# Saurang v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1525
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-10
- **Case number:** Civil Misc. Writ Petition No.56738 of 2013
- **Bench:** A.P.Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saurang-v-state-of-u-p-and-ors-42738
- **Pages:** 3

## Headnote

C.S.C.,
Sri
S.C.
Verma,
Sri
R.C.
Upadhyaya,Sri Ajay K. Singh, Sri A.N.
Pandey, Nilam Pandey

Constitution of India-Art.-226-Declaration
of title under provisions 122-B(4F) of
U.P.Z.A.L.R.
Act-made
in
favour
of
respondent-petitioner being real brother of
respondent-putting same claim along with
them-filed application for restoration of
proceeding-allowed by SDO-revisional court
taken view that after 11 years can not be
re-opened-but
instead
of
remand
for
consideration of latches touch the merit of
case-held such order without jurisdiction-at
the same time declaration can be sought on
establishment of fact of possession-order
passed
by commissioner quashed-with
liberty to file suit for declaration of his right
petition partly allowed.

Held: Para-11
However, in the present case, it appears
that the petitioner is claiming rights
which is in the nature of a cotenancy on
the
ground
that
he
was
also
in
possession alongwith his brothers. This
becomes a disputed question of fact
which has to be established by leading
evidence, and in the circumstances, this
could not have been done by the method
of a restoration application. However,
the petitioner has a right to establish his
possession by way of filing a suit.

## Text

3 All] Saurang Vs. State of U.P. and Ors.
1525

20. In absence of challenge to the
seniority list as also for non impleadment
of necessary party, no relief, as sought in
the writ petition, can be granted.

21. Dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.10.2013

BEFORE
THE HON'BLE A.P.SAHI, J.

Civil Misc. Writ Petition No.56738 of 2013

Saurang ..Petitioner
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajiv Kumar Mishra

Counsel for the Respondents:
C.S.C.,
Sri
S.C.
Verma,
Sri
R.C.
Upadhyaya,Sri Ajay K. Singh, Sri A.N.
Pandey, Nilam Pandey

Constitution of India-Art.-226-Declaration
of title under provisions 122-B(4F) of
U.P.Z.A.L.R.
Act-made
in
favour
of
respondent-petitioner being real brother of
respondent-putting same claim along with
them-filed application for restoration of
proceeding-allowed by SDO-revisional court
taken view that after 11 years can not be
re-opened-but
instead
of
remand
for
consideration of latches touch the merit of
case-held such order without jurisdiction-at
the same time declaration can be sought on
establishment of fact of possession-order
passed
by commissioner quashed-with
liberty to file suit for declaration of his right
petition partly allowed.

Held: Para-11
However, in the present case, it appears
that the petitioner is claiming rights
which is in the nature of a cotenancy on
the
ground
that
he
was
also
in
possession alongwith his brothers. This
becomes a disputed question of fact
which has to be established by leading
evidence, and in the circumstances, this
could not have been done by the method
of a restoration application. However,
the petitioner has a right to establish his
possession by way of filing a suit.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard learned counsel for the
petitioner, Rajiv Kumar Mishra, Sri R.C.
Upadhyay for the Gaon Sabha and the
learned
Standing
Counsel
for
the
respondent nos. 1, 2 and 3. Sri S.C.
Verma for the respondent no. 4 and Sri
Ajay Kumar Singh for the respondent no.
5 and 6 have also been heard.

2. This is an unfortunate dispute
between the real brothers who claim to be
in possession over the disputed land but
the benefits of the possession over the
land have been acknowledged only in
favour of the contesting respondents
hence one of the brothers is aggrieved and
is before this Court under Article 226 of
the Constitution of India praying for
setting
aside
the
revisional
order
impugned
herein
dated
11.9.2013
whereby his claim has been reversed.

3. The facts in brief are that
undisputedly the petitioner and the
respondent no. 4 to 6 are the sons of the
same father. The disputed holding was
being claimed to be in occupation by the
contesting respondents no. 4 and 5 and
subsequently they filed an application for
acknowledging their rights in terms of
Section 122-B(4F) of the U.P. Z.A. &
L.R. Act, 1950. The said claim appears to
have been acknowledged in favour of the
respondent nos. 4 and 5 only vide order
dated 17.6.1995.
1526 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The petitioner contends that this
order was obtained surreptitiously by their
real brothers without informing him and
therefore an application for restoring the
proceedings in January, 2006 was filed by
the petitioner with a prayer that the order
should be modified by recording the name
of the petitioner as well alongwith his
brothers. On this proceeding a report was
called for and the Sub-Divisional Officer
proceeded to pass orders on 30th May,
2008,
accepting
the
claim
of
the
petitioner.

5. The opposite parties aggrieved by
the said order filed a revision and the learned
Additional Commissioner has set aside the
order on two grounds, namely, that the
proceedings for getting his name recorded
and for restoring the matter was time barred
having been filed after 11 years of the
passing of the order and secondly such a
claim on merits also was not admissible.

6. Sri Mishra, learned counsel for
the petitioner submits, that if the learned
Commissioner was of the opinion that
delay ought to have been condoned
separately before proceeding on merits,
then the case should have been remanded
for consideration on the issue of delay,
and no finding should have been recorded
on the merits of the claim of the
petitioner. He further contends that even
otherwise on merits, the reports in favour
of the petitioner do indicate that he was
also in possession and therefore was
entitled to the benefit of Section 122B(4F) of the 1950 Act. He has further
relied on the apex court decision in the
case of Manorey @ Manohar Vs. Board
of Revenue (U.P.) and others reported in
2003 (94) RD 538 to urge that such rights
are available by operation of law and do
not require any declaration by filing a suit
once the possession is established. He
therefore submits that the impugned order
deserves to be set aside and the claim of
the petitioner deserves to be upheld.

7. On the issue of knowledge,
learned counsel has further submitted that
the proceedings that had terminated in
favour of the respondents in 1995 were
without any opportunity to the petitioner.

8. Sri S.C. Verma and Sri Ajay Kumar
Singh for the contesting respondents urge
that the petitioner had full and complete
knowledge of the said order and the
recording of the names of the answering
respondents in the relevant revenue records
but he did not raise any objection and after
11 years the petitioner filed the application
which was not maintainable, inasmuch as,
the proceedings that culminated in 1995 were
on the strength of an administrative order and
as such a restoration was not maintainable.
He further submits that limitation was also
staring on the face of the petitioner which
was not explained on day to day basis and
therefore even otherwise the restoration
application has been rightly rejected by the
revisional court. He further submits that in
the event the petitioner is seeking any
declaration of his rights interse as against the
answering respondents then the remedy of
the petitioner is to file a suit.

9. All the learned counsel for the
respondents submit that they do not
propose to file any counter affidavit and
the matter be disposed of finally at this
stage as the facts on the basis whereof the
submissions have been raised are already
contained in the impugned order.

10. Having heard learned Standing
Counsel and Sri Upadhya for the Gaon
Sabha what appears is that the benefit of
3 All] Ishaq Khan & Ors. Vs. State of U.P. and Ors.
1527
Section 122-B (4F) was acknowledged in
favour of the respondent nos. 4 and 5 only
under an order of the Sub-Divisional
Officer dated 17.6.1995. This order can
be termed to be administrative in nature if
it does not adjudicate any dispute or
controversy and is founded on the basis of
possession which is not disputed by the
State. It is in these circumstances that the
apex court in the case of Manore (supra)
observed that filing of a suit was not
necessary.

11. However, in the present case, it
appears that the petitioner is claiming
rights which is in the nature of a
cotenancy on the ground that he was also
in possession alongwith his brothers. This
becomes a disputed question of fact which
has to be established by leading evidence,
and in the circumstances, this could not
have been done by the method of a
restoration application. However, the
petitioner has a right to establish his
possession by way of filing a suit.

12. Learned Commissioner while
reversing the order of the Sub-Divisional
Officer has made observations on the
merits of the claim of the petitioner which
can adversely affect him in the event the
petitioner files a suit. This is because the
said revision has been filed by the
respondents under Section 333 of U.P.
Z.A. & L.R. Act, 1950 and any finding
made by the Commissioner shall become
binding on a subordinate authority if a
suit is tried by the Sub-Divisional Officer
or by any such court of competent
jurisdiction. In the circumstances, the
Additional Commissioner fell in error by
proceeding to record findings on merits
when he had refused to accept the
explanation for delay given by the
petitioner in moving the restoration
application. To that extent, Sri Rajiv
Kumar Mishra is correct in his submission
that the learned Commissioner has
exceeded in his jurisdiction.

13. Sri S.C. Verma, learned counsel
for the respondent has been unable to
dispute the aforesaid proposition to the
aforesaid extent and therefore this writ
petition is partly allowed setting aside the
order dated 11.9.2013 in so far as it seeks
to declare the rights of the petitioner as
against the claim of the respondent nos. 4
and 5.

14. The petitioner shall now be at
liberty to file a suit and seek his
declaration against the respondent nos. 4
and 5, if he is able to establish his
possession alongwith them.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No. 57762 of 2013

Ishaq Khan & Ors.
 ...Petitioners
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Ram Jee Saxena, Sri Raghuvansh
chandra

Counsel for the Respondents:
C.S.C., Sri Anuj Kumar

Constitution of India, Art.-226- Appealagainst the order passed under order 9
Rule 13 C.P.C.-Appeal by such person not
party suit for partition and declarationsubmission
that
appeal
itself
not
maintainable as applicant was not partyheld-misconceived-any aggrieved person