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IN THE HIGH COURT OF ALLAHABAD
CHANDRA KUMAR RAI, J.
Kulpavitra Tyagi – Petitioner
Versus
Board of Revenue Meerut – Respondent
Writ (B) No. 54273 of 2014
Decided On : 13-05-2024
PROPERTY RIGHTS - U.P. Zamindari Abolition & Land Reforms Act, U.P. Consolidation of Holdings Act - Sections 229B, 176, 49 - The court discussed the provisions of the U.P. Zamindari Abolition & Land Reforms Act, particularly Sections 229B and 176, which allow for suits regarding land rights, and Section 49 of the U.P. Consolidation of Holdings Act, which bars claims not raised during consolidation proceedings. The court interpreted these sections to conclude that the petitioner, as a co-sharer born before the date of vesting, had a legitimate claim to the ancestral property, and that the dismissal of his suit based solely on Section 49 was improper. The court emphasized the need for a proper hearing on the merits of the case.
Fact of the Case:
The petitioner filed a suit under Section 229B of the U.P. Zamindari Abolition & Land Reforms Act for declaration of his rights over ancestral property after discovering that his name was not recorded in the revenue records. The trial court dismissed the suit as barred by Section 49 of the U.P. Consolidation of Holdings Act, a decision upheld by the appellate courts.
Finding of the Court:
The court found that the dismissal of the petitioner's suit based on Section 49 was incorrect, as the petitioner had a birthright to the property and the suit should have been considered on its merits. The court noted that the petitioner was a co-sharer and had not been ousted from the property.
Issues: Whether the petitioner's suit under Section 229B of the U.P. Zamindari Abolition & Land Reforms Act was improperly dismissed based on Section 49 of the U.P. Consolidation of Holdings Act.
Ratio Decidendi: The court held that the rights of co-sharers cannot be extinguished under Section 49 if they have not been ousted from the property, and that the suit should be decided on its merits rather than being dismissed on procedural grounds.
Final Decision: The court allowed the writ petition, set aside the previous orders dismissing the suit, and remitted the matter back to the trial court for a proper hearing on the merits of the case.
JUDGMENT :
CHANDRA KUMAR RAI, J.
1. Heard Mr. Amitabh Agarwal, learned counsel for the petitioner, Mr. W.H. Khan, learned Senior Counsel assisted by Mr. Gulrez Khan, learned counsel for the contesting respondent nos.8 to 12, learned Standing Counsel for the State-respondents and Mr. Sunil Kumar Singh, learned counsel for the respondent- Gaon Sabha.
2. Brief facts of the case are that in Khewat of 1336 fasli, name of Mahal Sullarh Singh Bandobast Vah Sahab, Village- Kharkhauda was recorded in the name of father of Rohtash Singh (father of petitioner as well as respondent nos.8 to 11). In Khewat of 1336 fasli, plot no. 1119, 1385 & 1386, total three plots area 4 bigha, 18 biswa were recorded as Sir in the name of Rohtash Singh, Babu Ram and Raghubir Singh. Plot no. 183G along with 23 other plots total area 14 bigha 14 biswa & plot no. 1083 area 15 biswa was recorded as Khudkasht in the 1333 fasli in the name of Chhatar Singh, grandfather of petitioner & respondent nos.8 to 12. Plot no. 1119 along with other plots situated in Village-Kharkhauda, Pargana Sarawa, Tahsil- Meerut, District- Meerut was recorded in the name of Babu Ram, Raghubir Singh and Rohtash Singh son of Chhatar Singh having 1/3 share each in the khatauni of 1359 fasli. The aforementioned plots, which have been recorded in the Khatauni of 1359 fasli as Sir and Khudkasht has been recorded in the C.H. Form-11 as bhumidhari plot. During consolidation operation 1/3 share has been recorded in the C.H. Form 23 in Khata No. 233 and other plots which have been recorded as having 1/3 share are plot nos.43, 50, 829, 830/1, 1083, 1084 total area 6 biswa 4 biswansi. In C.H. Form 45 new plot has been allotted to chak no. 610, plot no. 1518 area 5 bigha 2 biswa 11 biswansi, plot no. 1529 area 7 bigha 15 biswa 6 biswansi total two plots total area 12 bigha 15 biswa 19 biswansi was recorded in the share of Rohtash Singh, father of the petitioner & respondent nos.8 to 11. In Khewat 1336 fasli, Village- Sadullapur @ Chandpur plot in dispute was recorded in the name of Chhatar Singh, grandfather of petitioner & respondent nos.8 to 12. In khatauni of 1336 fasli, plot no. 589 area 17 biswa situated in Village- Sadullapur @ Chandpur, Tahsil and Pargana Sarawa, District- Meerut. Plot no. 606 area 7 biswa plot no. 609 area 12 biswa, plot no. 625 area 1 bigha 1 biswa, plot no. 626 area 8 biswa, plot no. 636 area 19 biswa, plot no. 641 area 14 biswa, plot no. 642 area 2 bigha 12 biswa were recorded as Sir plots and Plot no. 42 area 1 bigha 14 biswa, plot no. 323 area 1 bigha 13 biswa, plot no. 374 area 7 biswa, plot no. 318 area 5 biswa, plot no. 381 area 6 biswa, plot no. 566 area 14 biswa total 6 plots, total area 4 bigha 13 biswa were recorded as Khudkast in the name of Chhatar Singh (grandfather of the petitioner and respondent nos.8 to 12). In Khatauni of 1359 fasli Mahal Sullarh Singh of Village- Sadullapur @ Chandpura, Pargana Saranwa, Tahsil- Hapur, District- Meerut (now new Tahsil-Meerut) was recorded in the name of Babu Ram, Raghubir Singh and Rohtash Singh son of Chhatar Singh as Sir & Khudkast. In the basic year khatauni (C.H. Form 11), the plots have been recorded in the name of Babu Ram, Raghubir Singh and Rohtash Singh son of Chhatar Singh having 1/3 share each. During consolidation proceeding C.H. Form 23 was issued in which 1/3 share has been given in the name of Rohtash Singh son of Chhatar Singh (petitioner's father). In C.H. Form-41 issued during consolidation operation (new no. 318) having 1/3 share was issued in the name of Rohtash Singh (petitioner's father). In C.H. Form 45, plot no. 318 area 8 bigha 2 biswa 1 biswansi was recorded in the name of Rohtash Singh (petitioner's father). Rohtash Singh died on 16.3.2001 leaving behind five sons, namely, Kulpavitra, Hem Dutt, Daleshwar, Dhirendra and Vipin and one daughter in law, Smt. Rajesh Tyagi wife of Vishwanath (son of Rohtash Singh). During consolidation proceeding petitioner was posted in force, as such, he could not
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