the petitioner. Nobody appeared for the
contesting respondents.

2. Brief facts of the case are that
petitioner filed a suit under Section 229B of
the UP Z.A. & L.R. Act claiming cotenancy right in respect to the plot in suit
situated
in
village
Bharlai,
Paragna
Sheopur,
District
Varanasi
with
the
allegation that plot in dispute is ancestral
and after death of common ancestor
plaintiff and defendant no. 1 become owner
in possession of the plot in dispute. It is
also alleged in the plaint that plaintiff's
father deposited the amount and obtained
bhumidhari sanad on 10.01.1950 but after
death of plaintiff's father the name of
defendant no. 1 was only recorded in the
revenue records hence the suit. Defendantrespondents filed written statement in the
aforementioned suit denying the plaint
allegations and in the additional statement
it has been alleged that plaintiff has
surrendered the land in question in 1912
and since then respondents have been in
continuous possession of the plot in
question. It is further alleged that on the
basis of surrender of the land plaintiff's
rights has been extinguished. Trial Court
vide judgment and decree dated 16.02.1976
dismissed the plaintiff's suit. Against the
decree of the Trial Court dated 16.02.1976
petitioner filed an appeal before the
Commissioner which was allowed vide
judgment dated 14.10.1977. Against the
judgment of the First Appellate Court dated
14.10.1977 second appeal No. 15 of 197778 was filed before the Board of Revenue
by the defendants, the second appeal No. 15
of 1977-78 was heard by Board of Revenue
and vide order dated 31.07.1978 allowed the
second appeal setting aside the judgment and
decree of First Appellate Court and the
judgment of the Trial Court was affirmed.
Against the judgment of Second Appellate
Court dated 31.07.1978 petitioner filed Writ
Petition No. 9421 of 1978 which was allowed
by this Court vide judgment dated 25.09.1985
and remanded the matter before the Board of
Revenue to decide the second appeal afresh
in accordance with law. After remand order
dated 25.09.1985 passed by this Court second
appeal was heard by Board of Revenue afresh
and vide judgment dated 28.12.1988 the
second appeal was allowed again setting
aside the judgment and decree of First
Appellate Court date 14.10.1977 hence this
writ petition. This Court while entertaining
the writ petition on 28.03.1989 passed the
following interim order:

"Issue notice.

Till further orders of this Court,
the operation of the order dated 28.12.1988
passed by respondent no.1 shall remain
stayed."

3. In pursuance of the order dated
28.03.1989 contesting respondents put in
3 All. Ram Naresh & Anr. Vs. Board of Revenue, U.P. & Anr.
1143
appearance through Counsel and filed
counter-affidavit. Petitioner has filed his
rejoinder-affidavit also to the counteraffidavit filed by respondent no. 4.

4.

Counsel
for
the
petitioner
submitted that plot in dispute is ancestral
and placed the following pedigree in order
to demonstrate that plaintiff Ram Naresh
was co-sharer/co-tenant of the plot in
dispute:-

5. Counsel for the petitioner further
submitted that Board of Revenue has
committed manifest error of law in
accepting the case of surrender when all the
courts had held that property is joint and
comes down from a common ancestor and
the case of surrender had been rejected by
this Hon'ble Court. He further submitted
that Second Appellate Court has no
jurisdiction to reappraise the evidence and
interfered with the finding of fact recorded
by First Appellate Court. He further
submitted that First Appellate Court after
considering the evidence on record has
recorded finding of fact that merely
because the petitioner's father started living
in his Sasural his valuable right will not be
extinguished but the Board of Revenue has
erred in holding otherwise. He further
submitted that possession of one co-sharer
is the possession of all over the joint land
as such the finding with respect to
possession could not be interfered with in
second appeal. He further submitted that
the admission of the petitioner was
considered even by this Court while
deciding the writ petition filed by the
petitioner against the order of Board of
Revenue and has held that it did not make
out a case of ouster. He further submitted
that impugned order passed by the Board of
Revenue
is
wholly
illegal,
without
jurisdiction and manifestly erroneous as
such the same is liable to quashed. learned.
Counsel for the petitioner placed reliance
upon the judgment reported in 1966 ALJ
1063 Bechu Vs. Board of Revenue & Ors
1982 RD 217 Jaggu & Anr. Vs. Deputy
Director of Consolidation 2017 (6) ADJ
356 (DB) Ram Briksha & Anr. Vs. Deputy
Director Consolidation and Ors.

6. I have considered the arguments
advanced by learned Counsel for the
petitioner and perused the record.

7. There is no dispute about the fact
that petitioner and respondent no. 4 are CoBhumidhar of the plot in dispute. There is
also no dispute about the fact that suit
under Section 229B of U.P. Z.A. & L.R.
Act filed by the petitioner was dismissed by
the Trial Court but in the first appeal the
decree of the Trial Court was reversed and
plaintiff's suit was decreed. There is also no
dispute about the fact that in second appeal
the Board of Revenue has set aside the
judgment and decree of First Appellate
Court and restored the decree of the Trial
Court. There is also no dispute about the
fact that in writ petition filed by petitioner
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
against the judgment of the Second
Appellate Court, the judgment and decree
of the Second Appellate Court was set
aside and the matter was remanded back
before the Second Appellate Court to
decide the second appeal afresh but the
Second Appellate Court again allowed the
second appeal affirming the judgment of
the Trial Court by which the plaintiff's suit
was dismissed.

8. The plaint allegation as set up in
the suit was that parties are co-sharer as
such the plaintiff is entitled to the cotenancy right in the disputed plot. So far
as the plea of ouster is concerned, there
was no plea regarding that in the written
statement as such Board of Revenue had
no jurisdiction to entertain the plea in
the second appellate jurisdiction and
dismissed the plaintiff's suit. This Court
while allowing the writ petition against
the first order of the Second Appellate
Court has recorded finding that the word
ouster has not been used in the written
statement
nor
such
a
plea
was
specifically
raised
in
the
written
statement.

9. So far as the plea of surrender of
the land in dispute by the plaintiff is
concerned, this plea has already discussed
by the Trial Court while deciding the suit.
Decision of trial court on issue No. 3
relating to plea of surrender as set up by
defendant is relevant for perusal which is as
under:-

"िार्द निन्र्दु संख्या-3"

प्रनतिार्दी की ओर से असल र्दथतिरर्दारी नर्द०
10.1.1912 िनिथता सुिू बहक युद्धर्दीि प्रथतुत की गई है
र्दथतबरर्दारी के हानसये के गिाह रामर्देि डी०डब्लू०3 को िी
प्रनतिार्दी की ओर से प्रथतुत नकया गया है। िार्दी की ओर से केिल
इस र्दथतबरर्दारी का तहरीर करिा अथिीकार नकया है।

इस सम्बन्ि में मैंिे र्दोिों पक्षों के निद्वाि िकीलों के
तका ध्याि पूिाक सुिे हैं। िार्दी के निद्वाि िकील का तका है नक
कनित र्दथतबरर्दारी पूणातयिः फजी है तिा में पढ़िे ि कत्तई माििे
योग्य िहीं है निद्वाि िकील का तका है नक रामर्देि गिाह थियं अपिी
जन्म नतनि 1901 ई० बताता है यनर्द कनित र्दथतबरर्दारी 1912
में नलिी गई िी तो उस समय यह गिाह मात्र 11-12 साल का
रहा होगा। ऐसी नथिनत में यह र्दथतािेज थियं फजी नसद्ध हो जाता है।
निद्वाि िकील का र्दूसरा तका है नक र्दथतबरर्दारी 200 रूपया में
नलिी गयी िी। ि तो उसे रनजथटडा कराया गया िा और ि िह किी
कागजात माल में एक्ट बयाि हुई निद्वाि िकील के ितोिी 1356
फ० जो िार्दी िे प्रथतुत की है की और ध्याि आकनषात करते हुये
कहा है नक यनर्द कनित र्दथतबरर्दारी िाथति में सही होती तो 1356
फ० मैं सुिूाँ असल तिाह काथतकार र्दजा ि होगा।

प्रनतिार्दी के निद्वाि िकील का तका है नक
र्दथतबरर्दारी 30 िषा पुरािा document है इसनलये उसे
evidence में पढ़ा जािा िानहये। निद्वाि िकील िे यह िी तका
नकया है नक िारतीय गिाह प्रायिः अिपढ़ होते हैं अतिः उन्हें सि्
आनर्द का सही ज्ञाि िहीं होता। डी०डब्लू 3 रामर्देि िे जहां अपिा
1901 ई० में होिा बताया है िही अपिी आयु 84 िषा होिा िी
कहा है। उससे थपष्ट है नक उसे अपिी जन्म की सि् सही िहीं मालूम।
निद्वाि िकील िे रनजथरी ि कराये जािे के सम्बन्ि में कोई संतोषप्रर्द
तका िहीं नकया है जहां तक इस र्दथतबरर्दारी के एक्ट अपाि होिे का
सम्बन्ि है प्रनतिार्दी के निद्वाि िकील िे कहा है नक कागजात माल
में लगातार प्रनतिार्दी का यह िाम िला आिा ि तिाह कानिज रहिा
थियं र्दथतबरर्दारी की existence ि उस पर Act upon करिे
की बात नसद्ध करते हैं।

र्दोिों पक्षों के निद्वाि िकीलों को सुििे तिा
सम्बनन्ित साक्ष्य को र्देििे से उपरान्त में यह निष्कषा निकालता ह ाँ
नक कनित र्दथतबरर्दारी technically proved िहीं है ि
apparently act upon की गई है ि evidence में पढ़िे
योग्य है। र्दथतबरर्दारी पर आिाररत प्रनतिार्दीगण का case
technically proved िहीं होता। प्रश्नगत िार्द निन्र्दु इसनलये
िकारात्मक निणीत नकया जाता है।

10. Since the First Appellate Court
has recorded finding of fact while allowing
the appeal of the plaintiff and decreeing the
plaintiff's suit that plaintiff and defendant
are member of the family and possession of
one co-sharer is possession of all, as such
merely by living/residing in the Sasural, the
3 All. Ram Naresh & Anr. Vs. Board of Revenue, U.P. & Anr.
1145
plaintiff will not be deprived of his right in
the plot in dispute, the findings recorded by
the First Appellate Court will be relevant
for perusal, which is as follows:-

"िार्द नबन्र्दु िं० 3 में अिर न्यायालय िे तिकीह
बिाई है नक क्या सुक्िू िे आराजी निजाई में अपिा कुल हक ि
नहथसा बहक पुर्दीि नपता प्रनतिार्दी को र्दथतिरर्दारी कर र्दी िी। इस
िार्द निन्र्दु का िी निणाय अिर न्यायालय िे यह नकया है नक
कनित र्दथतिरर्दारी प्रमानणत िहीं है। यह िार्द निन्र्दु िकारात्मक में
निणाय नकया गया है जब उपरोक्त र्दो तिकीहों पर फैसला िार्दी के
पक्ष में हुआ है तब नफर िार्दी के र्दािा को मन्जूर करिे में अिर
न्यायालय को जो एतराज हुआ है उसको साििािी से र्देििा
पड़ेगा। र्दथतिरर्दारी के र्दथतािेज को अिर न्यायालय िे फजी
होल्ड नकया है र्दथतिरर्दारी 200/- में नलिी गयी िी ऐसा कहा
गया है परन्तु ि तो उसे ररजथटडा कराया गया और ि तो उसका
किी कागजात में इन्राज हुआ। िार्दी के नपता सुक्िू 1356 फ०
तक असल काश्तकार र्दजा हैं। र्दथतिरर्दारी के आिार पर
प्रनतिार्दीगण का केस प्रमानणत िहीं होता। परन्तु अिर न्यायालय
पर इस बात का प्रिाि जरूर पड़ा है नक प्रनतिार्दी असाार्दराज से
तिहा कानिज िला जाता है और िार्दी के र्दािे से तमार्दी िाररज
हो गया है क्योंनक िार्दी के नपता सुक्िू ससुराल िला गया िा
और इस कारण लम्बे असे से उसका आराजी निजाई से कोई
संबंि िहीं रहा। इस कारण प्रनतिार्दी कब्जा मुिानलफािा से तिहा
मानलक हो िुका है और र्दािा टाइमिाडा है। जो महत्िपूणा तिकीह
हैं। उि पर अिर न्यायालय का आर्देश िार्दी के मानफक होिे पर
िी िार्दी के नपता का र्दूसरे गॉि में िला जािा, अपिे ससुराल में
जाकर रहिे लगा इसे बड़ा अपराि मािा गया नक उसके र्दािे में
तमार्दी िाररज हो गयी। जबनक ससुराल नकसी फारेि कन्री में िहीं
है और ि िार्दी के नपता की िागररकता में कोई अन्तर आया है
यह िारत के आंिनलक प्रर्देशों की नपछड़ी हुई जि िाििा का
फल है नक ससुराल को िी परर्देश माि बैठे और ससुराल जािे से
आर्दमी अपिा हक िो बैठता है।

मैं िार्दी के नपता का ससुराल में जाकर रहिे से कोई
ऐसा अिुनित या गैर कािूिी बात िहीं र्देिता नजससे उसका
अनिकार गायब हो जाय और िार्दी का र्दािा कामयाब ि हो सके।
सहकाश्तकारों में जो मोिसी जायर्दार्द होती है उस पर एक का
कब्जा सबका कब्जा मािा जाता है। अतिः रामू का िाम नलऐ जािे से
या उसका कब्जा रहिे से िार्दी के कब्जा पर कोई प्रनतकूल असर
िहीं पड़ता। तथतिरर्दारी की बात गलत सानित हुई है। सि बात तो
यह मालूम होता है नक प्रनतिार्दी िार्दी के िोलेपि का िाजायज
फायर्दा उठा करके उसका हक मारिा िाहता है। अतिः मुझे अिर
न्यायालय का आर्देश गलत मालूम होता है।

उपरोक्त नििेििा के अिुसार में इस अपील को मन्जूर
करता ह ं, अिर न्यायालय का आर्देश रद्द नकया जाता है और िार्दी
प्रनतिार्दीगण के साि सहसीरर्दार घोनषत नकया जाता है। नहथसे का
प्रश्न िारा 229 बी जेड०ए०एण्ड एल०आर० एक्ट के मुकर्दमें में
िहीं उठाया जा सकता। अतिः इस पर निणाय र्देिा आिश्यक िहीं है।

नर्दिांक 14.10.77 (आर०एि०नमश्रा)

 अनतररक्त आयुक्त"

11. The Second Appellate Court has
exercised his second appellate jurisdiction
and allowed the second appeal which has
been mentioned by this Court while
allowing the writ petition No. 9421 of 1978
filed by petitioner vide order dated
25.09.1985, the relevant portion of the
judgment of this Court regarding exercise
of the second appellate jurisdiction is as
follows:-

"The question now arises as to
which court should be directed to give a
fresh decision. The first appellate Court
has decreed the suit. I see no reason as to
why the petitioner should be deprived of the
finding given by the first appellate court in
his favour. I, therefore, consider it
appropriate Court in his favour. I,
therefore, consider it appropriate that the
Board of Revenue should be hear the
appeal and give a fresh decision."

12. The case law cited by learned
counsel for the petitioner in Bechu (supra),
Jaggu (supra) and Ram Briksha (supra),
are relevant for consideration.

13. In Ram Briksha (supra), it has
been held by the Division Bench of this
Court that right of co-sharer will not be
defeated due to non-claiming of partition of
joint share and separate cheque in joint
property during consolidation proceeding
and even the right of co-sharer will not
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
come to an end under Section 49 of the
U.P. Consolidation of Holdings Act.
Paragraph No. 36 to 39 of the judgment
Ram Briksha (supra) will be relevant
which are as follows:-

"36. On these parameters, the
issues that have been raised before us are
being considered and in our considered
opinion rights of the parties in a holding
cannot be permitted to be defeated merely
because they have not at all participated in
consolidation proceedings and as to
whether the bar of Section 49 of U.P.
Consolidation of Holdings Act, 1953 would
be attracted or not would essentially be a
question of fact that can be answered on
the basis of evidence adduced and to the
said bar in question exceptions have to be
carved out wherein suit in question would
be not barred and Section 49 of U.P.
Consolidation of Holdings Act, 1953 would
not come into play where from the series of
documents and circumstances it is reflected
that planned fraud has been made to delete
the plaintiffs name from the revenue
records.
From
the
record
of
the
consolidations, it is clearly reflected that
neither the incumbent, who has proceeded
to get his name recorded nor consolidation
authorities have proceeded to discharge
their duties faithfully in consonance with
the provisions of U.P. Consolidation of
Holdings Act wherein the consolidation
authorities are empowered to ascertain the
share of each owner if there be more
owners than one and in case such an
exercise has not been undertaken, then it
would be a case of legal malice and it
cannot be ipso facto presumed that there
has been ouster from the property in
question and in such a situation an
incumbent, who claims his right in the
property in question has got every right to
regain his property based on title for the
reason that the right has been sought to be
defeated based on fraud and manipulation.

The provisions of Section 49 of
U.P. Consolidation of Holdings Act, 1953
in such backdrop would not at all be
attracted and the suit in question would not
at all be prima facie barred where suit in
question is filed for possession of the suit
property based on property interest. The
reference is answered as follows:

Issue No.I

37. 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 co-sharer was student and had gone
abroad for study and fully depends upon
other co-sharers) 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
3 All. Ram Naresh & Anr. Vs. Board of Revenue, U.P. & Anr.
1147
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

38. 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

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

14. The Apex Court in the case of
Karbalai Begum Vs. Mohd. Sayeed & Anr.
reported in AIR 1981 SC 77 has also
discussed the plea of Section 49 of U.P.
Consolidation of Holdings Act as well as
the right of co-sharer in respect to the joint
property, the Paragraphs No. 12 to 15 of
the judgment rendered in Karbalai Begum
(supra) are as follows:-

"12. The last ground on which the
High Court non-suited the appellant was
that after the chakbandi was completed
under the U.P. Consolidation of Holdings
Act, the suit was barred by s. 49 of the said
Act. It is well settled that unless there is an
express provision barring a suit on the
basis of title, the courts will not easily infer
a bar of suit to establish the title of the
parties. In Subha Singh v. Mahendra Singh
& Ors. this Court made the following
observations:-

"It was thus abundantly clear that
an application for mutation on the basis of
inheritance when the cause of action arose,
after the finalisation and publication of the
scheme under Section 23, is not a matter in
regard to which an application could be
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
filed "under the provisions of this Act"
within the meaning of clause 2 of Section
49. Thus, the other limb of Section 49, also
is not attracted. The result is that the plea
of the bar of the civil courts' jurisdiction to
investigate and adjudicate upon the title to
the land or the sonship of the plaintiff has
no substance."

13. In view of the clear decision
of this Court, referred to above, the High
Court erred in law in holding that the
present suit was barred by s. 49 of the U.P.
Consolidation of Holdings Act.

14. Thus, the grounds on which
the High Court reversed the decision of the
District Judge are not sustainable in law
and the judgment of the High Court cannot
be allowed to stand.

15. We, therefore, allow the
appeal with costs throughout, set aside the
judgment of the High Court, decree the
plaintiff's suit for joint possession as far as
plots Nos. 201 and 274 are concerned and
restore the judgment of the District Judge.
The cost allowed by this Court would be
set- off against the sum of Rs. 15,000/-
(fifteen thousand only) deposited by the
respondents in the High Court and paid to
the appellant and the balance may be
refunded to the respondents."

15. On the point of exercise of Second
Appellate Court jurisdiction, this Court in
the case reported in 1985 RD 93 Sharda
Devi Vs. Board of Revenue U.P. & Ors.
has held that Second Appellate jurisdiction
shall not be exercised to set aside the
finding of fact recorded by courts below on
the basis of evidence however grossly
erroneous they may appear. Paragraph No.
17 & 24 of the judgment are relevant which
are as follows:-

"17. There is a string of decisions
i.e. Afsar Sheikh v. Sulemanbibi [(1976) 2
SCC 142 : A.I.R. 1976 S.C. 163.] , Ladhi
Prasad v. Karnal Distillery Co. Ltd. [A.I.R.
1963 S.C. 1279.] , Mst. Rajraniv. Rajaram
[A.I.R. 1980 All. 2020.] , and Kharbuja
Kuer v. Jang Bahadur [A.I.R. 1963 S.C.
1203.] , and on the basis of ratio of these
cases it is clear that finding that no fraud
or collusion was proved by Respondent
Nos. 2 to 6 are findings of fact and the
Board of Revenue has exceeded its
jurisdiction under Section 100 C.P.C. to set
aside these findings of fact. In view of the
provisions of Section 331(4) of the Act
second appeal would lie only on the
question of law and not on the question of
fact, hence Board of Revenue has clearly
committed an error apparent on the face of
record in setting aside the findings of fact
recorded by first appellate Court and the
trial Court about fraudulent nature of
transaction. Further just on suspicion it
cannot be assumed nor findings of fact can
be set aside but the Board of Revenue has
held that "there appears to be some
suspicion that after the decree in suit under
Section 176 of the Act why should
successful party enter into compromise,
surrender the rights in suit under Section
229-B of the Act, but the trial could not
judge the evidence of the parties. But if the
convenience of parties lay in entering into
compromise
subsequently,
Board
of
Revenue should not stand in the way." It is
well known that bad compromise is better
than a good law suit. In case the vendees
have entered into compromise admitting
claim of petitioner hence they had do rights
in the plots to execute the sale deed in
favour of respondent Nos. 2 to 6.

24. In view of the discussion
hereinbefore, I am of the view that the
Board of Revenue has clearly exceeded
3 All. Ram Naresh & Anr. Vs. Board of Revenue, U.P. & Anr.
1149
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 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."

16. It is material that plot in dispute is
ancestral one and acquired by common
ancestor Sahai Kurmi. It is also material
that plaintiff and defendant are co-sharer,
the plea of surrender set up by the
defendant has not been proved as such the
plaintiff is entitled to the decree of 1⁄2
share in the plot as held by first Appellate
Court vide judgment and decree dated
14.10.1977 as well as in view of ratio of
law laid down by Apex Court in Karbalai
Begum (supra) and this Court in Ram
Briksha (supra). So for as scope of suit
under Section 229B of U.P.Z.A. and L.R.
Act is concerned as well as limitation for
filing suit under Section 229B of 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 U.P. at
Allahabad & Ors. has held that there is no
limitation for filing suit under Section
229B of U.P.Z.A. & L.R. Act, the
Paragraph No. 6 of the judgment is
relevant which is as follows:-

"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 other
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
excepted. 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
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
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 lostpossession the bhumidari right would
extinguish when the right to recover
possession is lost. In Ram Naresh v. Board
of Revenue 1985 Rev Dec. 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 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 129
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."

17. Considering the entire facts and
circumstances, as well as ratio of law laid down
by this Court as well as by Apex Court, the
judgment passed by Board of Revenue dated
28.12.1988 allowing the second appeal of
contesting respondent and dismissing the
plaintiff's suit for co-tenancy right for 1⁄2 share,
cannot be sustained in the eye of law, accordingly,
impugned judgment dated 28.12.1988 passed by
Board of Revenue, Allahabad (Annexure 5 to the
writ petition) is liable to be set aside and the same
is hereby set aside.

18. The writ petition stands allowed.

19. The judgment of the First
Appellate Court dated 14.10.1977 passed
by
Additinal
Commissioner,
Varanasi
Division, Varanasi is hereby affirmed.

20. No order as to costs.
----------
(2023) 3 ILRA 1150
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2021

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ-C No.9400 of 2021

Smt. Nahida Fatima @ Naheed Fatima
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents