The court permitted the filing of a fresh suit despite previous dismissal due to compliance with statutory reporting requirements, reaffirming access to justice in land disputes.

JUDGMENT :

Saurabh Shyam Shamshery, J.

1. Heard Sri Shrinath, learned counsel for petitioner, Sri R.K. Tiwari, learned Additional Chief Standing Counsel for State-Respondents and Sri Komal Mehrotra, Sri K.M Garg, Sri Ankur Mehrotra, Advocates and Sri Ujjawal Satsangi, Advocate holding brief of Sri Kartikey Saran, Advocate for contesting-respondents.

2. Petitioner before this Court is claiming his right essentially on basis of Will dated 26.09.1966.

3. Learned counsel for petitioner submits that said Will was upheld upto this Court, however, allegedly name of some of the contesting-respondents entered into revenue record which necessitated petitioner to file suit for declaration under Section 229B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as “Act, 1950”) in the year 1968. Initially suit was decreed, however, on an appeal matter was remitted back to decide afresh vide order dated 17.12.1975 with certain observations. Said order is reproduced hereinafter:

4. Learned counsel further submits that in aforesaid circumstances, suit was considered afresh, however, it was rejected on ground of maintainability on a new issue that suit was barred by Section 34 (5) of U.P. Land Revenue Act, 1901 (hereinafter referred to as “Act, 1901”) since its precondition as mentioned in Section 34 (1) to report of succession or transfer of possession was not complied. Accordingly, suit was dismissed vide order dated 30.03.2002 and thereafter first and second appeals filed by petitioner were also dismissed vide orders dated 27.04.2020 and 02.07.2010, respectively. These orders are impugned in present writ petition.

5. Learned counsel for petitioner submits that compliance of conditions of Section 34 (1) of Act, 1901 was not mandatory since contesting-respondents were illegally in possession, therefore, suit was filed under Section 229B of Act, 1950 read with Section 209 of Act, 1901.

6. Learned counsel further submits that during pendency of first appeal an order was passed on 19.02.2007 under Section 34 of Act, 1901 whereby name of petitioner was directed to be mutated, therefore, condition of Section 34 (1) was essentially complied with. However, it was not taken note by First or Second Appellate Court, therefore, learned counsel prays that orders impugned in this writ petition be set aside and suit be heard on merit.

7. Learned counsel appearing for contesting-respondents, fairly submit that petitioner’s suit was dismissed on ground of maintainability as well as it was barred by Section 34 (5) of Act, 1901 and in case such bar is now removed, as submitted by learned counsel for petitioner on basis of order dated 19.02.2007, petitioner has liberty to file fresh suit.

8. In aforesaid circumstances, this Court is of the opinion that suit was barred by Section 34 (5) of Act, 1901 as petitioner has not complied the condition as mentioned in Section 34 (1) of Act, 1901. For reference Section 34 of Act, 1901 is reproduced hereinafter:

“34. Report of succession or transfer of possession. -(1) Every person obtaining possession of any land by succession or transfer (other than a succession or transfer which has already been recorded under Section 33-A), shall report such succession or transfer to the Tahsildar of the Tahsil in which the land is situate.

(2) [Omitted by U.P. Act No. 30 of 1975] (3) [Omitted by U.P. Act No. 30 of 1975]

(4) If the person so succeeding, or otherwise obtaining possession, is a minor or otherwise disqualified, the guardian or other person who has charge of his property shall make the report required by this section.

(5) No Revenue Court shall entertain a suit or application by the person so succ