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2020 Supreme(All) 1174
IN THE HIGH COURT OF ALLAHABAD
Jahangir Jamshed Munir, J.
Lakhan - Appellants
Vs.
Board of Revenue - Respondent
Civil Misc. Writ Petition No. 23996 of 1994
Decided On : 28-01-2020
For the Appellant : S.N. Verma, Ajay Krishna, Ajay Shankar, Archana Singh, Rama Nand Gupta, Shreeprakash Singh, Triveni Shanker and Awadhesh Kumar
For the Respondents: S.C., Anil Kumar Rai, Anshika Agrawal, Anupam Laloriya, D.N. Gupta, Ekansh Varma, K.B. Garg, K.K. Dubey, K.N. Saxena, Kamlesh Kumar Tiwari, Radha Kant Singh, V.K. Gupta, V.K. Singh, Vishal Agarwal, Vishal Agrawal and Vishnu Singh
Headnote:
U.P.Z.A. & L.R. Act - Section 36 - Sought a declaration - Trial Court – Claim of compensation - How two suits could be consolidated and given a single suit number, is not in keeping with fundamental principals of numbering suits. But, that is how it is described in the judgment of the Trial Court. In the proceedings in Appeal before the Commissioner and in Second Appeal before the Board, four suits brought by these plaintiffs-petitioners find clear mention, bearing suit Nos. 83, 84, 85 and 86 all of 1984-85. Whichever way the proceedings have been registered and dealt with, but in substance the suits under reference were brought for a declaration to exclude the name of Sadarani, the common defendant to all the suits from the revenue records, pertaining to the suit property. Sadarani is now dead and represented by her daughter respondent No. 3, Smt. Prema before this Court – Held, present suits have been brought to rectify revenue entries alone by expunging the name of Sadarani from the revenue records relating to suit property over which she was recorded when she inherited it, and the right to which she was divested of on remarriage, going by the law governing rights of parties at that time. Here, it has to be clarified that entries of howsoever long standing in the revenue records, that do not have a valid legal basis about them cannot be permitted to continue, inasmuch as such entries cannot confer title by mere long continuance. They do raise a presumption of good title but in the case in hand, it being clearly established that there is no basis to Sadarani's right to continue to be recorded, the merely long continuing entries would not be basis in themselves to perpetuate. The presumption in this case about long continuing revenue entries stands squarely rebutted. It is precisely this contingency which their Lordships of the Division Bench in Shri Ram and others (supra) answered to overrule the two earlier decisions by the learned Single Judge - Submission that learned counsel for the third respondent, urged for a last, is on the authority of the decision of their Lordships of the Supreme Court in Gajodhari Devi (supra). He submits that the decision is an authority for the principle that a widow once she inherits property, she cannot be divested upon remarriage. The said decision in the opinion of this Court is of no assistance to the third respondent inasmuch as the principle laid down by their Lordships in Smt. Gajodhari Devi (supra) was in the context of a case, where succession had opened out in favour of the widow, of a pre-deceased son of the tenure holder. The tenure holder died in the year 1961 and the widow inherited a share in the property in her right as the widow of the deceased Bhumidhar's son. The rights of the widow were governed by the U.P.Z.A. & L.R. Act, 1951 whereas in the present case, the rights of parties, on common ground are governed by a very different law in force at the relevant time, that is to say, the Act of 1939. The U.P.Z.A. & L.R. Act does not envisage any such principle about divesting, upon remarriage of a widow, of the share that she has inherited from her husband or the husband's father – Petition allowed
JUDGMENT :
Jahangir Jamshed Munir, J.
1. This writ petition is directed against judgments and decrees dated 28.4.1994 passed by the Board of Revenue, U.P. at Allahabad in Second Appeal Nos. 151, 152 and 153 of 1989-90, reversing a judgment and decree of the Additional Commissioner, Jhansi Division, Jhansi dated 24th April, 1990 passed in Appeal No. 90/6/1986-87, 91/7/1986-87, 92/8/1986-87 and restoring the decree of the Sub Divisional Officer, Jhansi dated 27.7.1987 passed in Suit No. 105 of 1984-85, dismissing the petitioner's suit.
2. Petitioners are plaintiffs of four suits being Suit Nos. 83, 84, 85 and 86 all brought against one Sadarani and various proforma respondents, all co-sharers of Khata No. 60 and 57 of village Dongari, Tehsil and District Jhansi (hereinafter referred to as 'the suit property').
3. By the suits aforesaid, brought under Section 229B, the plaintiffs, sought a declaration that the name of Sadarani, widow of Parikshit, recorded co-tenure holder in the suit property, be expunged and that of the plaintiffs, alongwith proforma respondents to the suit, be recorded to the exclusion of Sadarani over the suit property. It must be mentioned here that from the papers placed on record of the writ petition, there is some discrepant description of the precise numbers of suit filed and there respective suit numbers. The judgment of the Trial Court indicates that two suits were filed being Suit No. 87/1984-85 and Suit No. 85/1984, both of which were consolidated into a single suit bearing No. 105/1984-85. How two suits could be consolidated and given a single suit number, is not in keeping with fundamental principals of numbering suits. But, that is how it is described in the judgment of the Trial Court. In the proceedings in Appeal before the Commissioner and in Second Appeal before the Board, four suits brought by these plaintiffs-petitioners find clear mention, bearing suit Nos. 83, 84, 85 and 86 all of 1984-85. Whichever way the proceedings have been registered and dealt with, but in substance the suits under reference were brought for a declaration to exclude the name of Sadarani, the common defendant to all the suits from the revenue records, pertaining to the suit property. Sadarani is now dead and represented by her daughter respondent No. 3, Smt. Prema before this Court.
4. The facts giving rise to the suits that have culminated in this writ petition can be better appreciated with the aid of the following pedigree:
5. It is common ground between parties that the original owner of the suit property was one Balu, who had two sons Hardas and Parikshit. The suit property was inherited in equal share by Hardas and Parikshit. Hardas had four sons, Sahab Singh, Lakhan, Ramesh and Jugraj. In the array of parties, petitioner No. 4, Naval is shown as son of Hardas but the name of Sahab Singh is not mentioned. It is pointed out by learned counsel for the petitioner that Naval has been incorrectly described in the array as son of Hardas. In fact, he is the son of Sahab Singh, who died pendente lite. The other son of Balu, Parikshit, is said to have died sometime in the year 1944 leaving behind his widow, Sadarani. Parikshit died issueless. Some issue has been raised about this matter by Sadarani which in due course would be noticed and dealt with. Again, it is common ground between parties that Sadarani's name was recorded over the half share of Parikshit in the suit property, all before the abolition of Zamindari. Sadarani remarried one Chhimman, two years later. This is also not in issue between parties. The name of Sadarani continued to remain recorded in the revenue records relating to the suit property, to the extent of Parikshit's share, alongwith the other co-sharers that she had inherited, her remarriage notwithstanding.
6. It is the petitioner's case that their father, Hardas entered cultivatory possession of his brother's share as he had died issueless, when his widow remarried. It is the petitioners stand that aft
