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IN THE HIGH COURT OF ALLAHABAD
Jaspreet Singh, J.
Mohd. Siddiq Khan & Others – Petitioners
Versus
The Board of Revenue U.P. At Allahabad Thru Chairman & Other – Respondents
Misc. Single No. 644 of 2014
Decided On : 22-01-2021
Constitution of India, 1950 – Article 226, 19(1)(f), 300-A – Civil Procedure Code, 1908 – Order 41 Rule 27 – U.P. Consolidation of Holdings Act, 1953 – Section 49, 6(1), 9-A (2) –U.P.Z.A, L.R. Act, 1950 – Section 229-B – Power of High Courts to issue certain writs – Persons not to be deprived of property save by authority of law – Petitioners by means of instant petition assails judgment passed by Assistant Collector 1st Class, whereby in the case under Section 229-B of Uttar Pradesh Abolition and Land Reforms Act, 1950 instituted by the predecessor-in-interest of private was decreed –Held, It is clear that in present facts and circumstances, bar of Section 49 would not operate – Since it was clearly borne out from evidence and material on record that at time of first consolidation, parties were living jointly and there was no dispute amongst them followed by a settlement – Subsequently, when raised dispute during second consolidation but by virtue of Notification under Section 6, same was cancelled and thereafter present suit under Section 229-B was instituted, hence, at given opportunity, plaintiff had raised his claim – In view of aforesaid, decision relied upon by learned counsel for petitioner in case of being on different facts is clearly distinguishable – Petition dismissed.
JUDGMENT :
1. 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. One Sri Sarvar Khan who was the predecessor-in-interest of the private respondent nos. 6/1 to 6/4 had instituted a Suit under Section 229B of the U.P.Z.A. & L.R. Act in respect of Plot No. 172 measuring 4 Biswa, 16 Biswansi, Plot No. 227 measuring 1 Bigha, 9 Biswa, 4 Biswansi and Plot No. 238 measuring 1 Bigha, 2 Biswa and 13 Biswansi, total three plots situate in Gram Palka, Pargana, Mahosa, Tehsil Bakshi Ka Talab, District Lucknow.
5. 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).
6. 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.
7. 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.
8. 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 a
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