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2024 Supreme(Online)(ALL) 2521
HIGH COURT OF ALLAHABAD
Hon'ble Saurabh Shyam Shamshery,J.
Smt. Kela And Another – Appellant
Versus
Jahangir Singh And Others – Respondent
WRIT - B No. - 3538 of 1982 at Allahabad
Petitioner: Virendra Singh , Deoraj Singh , Devendra Dahma and K.M. Garg
Respondent: K.M.L. Nigam , A.S. Diwaker , Rajiv Asthana , S.C. , Sudhir Kumar Pandey and Syed Ashraf Ali
A plaintiff cannot claim co-tenure rights without proper succession reporting and valid legal grounds; previous dismissals do not bar subsequent suits if withdrawn.
Headnote:(A) U.P. Z.A. and L.R. Act, 1950 - Section 229-B and Section 34 - Suit for declaration of co-tenure holder - Plaintiff's claim dismissed due to lack of proper succession reporting and legal recognition of compromise - Court found that the plaintiff did not acquire sirdari rights by succession or compromise, and defendants are sole sirdars. (Paras 3, 10, 12, 22)
(B) Res Judicata - Dismissal of earlier suit as withdrawn does not constitute res judicata for subsequent suits regarding the same cause of action. (Paras 24, 30)
Facts of the case:
The plaintiff sought declaration as a co-tenure holder after previous suits were dismissed. The trial court dismissed the suit citing lack of succession reporting and validity of a compromise. (Paras 1, 3, 5)
Findings of Court:
The court held that the plaintiff did not establish rights over the land, and the defendants are the sole sirdars. (Paras 10, 12)
Issues: The main issues were whether the plaintiff had co-tenure rights and if the suit was barred by res judicata or adverse possession. (Paras 3, 10)
Ratio Decidendi: The court ruled that the plaintiff's claims were barred due to lack of proper legal succession and that previous dismissals did not affect the current suit's standing. (Paras 10, 24)
Result: Writ petition dismissed.
JUDGMENT :
Saurabh Shyam Shamshery, J.
1. Heard Sri K.M. Garg, learned counsel for petitioners and Sri Syed Ashraf Ali, learned counsel for respondent no.1.
2. In the present case, contesting original respondent has filed a Suit under Section 229-B of U.P.Z.A. and L.R. Act, 1950 (for short “Act of 1950”) against original Petitioners-1 and 2 for declaration that he was a co-tenure holder in suit property with defendants. The Suit was dismissed vide order dated 23.06.1970. In said Suit, following 5 issues were framed :-
“1. Whether plaintiff is co-tenure holder with defendants no. 1 and 2 in the land in suit?
2. Whether defendants no. 1 and 2 are solesirdar in the land in suit?
3. Whether suit is barred under Order IX Rule 8 CPC?
4. Whether suit is barred by res-judicata?
5. What relief, if any, is the plaintiff entitled?”
3. Issues No. 3, 4 and 5 were not pressed and only issuesno. 1 and 2 were decided. For reference, relevant part thereof is quoted below :-
“The first point to be seen is whether plaintiff can acquire sirdari rights by succession as son of Budha because Budha was admitted as tenant of this land. In my opinion, Budha was tenant of this land and so far his death, plaintiff automatically became sirdar of this land. However, the plaintiff has not reported succession as required by U.P. Land Revenue Act and so the Court is precluded for taking cognizance of the case on this point because it is barred under Section 34(5) of U.P. Land Revenue Act. No doubt, the defendants have not taken any objection on this point but this being a legal point and so it has been taken. Plaintiff is said to have filed an application but there is no document to support it. Therefore, the claim of the plaintiff as sole sirdar of the land cannot be recognized. Besides has not pressed this point seriously but has raised his claim on the basis of the compromise and admission.
The compromise is dated06.06.1956. On this date, the Tenancy Act was in force. Therefore, this compromise as best can mean that the plaintiff recognized defendants no.1 and 2 as co- tenant and defendants no. 1 and 2’s father recognized the plaintiff as co-tenant. During the continuance of the Tenancy Act, this co-tenancy could not be recognized, in view of the bar created by Section 33 provisions of U.P. Tenancy Act because the Zamindar was not a party to it. Besides, the compromise was not recognized by Sri B.S. Kaushik, Judicial Officer vide his order dated 22.01.1966. It is placed on behalf of the plaintiff that this suit was withdrawn and so I think the point loses its significance. This compromise isEx.Ka.-1. This compromise deed has been challenged by defendants no.1 and 2 under the circumstances it was necessary for the plaintiff to have sent this document to some expert for the comparison of thumb mark of Hoop Karan deceased. As given in this document with the admitted document of Hoop Karan. This felicitation deed or compromise is silent about the land revenues payable on this land. This was necessary with a view to decide the valuation of this land coupled with the fact if it requires registration or not. This document was not produced by the plaintiff in case u/s 145 Cr.P.C. in between him and father of defendants no. 1 and 2. Therefore, this document cannot be treated as genuine and in case conferring any title on the plaintiff. The next point is the admission of Smt. Nanhi the then tenant of this land. It is a settled law that there is no admission against legal pleas. When co-tenancy cannot be conferred or recognized by act of parties in the form of compromise, it cannot be recognized on the basis of admission. Therefore, then admission plea will also not help the plaintiff. Therefore, in view of above discussion, plaintiff cannot become sirdar either by succession or by compromise or by admission. Apart from these facts plaintiff has any right after the death of Budha it was necessary for him to file a declaratory suit after reporting succession as required u/s 34 U
