Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
2024 INSC 380
CIVIL APPEAL NOS.8743-8744/2014
PRASHANT SINGH & ORS. ETC. APPELLANTS
VERSUS
MEENA & ORS. ETC. RESPONDENTS
WITH
CIVIL APPEAL NO.8971/2014
&
CONTEMPT PETITION (C) NO.86/2024
IN
CIVIL APPEAL NOS.8743-8744/2014
J U D G M E N T
Surya Kant, J.
1. Application (IA No.115495/2021) for bringing on
record the legal representatives of deceased appellant
no.2 is allowed after condoning the delay, if any. Cause
title be amended accordingly.
2. In these civil appeals the controversy revolves
around the ownership rights over Khasra Nos.115, 151 and
152, situated within the Revenue Estate of village
Mustafabad, District Haridwar, Uttaranchal (now
Uttarakhand). It is broadly not in dispute that the
subject land is an ancestral property originally owned by
Angat, who died leaving behind three sons, namely, Ramji
Lal, Khushi Ram and Pyara. Pyara died issue-less and his
Signature Not Verified
Digitally signed by
Ashwani Kumar
Date: 2024.05.04
12:16:39 IST
Reason:
share devolved equally upon his other two brothers.
Khushi Ram also seems to have died before 1950 leaving
1
behind his son Kalyan Singh, who succeeded his father’s
share in the subject property. The fact that Kalyan Singh
was co-owner/co-sharer in the subject land is fortified
from the entries in the revenue record, which the
appellants have produced in these proceedings as well.
3. It seems that consolidation proceedings were
initiated in village Mustafabad in late 50s or early 60s
in accordance with the provisions of the U.P.
Consolidation of Holdings Act, 1953 (in short, the “1953
Act”). Ramji Lal – one of the uncles of Kalyan Singh –
approached the Consolidation Officer in the pending
reference pertaining to their land under the erstwhile
Section 9(3) of the 1953 Act (i.e., as it stood before
the U.P. (Amendment) Act 8 of 1963), claiming that
whereabouts of Kalyan Singh were unknown and hence his
name may be expunged from the ownership entry of the
revenue record. The Consolidation Officer passed an order
dated 08.05.1960 on the basis of a report dated
17.03.1960 of the Assistant Consolidation Officer, which
inter alia claimed that Kalyan Singh – co-tenure holder
had not been heard for last 8 of 10 years, he did not
arrive in the village and an affidavit to this effect was
filed by his uncle Ramji Lal. Since all efforts to secure
service on Kalyan Singh failed, the Consolidation
Officer, “in the interest of correction of record”,
expunged the name of Kalyan Singh from the record and
2
declared his civil death. On this premise, Ramji Lal
(later on his legal representatives) started claiming to
be the sole owner(s) of the entire land holding of Angat.
4. Kalyan Singh then instituted Suit No.19/1985 on
12.03.1985 before the Assistant Collector, First Class,
Haridwar for declaration of his half share in the suit
property. The suit was decreed in his favor. Ramji Lal
filed an appeal, which was dismissed on 06.08.1986. Ramji
Lal then approached the Board of Revenue in a Second
Appeal. That appeal was allowed in part on 31.07.1989 and
the suit was remanded with a direction to adjudicate the
dispute regarding Khasra No.115 afresh after forming an
issue with respect to applicability of Section 34 of the
Specific Relief Act, 1963. Kalyan Singh challenged the
aforesaid order of the Board of Revenue before the High
Court. His writ petition has been allowed by the High
Court vide impugned judgment dated 16.01.2013.
5. We have heard learned senior counsel on behalf of
the appellants as well as learned senior counsel who is
representing the prospective vendees in whose favour
Kalyan Singh had allegedly executed an agreement to sale
and a mortgage deed. The other learned counsels
representing the interested parties have also been heard
and the material placed on record perused.
6. The sheet anchor of Mr. S.R. Singh, learned senior
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counsel for the appellants, is Section 49 of the 1953
Act. It is urged that the order dated 08.05.1960 passed
by the Competent Authority in exercise of its powers
under that provision, having attained finality, Kalyan
Singh lost his right, title or interest in the subject
land. It is contended that not only the subsequent suit
filed by Kalyan Singh was expressly precluded under the
said provision, such a suit was hopelessly time barred.
It is then argued that the High Court exceeded its
jurisdiction in interfering with the order of remand
passed by the Board of Revenue for determination of the
legal issue as to maintainability of a simpliciter suit
for declaration, without seeking consequential relief of
possession filed by Kalyan Singh. The Board, it is
asserted, rightly remanded the suit for determination of
its maintainability keeping in mind Section 34 of the
Specific Relief Act, 1963.
7. Contrarily, it is urged by learned senior
counsel/other counsels for the respondents that neither
Section 49 of the 1953 Act was attracted in the instant
case nor the Consolidation Officer was competent to rob
off Kalyan Singh of his ancestral right as a tenure
holder on the subject land. Such a power, according to
learned senior counsel for the respondents, is beyond the
purview of Section 49 of the 1953 Act. As regard to
Section 34 of the Specific Relief Act, 1963, it is urged
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that since Kalyan Singh was co-owner in the subject land
along with his uncle Ramji Lal or his successors, the
possession of the subject land continued in favour of all
the co-owners. Consequently, even if one of them was in
actual physical possession, such possession was of
permissible nature, for and on behalf of all the co-
owners. It is thus maintained that, no consequential
relief like a decree for possession was required to be
sought by Kalyan Singh in his declaratory suit.
8. Section 49 of the 1953 Act reads as follows:
“ 49. Bar to Civil Court jurisdiction —
Notwithstanding anything contained in any other
law Courts for the time being in force, the
declaration and adjudication of rights of
tenure-holder in respect of land, lying in an
area, for which a notification has been issued
under sub-section (2) of Section 4, or
adjudication of any other right arising out of
consolidation proceedings and in regard to
which a proceeding could or ought to have been
taken under this Act, shall be done in
accordance with the provisions of this Act and
no Civil or Revenue Court shall entertain any
suit or proceeding with respect to rights in
such land or with respect to any other matters
for which a proceeding could or ought to have
been taken under this Act:
Provided that nothing in this section shall
preclude the Assistant Collector from
initiating proceedings under Section 122-B of
the U.P. Zamindari Abolition and Land Reforms
Act, 1950 (U.P. Act 1 of 1951) in respect of
any land, possession over which has been
delivered or deemed to be delivered to a Gram
Sabha under or in accordance with the
provisions of this Act. "
9. On a plain reading, we find that Section 49 of the
1953 Act contemplates bar to the jurisdiction of the
5
Civil or Revenue Court for the grant of declaration or
adjudication of rights of tenure holders in respect of
land lying in an area for which consolidation proceedings
have commenced. Section 49 of the 1953 Act is a provision
of transitory suspension of jurisdiction of Civil or
Revenue Court only during the period when consolidation
proceedings are pending. Notably, such suspension of
jurisdiction of these Courts through the non obstante
provision is only with respect to the declaration and
adjudication of rights of tenure holders. In other words,
unless a person is a pre-existing tenure holder, Section
49 does not come into operation.
10. The expression “tenure holder” has been defined in
Section 3(11) of the 1953 Act and it reads as follows:
“ (11) “Tenure-holder” means a bhumidhar with
transferable rights or bhumidhar with non-
transferable rights and includes—
(a) an asami,
(b) a Government lessee or Government grantee,
or
(c) a co-operative farming society satisfying
such conditions as may be prescribed; ”
11. It may be seen that a tenure holder means a
bhumidhar with transferable or non-transferable rights.
The question that arises further is as to what kind of
rights of such tenure holders can be declared or
adjudicated in exercise of powers under Section 49 of the
1953 Act? In this regard, the scheme of the statute
becomes very material.
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12. The object of the 1953 Act is to prevent
fragmentation of the land holdings and consolidate them
in such a fair and equitable manner that each tenure
holder gets nearly equivalent land rights in the same
1
revenue estate. The duty of a Consolidation Officer
under Section 49 of the 1953 Act is to prevent
fragmentation and consolidate the different parcels of
land of a tenure holder. Such a power can be exercised
only in respect of those persons who are already the
tenure holders of the land. Conversely, the power under
Section 49 of the 1953 Act cannot be exercised to take
away the vested title of a tenure holder. No such
jurisdiction is conferred upon a Consolidation Officer or
2
any other Authority under the 1953 Act. The power to
declare the ownership in an immovable property can be
exercised only by a Civil Court save and except when such
jurisdiction is barred expressly or by implication under
a law. Section 49 of the 1953 Act does not and cannot be
construed as a bar on the jurisdiction of the Civil Court
3
to determine the ownership rights.
13. Having held so, it is not difficult to explain that
Kalyan Singh had acquired ancestral rights as a tenure
holder. He was co-owner in the suit land much before the
consolidation proceedings commenced. Hence, the only
declaration and adjudication of rights of Ramji Lal or
1
Attar Singh v. State of U.P. , 1959 Supp (1) SCR 928, para 3 .
2 Amar Nath v. Kewla Devi, (2014) 11 SCC 273, para 17 .
3 Karbalai Begum v. Mohd. Sayeed, (1980) 4 SCC 396 , para 12-13 .
7
Kalyan Singh that a Consolidation Officer could undertake
under Section 49 of the 1953 Act was to avoid the
fragmentation of their respective land holdings and
consolidate or redistribute the parcels of land among
them. As analyzed above, the provision does not enable
the Consolidation Officer to grant ownership to Ramji Lal
in respect of a property, which, before the consolidation
proceedings, never vested in him. Vice versa , the
Consolidation Officer could not take away the ownership
rights of Kalyan Singh which he had already inherited
much before the commencement of the consolidation
proceedings.
14. That being so, the order dated 08.05.1960 passed by
the Consolidation Officer has rightly been held to be
null and void and without any jurisdiction. It was passed
usurping a power fraudulently, which never ever vested in
a Consolidation Officer. The said order is thus liable to
be ignored for all intents and purposes. Having held
that, it is not necessary for us to go into the question
of fraud played upon Kalyan Singh in securing that order
with or without collusion of the Consolidation Officer.
All that is required to be held is that the order dated
08.05.1960 had no binding force or any adverse effect on
the rights of Kalyan Singh.
15. In all fairness, learned senior counsel for the
appellants has placed reliance on a decision of this
8
4
Court in Sita Ram vs. Chhota Bhondey & Ors. , for
contending that during the pendency of consolidation
proceedings, the Authority under the Act assumes the
jurisdiction of the Civil Court to determine all types of
rights including the dispute regarding title over the
land. In our considered opinion that is not the ratio
decidendi of the decision in Sita Ram (supra) . That was a
case where the dispute related to sirdari holdings which
were subject matter of the proceedings under the 1953
Act. These proceedings attained finality when the writ
petition challenging the order of the Deputy Director of
Consolidation was dismissed in limine and that order was
further upheld by this Court under Article 133 of the
Constitution of India. Thereafter, the unsuccessful party
filed a Civil Suit seeking a declaration that the order
passed by the Deputy Director of Consolidation (which had
been upheld by the High Court and this Court) was without
jurisdiction. The said suit was contested with an
objection that it was barred by Section 49 of the 1953
Act. In this backdrop, this Court very aptly held that
the subsequent civil suit was barred under Section 49 of
the 1953 Act. The facts will speak for themselves as to
how Section 49 of the 1953 Act was construed by this
Court in the light of the events noticed above.
16. However, that is not the factual situation here. We
may hasten to add that in the present case, Kalyan Singh
4 1991 Supp (1) SCC 556.
9
filed the suit for declaration questioning the deletion
of his name from the revenue record as a co-owner. As
held earlier in paragraph 14 of this order, the order
dated 08.05.1960 of the Consolidation Officer in the
instant case was totally without jurisdiction and not
being an order within the framework of the 1953 Act, and
it could not bind the rights of Kalyan Singh.
17. As regard to the contention that the High Court
ought not have interfered with the Board’s Order
remanding the case to the Trial Court to examine the
legal issue of applicability of Section 34 of the
Specific Relief Act, 1963, the same just deserves to be
noticed and rejected. We say so for the reason that once
Kalyan Singh is held to be co-owner in the subject
property, the exclusive possession of the land, if any,
with Ramji Lal, was joint in nature and it was for and on
behalf of all the co-owners. Kalyan Singh was already
deemed to be in joint possession of the subject land in
the eyes of law, hence he was not required to seek a
decree of possession qua his share in the suit land.
18. For the reasons afore-stated, we do not find any
merit in these appeals, which are accordingly dismissed.
Contempt Petition (C) No.86/2024
19. In view of the fact that the appeals have been
decided on merits and Kalyan Singh’s legal heir can now
10
seek consequential rights in the suit land, we do not
deem it necessary to entertain these contempt proceedings
and leave the parties to work out their remedies.
20. The contempt petition is, accordingly, dismissed.
.......................J.
(SURYA KANT)
.......................J.
(PAMIDIGHANTAM SRI NARASIMHA)
New Delhi;
April 25, 2024
11
ITEM NO.102 COURT NO.4 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).8743-8744/2014
PRASHANT SINGH & ORS. ETC. Appellant(s)
VERSUS
MEENA & ORS. ETC. Respondent(s)
(IA No. 26634/2023 - APPLICATION FOR PERMISSION, IA No. 7812/2023 -
APPLICATION FOR PERMISSION, IA No. 63778/2022 - APPLICATION FOR
SETTLEMENT, IA No. 115495/2021 - APPLICATION FOR SUBSTITUTION, IA
No. 163683/2023 - EXEMPTION FROM FILING O.T., IA No. 34483/2023 -
EXEMPTION FROM FILING O.T., IA No. 184197/2023 - EXEMPTION FROM
FILING O.T., IA No. 115498/2021 - EXEMPTION FROM FILING O.T., IA
No.163678/2023 - PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES, IA No. 184192/2023 - PERMISSION TO FILE
ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)
WITH
C.A. No. 8971/2014 (X)
CONMT.PET.(C) No.86/2024 in C.A. No.8743-8744/2014 (X)
(FOR ADMISSION)
Date : 25-04-2024 These matters were called on for hearing today.
CORAM : HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE PAMIDIGHANTAM SRI NARASIMHA
For Appellant(s) Mr. S.R. Singh, Sr. Adv.
Mr. Sushant Kumar Yadav, Adv.
Mr. Ajay Yadav, Adv.
Mr. Prateek Yadav, Adv.
Mr. Gaurav Lomes, Adv.
Mr. Prithvi Yadav, Adv.
Mr. Anurag Singh, Adv.
Mr. Dhroov Kumar Singh, Adv.
Mr. Sanjiv Tandan, Adv.
Ms. Swapnil Singh, Adv.
Ms. Radha Rajput, Adv.
Mr. Ankur Yadav, AOR
Mr. Yash Pal Dhingra, AOR
Ms. Asha Gopalan Nair, AOR
Mr. Rohit Amit Sthalekar, AOR
Mr. Purnendu Bajpai, Adv.
12
Mr. Shashank Singh, Adv.
For Respondent(s) Ms. Abha Jain, AOR
Mr. Dinesh Kumar Garg, AOR
Mr. Akshat Kumar, AOR
Mr. M.P. Parthiban, AOR
Mr. Tanmaya Agarwal, AOR
Mr. Wrick Chatterjee, Adv.
Mrs. Aditi Agarwal, Adv.
Mr. Vinayak Mohan, Adv.
Mr. A. P. Mohanty, AOR
Mr. Kavin Gulati, Sr. Adv.
Mr. Rohit Amit Sthalekar, AOR
Mr. Mohith Sivakumar, Adv.
Mr. Dushyant Sharma, Adv.
Mr. Purnendu Bajpai, Adv.
Mr. Shashank Singh, Adv.
Mr. Ankur Prakash, AOR
Mohd. Saquib Siddiqui, Adv.
Mr. Amod Kumar Bidhuri, Adv.
Ms. Srishti Kasana, Adv.
Ms. Priyanka Singh, Adv.
Mr. Yudhister Bharadwaj,Adv.
Ms. Jyoti Sharma, Adv.
UPON hearing the counsel the Court made the following
O R D E R
1. Application (IA No.115495/2021) for bringing on record the
legal representatives of deceased appellant no.2 is allowed after
condoning the delay, if any. Cause title be amended accordingly.
2. The appeals as well as contempt petition are dismissed in
terms of the signed reportable judgment.
(ARJUN BISHT) (MALEKAR NAGARAJ)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
(signed reportable judgment is placed on the file)
13