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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Jaspreet Singh, J.
Mohd. Siddiq Khan & Others - Petitioner
Vs.
The Board Of Revenue U.P. At Allahabad Thru Chairman & Other - Respondent
MISC. SINGLE No. - 644 of 2014
Decided On : 22-01-2021
Constitution of India,1950 – Articles 19 (1) (f), 300-A and 226 - Uttar Pradesh Consolidation of Holdings Act, 1953 - Sections 229-B, 6 (1) , 229-B , 49 , 171 and 9-A (2) - Board of Revenue - Zamindari Abolition and Land Reforms - Alleged settlement and also stated that in so far as Plot is concerned, same never belonged and therefore the case set up by plaintiff that he had acquired rights in the said property through his maternal uncle was false - Another objection raised was that even during the first round of consolidation, the plaintiff or his father had never raised any question or objection regarding the property being recorded solely in name of Ghuru Khan, consequently, by virtue of Section 49 of U.P.C.H. Act, 1953 - First appeal preferred by petitioners before Additional Commissioner - Pleaded that he is entitled to half share whereas Plot was his exclusive and a declaration to aforesaid effect be granted - Suit was instituted by him against his uncle Chheda Khan, the admitted pedigree as disclosed in the pleadings common ancestor who had two sons - ancestral property and was in joint mutation at time of first consolidation operation - Father of plaintiff Jhabbu Khan and father of the defendant - Even after the death families remained together and upon the death of Ghuru Khan – Held, 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 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 - Rights of co-sharers will not at all come to an end under Section 49 of the Act, on 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 property will continue to exist - Section 49 would not operate. Since it was clearly borne out from the evidence and material on record that at time of first consolidation - Dispute during the second consolidation but by virtue of Notification under Section 6, the same was cancelled and present suit under Section 229-B was instituted, hence, at the given opportunity, the plaintiff had raised his claim - Decision relied upon by learned counsel for petitioner in the case of Shahid Khan being on different facts is clearly distinguishable - Court is bound by the Division Bench decision and no contrary decision has been placed before the Court by either of parties or by the learned Standing Counsel, hence, this Court is of the considered view that in the given facts and circumstances - Court does not find that there is any merit in the aforesaid petition – Petition is dismissed
JUDGMENT :
Heard Sri Syed Aftab Ahmad, learned counsel for the petitioner. Sri Vijay Bahadur Verma and Sri P.V. Chaudhary, learned counsel appearing for private respondent nos. 6/1 to 6/4 and 7 respectively.
2. The petitioners by means of the instant petition assails the judgment passed by the Assistant Collector 1st Class, Bakshi Ka Talab, Lucknow dated 29.08.2007 whereby in the case under Section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the U.P.Z.A. & L.R. Act) instituted by the predecessor-in-interest of the private respondent nos. 6/1 to 6/4 (namely Sarvar Khan) was decreed. The first appeal preferred by the petitioners before the Additional Commissioner (Judicial) Lucknow Division, Lucknow was dismissed by means of judgment dated 20.12.2010 in Appeal No. 440 of 2007-08 and further the second appeal preferred by the petitioners before the Board of Revenue bearing Second Appeal No. 191/2011-12 was also dismissed by means of judgment dated 22.01.2014.
3. In order to appreciate the controversy involved in the above petition, the facts giving rise to the instant petition are being noticed first:-
4. While instituting the aforesaid suit, Sarvar Khan had pleaded that he is entitled to half share in Plot No. 172 and 227 whereas Plot No. 238 was his exclusive and a declaration to the aforesaid effect be granted. The aforesaid suit was instituted by him against his uncle Chheda Khan, the admitted pedigree as disclosed in the pleadings is that Subrati Khan was the common ancestor who had two sons namely Ghuru Khan (father of the original defendant Chheda Khan) and Jhabbu Khan (father of the plaintiff-Sarvar Khan in the suit under Section 229-B of the Act).
5. It was pleaded that Plot Nos. 172 and 227 was the ancestral property and was in joint mutation at the time of first consolidation operation. The father of the plaintiff Jhabbu Khan and father of the defendant-Chheda Khan namely Ghuru Khan were living jointly and since Ghuru Khan was the elder brother, therefore, his name stood mutated in the revenue records. Even after the death of Jhabbu Khan, the families remained together and upon the death of Ghuru Khan, later the name of the Chheda Khan was mutated in the records since the other son of Ghuru Khan namley Rustom Khan had pre-deceased him and was issueless. It was also pleaded that in the year 1988-89 an oral settlement between the families took place as a result the plaintiff got half share in Plot Nos. 172 and 227 and in so far as Plot No. 238 is concerned that was inherited by the plaintiff through his mother who got the said plot from Shamsuddin (real maternal uncle of plaintiff) and thus the plaintiff was in exclusive possession of Plot No. 238.
6. When the consolidation proceedings commenced, the plaintiff preferred his objections under Section 9-A (2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as the U.P.C.H. Act, 1953) however, before the matter could be finally decided, a notification under Section 6 (1) of the U.P.C.H. Act was issued on 22.06.2001 as a result the consolidation operations were terminated. It is immediately thereafter that the plaintiff on 02.01.2002 instituted the suit for declaration under Section 229-B of the U.P.Z.A, L.R. Act, 1950.
7. The original defendant namely Chheda Khan filed his written statement contesting the suit of the plaintiff Sarvar Khan on the ground that the allegations made are false. It was stated that the property in the shape of Plot No. 172 and 227 as wel
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