# Shyam Lal & Ors v. State of U.P. & Ors

- **Citation:** (2025) 1 ILRA 566
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-28
- **Case number:** Writ - C No. 1000717 of 1997
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-lal-ors-v-state-of-u-p-ors-54514
- **Pages:** 5

## Headnote

Civil Law - The U.P. Tenancy Act, 1939 -
Sections 59 & 275 - U.P Consolidation of
Holdings Act, 1953 - Section 49 - Land
was recorded in name of father of
petitioner Nos.1 and 2 in 1366 fasli
settlement year - Survey made in 1964 -
65 of notified area, where plots are
situated and petitioners father name
found to be recorded - Plots are nonzamindari abolition land and on 7th July,
1949 , plots included in notified area
under provisions of United Provinces
Municipalities Act, 1916 and provisions of
U.P. Zamindari Abolition & Land Reforms
1 All. Shyam Lal & Ors. Vs. State of U.P. & Ors.
567
Act not made applicable - Proved by
Khasra and settlement of khatauni. (Para
4, 6)

Respondent
No.5
interfered
with
possession of petitioners by alleging he
was owner of land, petitioners filed suit,
claimed their title - Respondent contended
that land was his self acquired property
and in possession prior to zamindari
abolition and few plots fall within scope of
U.P. Zamindari Abolition & Land Reforms
Act - Further admitted only one plot was
beyond
purview
of
said
Act
and
consolidation held in 1973 and suit barred
by provisions of Consolidation of Holdings
Act and not maintainable. (Para 8)

Petitioner
filed
interim
injunction
application, Sub Divisional Officer granted,
maintaining status quo and order was not
vacated
after
hearing
stay
vacation
application. (Para 9)

The Sub Divisional Officer after hearing
preliminary
issues
and
preliminary
objections with respect to maintainability
of suit, concluded suit was maintainable
and decided in favour of petitioners -
Respondent preferred Revision before
Additional Commissioner (Judicial) and
reference made to Board of Revenue,
allowed - Impugned order. (Para 10)

Held, on perusal of last column of khasra,
it has been incorporated that land and
gata numbers does not come under ambit
of
U.P.
Zamindari
Abolition
&
Land
Reforms Act - Documents were before
Board of Revenue but not considered -
Due to non-consideration of documents
and case of Nagar Palika, order was
devoid of merit and liable to be set aside.
(Para 15, 16)

Writ petition allowed. (E-13)

## Text

566 INDIAN LAW REPORTS ALLAHABAD SERIES
documents produced by the petitioner or
the department have been taken into
consideration.
Only
the
previous
allegations have been taken to have been
proved and the same has been reiterated
which cannot be the scope of the remand
order passed by the Supreme Court as such
the order of the Sub-Divisional Magistrate
concerned is not sustainable in the eyes of
law. Similarly, the appellate authority has
passed the order dated 13.9.2018 in a very
cursory manner without recording any
finding with regard to the arguments raised
by the petitioner against the order dated
24.1.2018. The duty of the Appellate
Authority is to examine the issue and to see
whether the grounds raised in the appeal
can be sustained to dislodge the order
passed by the original authority. In the
present case, no such exercise has been
made as is admitted by learned Standing
Counsel as well as learned counsel for
respondent no.6.

14. Since the order of the Supreme
Court has not been complied with by the
Sub-Divisional Magistrate concerned and
the appellate authority has also not decided
the issued in the proper perspective, the
order dated 24.1.2018 passed by the SubDivisional Magistrate concerned and the
order of the Appellate Authority dated
13.9.2018 are hereby set aside. The writ
petition is allowed and the matter is
remanded back to the respondent no.3-SubDivisional Magistrate, Lalganj, Pratapgarh
for taking decision afresh in light of the
order
of
the
Supreme
Court
dated
4.12.2017. The Sub-Divisional Magistrate
concerned while deciding the matter afresh
shall not look into any of the findings
recorded on the previous occasion and shall
take up the matter afresh and the
arguments which have been advanced by
the parties shall be considered.

15. Since the order after the remand of
the Supreme Court are set aside, the
position as existing in pursuance to the
order
of
the
Supreme
Court
dated
4.12.2017 is hereby restored. The SubDivisional Magistrate concerned is directed
to decide the matter afresh within a period
of three months from the date of production
of a certified copy of this order after giving
opportunity of hearing to all the parties
concerned.
----------
(2025) 1 ILRA 566
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.01.2025

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ - C No. 1000717 of 1997

Shyam Lal & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Shyam Mohan

Counsel for the Respondents:
C.S.C., Anoop Kumar Srivastava, H.P.
Srivastav, Surya Prakash Singh, Surya
Prakash Singh

Civil Law - The U.P. Tenancy Act, 1939 -
Sections 59 & 275 - U.P Consolidation of
Holdings Act, 1953 - Section 49 - Land
was recorded in name of father of
petitioner Nos.1 and 2 in 1366 fasli
settlement year - Survey made in 1964 -
65 of notified area, where plots are
situated and petitioners father name
found to be recorded - Plots are nonzamindari abolition land and on 7th July,
1949 , plots included in notified area
under provisions of United Provinces
Municipalities Act, 1916 and provisions of
U.P. Zamindari Abolition & Land Reforms
1 All. Shyam Lal & Ors. Vs. State of U.P. & Ors.
567
Act not made applicable - Proved by
Khasra and settlement of khatauni. (Para
4, 6)

Respondent
No.5
interfered
with
possession of petitioners by alleging he
was owner of land, petitioners filed suit,
claimed their title - Respondent contended
that land was his self acquired property
and in possession prior to zamindari
abolition and few plots fall within scope of
U.P. Zamindari Abolition & Land Reforms
Act - Further admitted only one plot was
beyond
purview
of
said
Act
and
consolidation held in 1973 and suit barred
by provisions of Consolidation of Holdings
Act and not maintainable. (Para 8)

Petitioner
filed
interim
injunction
application, Sub Divisional Officer granted,
maintaining status quo and order was not
vacated
after
hearing
stay
vacation
application. (Para 9)

The Sub Divisional Officer after hearing
preliminary
issues
and
preliminary
objections with respect to maintainability
of suit, concluded suit was maintainable
and decided in favour of petitioners -
Respondent preferred Revision before
Additional Commissioner (Judicial) and
reference made to Board of Revenue,
allowed - Impugned order. (Para 10)

Held, on perusal of last column of khasra,
it has been incorporated that land and
gata numbers does not come under ambit
of
U.P.
Zamindari
Abolition
&
Land
Reforms Act - Documents were before
Board of Revenue but not considered -
Due to non-consideration of documents
and case of Nagar Palika, order was
devoid of merit and liable to be set aside.
(Para 15, 16)

Writ petition allowed. (E-13)

(Delivered by Hon'ble Irshad Ali, J.)

1.Supplementary affidavit filed today
in Court is taken on record.

2. Heard Sri Shyam Mohan, learned
counsel for the petitioners, Sri Shatrughan
Chaudhary,
learned
Additional
Chief
Standing Counsel for respondent Nos.1,3
and 4, Sri S.P. Singh, learned counsel for
respondent No.2 and Sri Anoop Kumar,
learned counsel for respondent No.5.

3. By means of the present writ
petition, the petitioners are challenging an
order dated 7.10.1996, passed by the Board
of Revenue and Reference No.4 of 1995-96
dated 3.8.1995, passed by the Additional
Commissioner
(Judicial),
Faizabad
Division Faizabad (Ayodhya).

4. Brief facts of the case are that
old
plot
Nos.
3453/0.037,
347/0.07,
3458/0.08,
3459/0.02,
3460/0.08,
3461/0.10 of Mauza Nanpara Khas, Nagar
Palika Nanpara, District Bahraich were
numbered
as
6939/0.085,6940/0.080,
6941/0.320, 6942/0.125, 6943/0.020 and
6944/0.113 were recorded in the name of
Lalta Prasad, father of petitioner Nos.1 and
2 in 1356 fasli settlement year duration of
20 years.

5. Earlier the land was recorded in the
name of Ram Autar, the father of Lalta
Prasad in 1336 fasli and after Ram Autar
the same was recorded in the name of the
father of petitioner Nos. and 2 namely Lalta
Prasad, resident of Mohalla Kayastha Tola,
Nanpara,
District
Bahraich
and
the
settlement was made in 1366 fasli year and
in the said settlement year in khasra the
name of the father of petitioner Nos.1 and 2
namely Lalta Prasad was recorded. In
regard to this, the petitioners have annexed
copy of the settlement khasra of 1366 fasli
and khatauni mohal of 1366 fasli, wherein
it was recorded that provision of U.P.
Zamindari Abolition & Land Reforms Act
is not applicable.
568 INDIAN LAW REPORTS ALLAHABAD SERIES

6. A survey was made in 1964-65 of
the notified area, Nanpara where the plots
in question are situated and name of the
father of the petitioners was found to be
recorded. Copy of the khatauni of the
notified
area
has
been
annexed
as
Annexure-2. The above said plots in
question are non zamidari abolition land
and were situated within the notified area
Nanpara and on and on 7th day of July,
1949 the said plots were included in the
notified area Nanpara under the provisions
of the United Provinces Municipalities Act,
1916 and as such the provisions of U.P.
Zamindari Abolition & Land Reforms Act
was not made applicable and the said plots
in question remained as a non-zamindari
abolition area. The said fact is evident from
the khasra and settlement of khatauni of
1366 fasli proving that the plots in question
are non-zamindari abolition area and
provisions of U.P. Zamindari Abolition &
Land Reforms Act are not applicable.

7. After the death of the father of
petitioner Nos.1 and 2 namely Lalta Prasad,
the petitioner Nos.1 and 2 and Jwala
Prasad, father of petitioner No.3 inherited
the property being sons of Lalta Prasad.
After the death of Jwala Prasad, the
petitioner No.3 being son of Jwala Prasad
became
the
owner
of
the
property
alongwith the petitioner Nos.1 and 2 and all
of
them
remained
in
physical
and
cultivatory possession.

8. In January, 1992, the respondent
No.5 tried to interfere with the possession
of the petitioners on the allegations that he
was the owner of the land and therefore, the
petitioners filed a suit under Section 59 of
the U.P. Tenancy Act alleging therein the
above noted facts of their title and sought
the relief of declaration of their ownership..
The
respondent
No.5
filed
written
statement in which he had stated that the
land in question was his self acquired
property and that he was in possession
since the time of prior to zamindari
abolition and the plot Nos. 6930, 6940,
6941, 6942 and 6943 fall within the ambit
and scope of U.P. Zamindari Abolition &
Land Reforms Act. The respondent No.5
admitted that only one plot No.6944 was
beyond the purview of U.P. Zamindari
Abolition & Land Reforms Act and the
consolidation held of plot in question in
1973 and as such the suit was barred by the
provisions of Section 49 of Consolidation
of Holdings Act and was not maintainable.

9. The petitioner filed an application
for interim injunction for restraining the
respondent No.5 from interfering with the
possession and the Sub Divisional Officer,
Nanpara granted an interim injunction on
24.4.1992, maintaining the status quo and
the said order was not vacated after hearing
the stay vacation application.

10. Issues were framed and the issue
Nos.3, 4, 10, 12, 16, 18, 20 and 22 were
declared as preliminary issues and were
decided as preliminary issues pertaining to
the maintainability of the suit. The Sub
Divisional Officer, Nanpara after hearing
the preliminary issues and preliminary
objections raised by the respondent No.5
with respect to the maintainability of the
suit after considering the documents came
to the conclusion that the suit was
maintainable and decided the preliminary
issues in favour of the petitioners vide his
order dated 23.11.1992 and fixed date for
evidence of the plaintiffs/ petitioners on
18.12.1992. Against the said interlocutory
order, the respondent No.5 preferred
Revision No.1061 under Section 275 of
U.P. Tenancy Act before the Additional
Commissioner
(Judicial),
Faizabad
1 All. Shyam Lal & Ors. Vs. State of U.P. & Ors.
569
Division Faizabad (Ayodhya) and the
Additional Commissioner was of the view
that from a perusal of C.H. forms No.41
and 45, it appeared to him five plots out of
six plots of which the consolidation took
place and zamindari has been abolished
with respect to five plots and the suit has
been filed on 16.1.1992 relevant year 1399
fasli as such the suit was not maintainable
and referred the matter by making a
reference to the Board of Revenue at
Allahabad vide order dated 3.8.1995. The
Board of Revenue vide order dated
7.10.1995 agreed with the said reference.

11. Feeling aggrieved by allowing the
reference, submission of learned counsel
for the petitioners is that documents were
before the Board of Revenue in the shape
of Annexures-1 and 2 to the writ petition,
which were not taken into consideration. It
is submitted that provision of U.P.
Zamindari Abolition & Land Reforms Act
is not applicable. It is also submitted that
the land in dispute is notified in the notified
area Nanpara, therefore, the provisions of
U.P. Zamindari Abolition & Land Reforms
Act are not applicable. The Board of
Revenue while considering the matter, has
not taken into consideration, all these
material facts while deciding the reference
made by the Additional Commissioner.

12. A short counter affidavit has
been field by respondent No.2, stating
therein that the land in dispute has been
notified under the United Provinces
Municipalities Act, 1916 and it has been
stated that on perusal of the nakal
khatauni of the non-zamindari abolition
lands, situated within the limits of Nagar
Palika Nanpara, Bahraich, are excluded
from the zamindari abolition. He has also
enclosed copy of the nakal khatauni as
Annexure SCA-4

13. Sri Anoop Kumar, learned counsel
for the respondent No.5 submits that the
land in dispute comes under the U.P.
Zamindari Abolition & Land Reforms Act,
therefore, the impugned order passed by the
Board of Revenue does not suffer from any
infirmity or illegality and is a just and valid
order. He invited attention in reply to the
contents of paragraph 13 of the short
counter affidavit, reply to the same was
filed denying the contents of the affidavit
filed by the respondent No.2.

14. After having heard the rival
submission of learned counsel for the
parties, I perused the material on record.

15. On perusal of Annexure-1 to the
writ petition, it is evident that the last
column of the khasra of 1366 fasli, it has
been incorporated that the land in dispute
does not come under the ambit of U.P.
Zamindari Abolition & Land Reforms Act.
Annexure-2 of the writ petition also reveals
that the gata numbers referred hereinabove
does not come under the ambit of U.P.
Zamindari Abolition & Land Reforms Act.
All these materials were before the Board
of Revenue in the shape of record referred
by the Additional Commissioner, Faizabad
Division
Faizabad
but
none
of
the
documents were taken into consideration
while passing the order in reference.

16. Due to non consideration of all
these documents and the case of Nagar
Palika, the order is devoid of merit and is
liable to be set aside. In paragraph-13 of the
counter affidavit filed by the Nagar Palika,
it is evident that the land in question is
recorded in non-zamindari abolition Act,
therefore, non consideration of this aspect
of the matter suffers the impugned order
from infirmity and illegality passed by the
Board of Revenue.
570 INDIAN LAW REPORTS ALLAHABAD SERIES

17. I have considered the submission
advanced by learned counsel for the
parties at length and I am of the opinion
that the Board of Revenue has committed
manifest error of law in passing the
impugned order. The Board of Revenue
has not taken care of the record placed
before it while making reference by the
Additional
Commissioner,
Faizabad
Division
Faizabad,
therefore,
the
impugned order is hereby set aside.

18. The writ petition succeeds and is
allowed.

19. The Board of Revenue is directed
to pass a fresh order after going through the
documents laid before it alongwith the
record in reference within a period of four
months from the date of production of a
certified copy of the order.

20. It is however made clear that the
record of the trial court, if not before the
Board of Revenue, it shall be summoned
from the trial court for perusal of the
record.
----------
(2025) 1 ILRA 570
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.01.2025

BEFORE

THE HON'BLE MANOJ BAJAJ, J.

Application U/S 482 No. 418 of 2008

Smt. Rekha & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicants:
Tung Nath Tewari, Ravindra Bajpai

Counsel for the Respondents:
Govt. Advocate, R.C. Gupta, S. Misra

(A)
Criminal
Law
-
Summoning
of
Additional Accused - Indian Penal Code,
1860 - Sections 147, 302 & 406 - Code of
Criminal Procedure, 1973 - Section 319 -
Power to proceed against other persons
appearing to be guilty of offence - Degree
of satisfaction required for invoking the
power
under
Section
319
Cr.P.C.
-
discretionary and an extraordinary power
- to be exercised sparingly and only in
those cases where the circumstances of
the case so warrant - not to be exercised
because the Magistrate or the Sessions
Judge is of the opinion that some other
person may also be guilty of committing
that offence - Only where strong and
cogent evidence occurs against a person
from the evidence led before the court
that such power should be exercised and
not in a casual and cavalier manner. (Para
-12,14,15)
(B) Criminal Law - Code of Criminal
Procedure, 1973 - Section 319 - Process
under Section 319 Cr.P.C. cannot be
issued by the trial court in a casual
manner - Court has to consider substance
of the evidence, which has come before it
- Test to apply - "more than prima facie
case as exercised at the time of framing of
charge, but short of satisfaction to an
extent
that
the
evidence,
if
goes
unrebutted, would lead to conviction."
(Para - 14)
Applicants aggrieved by impugned order - trial
court summoned them as additional accused
under Section 319 Cr.P.C. - case arose from an
FIR registered on the complaint PW-1 - alleging
that his son was administered poison on
14.07.2000, leading to his death - initially
applicants were declared innocent - based on
testimony of prosecution witnesses during trial -
an application under Section 319 Cr.P.C. was
filed - leading to impugned order summoning
applicants - hence this application.(Para - 1 to
5)
HELD: - Trial court erred in summoning the
applicants as additional accused without strong
and cogent evidence. Impugned order suffers
from grave illegality and impropriety and
warrants
interference
by
Court.
Petition
succeeds.

Impugned
order
set
aside.