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Allahbad High Court
H.N.SETH
Qabool Singh - Appellant
Versus
Board of Revenue - Respondent
Decided On : 04/05/1972
LAND REFORMS - U. P. Z. A. AND L. R. ACT, 1950 - SECTION 229-B - SUIT FOR DECLARATION OF TITLE - POSSESSION - NECESSITY TO DETERMINE - ADVERSE POSSESSION - EFFECT.
Fact of the Case:
Plaintiffs filed a suit under Section 229-B of the U. P. Z. A. and L. R. Act, claiming co-bhumidhari and co-sirdari rights in certain plots. Defendant No. 3 contested the suit, claiming exclusive possession and title by adverse possession. The trial court and the Additional Commissioner decreed the suit, holding that there was a family settlement between the parties and that the plaintiffs were in possession. The Board of Revenue upheld the lower courts' findings.
Finding of the Court:
The High Court held that the revenue courts erred in not going into the question of possession and whether the defendant had acquired title by adverse possession. The court held that a suit for declaration of title under Section 229-B of the U. P. Z. A. and L. R. Act is maintainable even if the plaintiff is out of possession, but the court must determine whether the plaintiff has lost title by adverse possession before granting a declaration.
Issues: 1. Whether the revenue courts erred in not going into the question of possession and whether the defendant had acquired title by adverse possession. 2. Whether a suit for declaration of title under Section 229-B of the U. P. Z. A. and L. R. Act is maintainable even if the plaintiff is out of possession.
Ratio Decidendi: 1. The court held that it was necessary for the revenue courts to have gone into the question of possession and whether the defendant had been in possession over the plots in dispute and whether he matured his title to them by adverse possession as claimed by him. The case could not have been decided without going into and recording a finding on this disputed question of fact. 2. The court held that a suit for declaration of title under Section 229-B of the U. P. Z. A. and L. R. Act is maintainable even if the plaintiff is out of possession, but the court must determine whether the plaintiff has lost title by adverse possession before granting a declaration.
Final Decision: The High Court quashed the order of the Board of Revenue and remanded the case for a fresh decision after determining the question of possession and adverse possession.
Key Points: - The court held that revenue courts must determine possession and whether the defendant matured title by adverse possession before granting a declaration under Section 229-B (!) (!) . - A suit for declaration of title under Section 229-B is maintainable even if the plaintiff is out of possession, but must assess whether the plaintiff has lost title by adverse possession (!) (!) . - The decision remanded for fresh determination on possession and adverse possession; quashed Board of Revenue order (!) (!) . - The family settlement between parties, even if oral and not registered, can bind the parties and support possession rights under the settlement (!) (!) . - The Board of Revenue incorrectly asserted concurrent possession findings; the court found it necessary to record which party possessed and for how long (!) (!) . - The court rejected the argument that failure to register the family settlement voids the rights conferred by the settlement for purposes of a Section 229-B declaration (!) . - The decision references that Section 42 of the Specific Relief Act does not bar a declaration where possession is not claimed, but loss of rights post-suit may affect entitlement; thus possession is essential to determine a declaration (!) (!) . - The final order allowed petition; directed disposal of the second appeal in accordance with law; costs to parties (!) .
In order to appreciate the controversy raised in this petition it would be convenient to state a short pedigree, which is admitted by the parties concerned.
Plaintiffs Subhash, Bimla and Kranti brought a suit under Section 229-B of the U. P. Z. A. and L. R. Act. claiming co-bhumidhari rights in respect of khata No. 197 and co-sirdari rights in Khata No. 355. It was claimed that the two plots were the holdings of Prithi Singh who died before the enforcement of the U. P. Z. A. and L. R. Act. On his death, his widow Smt. Vidyawati inherited these plots and became bhumidhar of Khata No. 197 and sirdar of Khata No. 355. During the consolidation operations, three different chaks were prepared. One Chak was allotted to Smt. Vidyawati, Qabool Singh, the petitioner got another Chak whereas defendants Nos. 4 to 6 were allotted the third chak. Smt. Vidyawati died about six years back, leaving behind three daughters namely, Smt. Bimla, Smt. Kranti and Smt. Shiksha (mother of plaintiff No. 1). After the death of Smt. Vidyawati a litigation, in connection with the mutation of names in her place, took place between the three plaintiffs and defendants Nos. 3 to 6. in which the parties compromised and entered into a family settlement. Information about this was given to the consolidation authorities, by moving an application dated April 22, 1960. The Consolidation Authorities, thereupon, made orders in accordance with the family settlement. According to that settlement plaintiff's share came to 5 Bighas 2 Biswas and 10 Biswansis in area. Necessary entries in accordance with the family settlement were made in the revenue papers but due to oversight the family settlement was not given effect to in C. H. Form Nos. 41 and 45. However, the plaintiffs claimed that they had been in possession over the plots as per family settlement which is binding on the parties. After the death of Smt. Shiksha, mother of plaintiff No. 1, proceedings for mutation of names in her place were again taken. Defendants 3 to 6 contested the same and plaintiffs name was not brought on the record. Accordingly the present suit was filed claiming a declaration about plaintiffs' bhumidhari and sirdari rights.
2. The suit was contested by Qabool Singh, defendant No. 3. But defendant No. 4 filed a written statement admitting the plaintiff's case. Qabool Singh claimed that on the death of Smt. Vidyawati he alone succeeded to her interest under Section 172 of the U. P. Z. A. and L. R. Act and that he had been in exclusive possession over the plot in dispute. The plaintiffs in collusion with defendants Nos. 4 to 6 tried to get the name of Smt. Vidyawati recorded in revenue papers. He denied that any family settlement ever took place between the parties. If there was any such settlement, he was not bound by it.
3. The trial Court decreed the suit holding that there was a family settlement between the parties as alleged by the plaintiffs. Defendant No. 3 was party to it and the settlement which had been acted upon was binding upon him. Qabool Singh went up in appeal. Additional Commissioner Meerut dismissed the appeal and confirmed the decree passed by the trial Court. Qabool Singh then filed a second appeal before the Board of Revenue and challenged the findings recorded by the two Courts below that there had been a compromise and that the family settlement had been acted upon by the parties. It was contended that Qabool Singh did not thumb mark the compromise and in any case the compromise could not be looked into as the same had not been registered. It was further alleged on behalf of Qabool Singh that the mutation Court had found him to be in possess
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