Triveni Lal vs Board Of Revenue And Others

HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - B No. - 27869 of 2001
Triveni Lal
.....Petitioner(s)
Versus
Board Of Revenue And Others
.....Respondent(s)
Counsel for Petitioner(s) : Rajesh Kumar
Counsel for Respondent(s) : Rameshwar Prasad Shukla, Anuj
Kumar, Arun Kumar, C.N. Saroj,
C.S.C.
A.F.R.
Court No. - 54
HON'BLE CHANDRA KUMAR RAI, J.
1. Vakalatnama filed on behalf of respondent nos.3, 4/1 to 4/3 is
taken on record.
2. Heard Mr. Rajesh Kumar, learned counsel for the petitioner, Sri
Aniruddha Chaturvedi, learned cousnel for private respondent nos.3,
4/1 to 4/3, Sri Ashuthhosh Kumar Rai, learned Additional Chief
Standing Counsel for the State-respondents and Sri Rameshwar
Prasad Shukla, learned cousnel for the respondent-gaon sabha.
3. Brief facts of the case are that dispute relates to plot no.223 area
2.42 decimal situated in village-Bishunpura, Mutalike Karnai, Pargana
and District-Ballia. A suit under Section 229-B of U.P.Zamindari
Abolition and Land Reforms Act (hereinafter referred to as the
U.P.Z.A.& L.R. Act) was filed on behalf of respondent nos.2 and 3 for
declaration of bhumidhari right in respect to plot no.223 area 2.42
decimal. In the plaint, it has been alleged that in the year 1970 father
of the petitioner has given disputed plot to the contesting respondents
for looking after the same and after the death of petitioner's father,
the respondents are in continuous possession over the plot in
question. Written statement was filed on behalf of the defendant-

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petitioner denying the plaint allegation. It has been alleged in the
written statement that defendant no.1, Triveni Lal (Petitioner of the
instant petition) is the recorded bhumidhar in possession of the plot in
question, as such no right will accrue in favour of the plaintiffs. It has
also been alleged in the written statement that during consolidation
operation, the plot in dispute was allotted in the chak of the defendant
no.1 and no dispute was raised during consolidation operation in
respect to the plot in question. Issue were framed before the trial
court and the parties had adduced evidence in support of their cases.
Trial Court/ Sub Divisional Officer vide judgment and decree dated
26.7.1999 dismissed plaintiffs' suit recording finding that plaintiffs
have no right to claim declaration in respect to the plot in question,
which is recorded in the name of defendant no.1 as bhumidhar. The
finding has also been recorded by the trial court that no dispute was
raised during consolidation operation regarding plot in question, as
such suit under section 229-B of U.P.Z.A.& L.R.Act for declaration by
the plaintiffs cannot be entertained. An appeal filed by plaintiffs before
Commissioner was also dismissed by judgment and decree dated
1.9.2000. Second appeal filed by the plaintiffs-respondents before the
board of revenue has been allowed vide judgement and decree dated
13.2.2001 dismissing plaintiffs' suit. Restoration application filed on
behalf of the petitioner before the board of revenue has been rejected
vide order dated 18.6.2001. Hence this writ petition on behalf of
petitoenr for the following relief:-
" (i). To issue a writ, order in the nature of certiorari
quashing the impugned order dated 13.2.2001 and
18.6.2001 passed by Hon'ble Board of Revenue, the
respondent no.1."
4. This court entertained the matter on 30.7.2001 and stayed the
execution of decree in pursuance of the judgment dated 13.2.2001

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3
and 18.6.2001.
5. In pursuance of the order of this Court dated 30.7.2001, the parties
have exchanged their pleadings.
6. Learned counsel for the petitioner submitted that petitioner's
ancestor were recorded as bhumidhar of the plot in question and
petitioner is also recorded over the plot in question as well as in
possession of the same. He further submitted that suit under Section
229-B of U.P.Z.A. & L.R.Act filed by plaintiffs-respondents for
declaration with the allegation that they are in possession with the
permission of recorded owner, as such they should be declared
bhumidhar of the plot in question cannot be entertained. He
submitted that suit was dismissed by the trial court recording
categorical finding of fact that no dispute was raised during
consolidation operation in respect to the plot in question as well as
the case set up by the plaintiffs-respondents for declaration of his
right in respect to the bhumidhari land of the tenure holder cannot be
decreed in any manner. He submitted that plaintiffs were bataidar of
the plot in question with the permission of the father of defendant
no.1/petitioner as such no right will accrue in favour of plaintiffs-
respondents in any manner. He further submitted that commissioner
has dismissed the plaintiffs' appeal maintaining the judgement/
decree of the trial court but board of revenue has exceeded his
second appellate jurisdiction while allowing the second appeal as well
as decreeing the plaintiffs' suit without reversing the finding of fact
recorded by the trial court and first appellate court in proper manner.
He submitted that bhumidhari right of the tenure holder cannot be
taken away in any manner. He submitted that the suit under Section
229-B of U.P.Z.A.& L.R. Act filed by the plaintiffs-respondents has
been decreed in exercise of second appellate jurisdiction in illegal
and arbitrary manner. He submitted that judgment/ decree passed by
the Board of Revenue should be set aside and the judgment/ decree

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4
passed by the trial court as well as first appellate court should be
affirmed.
7. On the other hand, learned counsel for the private respondents
submitted that board of revenue has rightly allowed the second
appeal recording finding in support of the judgment to the effect that
Sukhdev Shukla acquired right in respect to the plot in question being
in possession for statutory period of 12 years with the permission of
the defendant's father. He submitted that board of revenue has also
taken into consideration the oral evidence adduced by the parties and
held that plaintiffs are entitled for declaration in respect to the plot in
question to be recorded as bhumidhar. He submitted that restoration
application filed by petitioner before the Board of Revenue was
dismissed in proper manner, as such no interference is required
against the impugned judgment passed by Board of Revenue. He
further submitted that after dismissal of the restoration application by
the order of respondent no.1 dated 18.6.2001 the petitioner filed a
Review Application No.110 of 2000-2001, for reviewing the order
dated 18.6.2001 and 13.2.2001 and the aforesaid Review Application
was rejected by the order of respondent no.1 dated 28.09.2011,
which has attained finality in absence of any further challenge. He
submitted that the counsel of the petitioner in the present writ petition
had also filed an application in the Review Application No.110 of
2001, on 16.7.2001, however, the facts regarding filing of the Review
Application has not been disclosed in the above-mentioned writ
petition, as such writ petition filed by petitioner should be dismissed.
8. I have considered the arguments advanced by the learned counsel
for the parties and perused the record.
9. There is no dispute about the fact that suit under Section 229-B of
U.P.Z.A.& L.R.Act filed by respondent nos.2 and 3 was dismissed on
26.7.1999 by the trial court. There is also no dispute about the fact

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5
that appeal filed by plaintiffs-respondents before the Commissioner
was dismissed by the Commissioner vide judgment and decree dated
1.9.2000. There is also no dispute about the fact that second appeal
filed by the plaintiffs-respondents was allowed by the board of
revenue vide judgment dated 13.2.2001 decreeing the plaintiff suit.
There is also no dispute about the fact that restoration application
filed by defendant-petitioner has been rejected by the board of
revenue vide order dated 18.6.2001.
10. In order to appreciate the controversy involved in the matter,
perusal of the issues framed before the trial court will be necessary,
which are as under:-
"
उक्त वाद मे निम्न वाद विन्दु बनाये गये : -
1
क्या वादी िववािदत भूिम के सािधपत्य भूिमधार मय बाग के है ?
۰
2.
क्या विवादित भूमि वर्ष 1970 मे रामदीन लाल ने वादी को बटाई पर दिया था
या नहीं ? यदि हो तो उसका प्रभाव ?
3.
क्या जुलाई 1972 मे वादी ने रामदीन लाल की अनुमति से विवादित आराजी पर
पेड़ लगाये ? यदि हां तो उसका प्रभाव ।
4.
क्या त्रिवेणी लाल प्रतिवादी विवादित भूमि का तनहा भूमिधार है और उनका इसी
भांति तनहा भूमिहार काविज दाखिल है ?
5.
क्या विवादित भूमि मे आम, अमरूद, आंवला नीबू आदि के पेड़ है और वादी
प्रतिवादी नं0-4 व 5 के साथ विवादित भूमि पर बागदार भूमिहार है व काविज है ?
6.
क्या शोकहरण शुक्ल, ऋषिकेश शुक्ल प्रतिवादी विवादित भूमि के सह - बागदार
भूमिधार साथ वादी के है तथा उनका कब्जा दाखिल है ?
7.
क्या प्रतिवादी ने नवम्बर 1987 में विवादित भूमि मे पेड़ लगाया और बतौर
काश्तकार भूमिधार काविज है ?
8.
क्या दावा वादी मे दफा-14 कानून दादरसी का दोष है ?
9.
क्या दावा वादी 80 सीपी.सी. का दोष है?

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6
10.
क्या दावा वादी फाल्स, फ्रीवोलेस एंव वेक्सेसियस है और प्रतिवादी विशेष
कास्ट पाने का अधिकारी है।
11.
क्या दावा वादी नियमानुसार तसदीक्सदा एंव हस्ताक्षरित है ।
12.
क्या दावा वादी मे दफा-229 बी ज०बी० अधिा० चलने योग्य है ?
अतिरिक्त वाद विन्दु
1-
क्या दावा वादीगण दफा-49 चकबन्दी कानून से बाधित है ।"
11. The trial court while deciding the aforementioned 13 issues has
taken into consideration various documentary evidence filed by the
parties as well as oral evidence adduced by the parties. The finding
of fact has been recorded by the trial court while deciding the issues
to the effect that no claim was raised during consolidation operation,
during which the chak was carved out in the name of defendant no.1.
The finding of fact has also been recorded that even possession of
plaintiffs has not been proved over the plot in question rather for
some time, the plaintiffs were the bataidar of the defendant no.1, as
such no right will accrue in favour of the plaintiffs. The judgment and
decree passed by the trial court has been maintained by first
appellate court/Commissioner considering the each and every aspect
of the matter.
12. The board of revenue in exercise of second appellate jurisdiction
has allowed the second appeal and decreed the plaintiffs' suit by
passing cryptic judgment. The judgment of the board of revenue can
be a judgment of affirmance but the same cannot be judgment of
reversal specially when plaintiffs are claiming right on the basis of
adverse possession.
13. So far as plea of adverse possession or benefit of class IX entry
of land record manual (Possession without title) is concerned, this
Court in the case report in 2010 (111) RD 379 Mangu Vs. Deputy
Director of Consolidation and others has held that benefit of class

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IX entry of land record manual cannot be given, if there is non
compliance of mandatory provision contained under Para-A-81, A-81,
A-82, 102-A of land record manual. Paragraph no.12 of the judgment
rendered in Mangu (Supra) will be relevant for perusal which is as
under;-
"12. This court while examining an identical issue in
the case of Sadhu Saran (supra) again held that entries
of clause IX made without following the procedure
prescribed under paragraphs Nos. A 80, A-81, A-82
amd 102 and without issuing P.A. 10 notice to the chief
tenant do not confer any title.
Thus in view of the above I am of the considered view
that the respondent no. 2 and 1 did not commit any
illegality in holding that the entries of clause IX made in
favour of the petitioner and the respondent no. 8 were
illegal as the same were made in contravention of and
against the provisions of U.P. Land Record Manual and
the first contention raised by the learned counsel for
the petitioner has no force."
14. In the instant matter, trial court and first appellate court have
examined the matter in detail and found that suit for declaration filed
by plaintiffs cannot be decreed in any manner. So far as the exercise
of second appellate jurisdiction by the board of revenue is concerned,
this court in case reported in 1985 RD 93 Sharda Devi Vs. Board of
Revenue U.P. has held that second appellate court cannot set aside
the finding of fact-recorded by trial court/ first appellate court in proper
manner. Perusal of paragraph no.24 of the judgment rendered in
Sharda Devi (supra) will be relevant , which is as under:
"24. In view of the discussion herein-before, I am of the

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view that the Board of Revenue has clearly exceeded
jurisdiction under Section 100 C,P.C. read with Section
331(4) of the Act. There was no scope of the second
appellate court to set aside the findings of fact
recorded by the Additional Commissioner about the
fraudulent or collusive nature of the decree. The
findings of fact were also based on evidence and law
soever grossly erroneous they may appear to be, when
in fact they were not erroneous, much less grossly
erroneous, the second appellate court had no
jurisdiction to interfere with the same. The vendors,
respondents Nos. 7 and 8 had no right, title or interest
left in the plots in dispute after admitting the claim of
the petitioner in the compromise decree, so as to be
able to transfer any interest by the sale deed dated July
11, 1966 in favour of vendees. Hence the vendees did
not derive any title out of the sale deed."
15. It is material to mention that if the suit under Section 229-B of
U.P.Z.A. & L.R. Act filed on the plea of adverse possession/ bataidar
will be decreed in exercise of second appellate jurisdiction as well as
against the ratio of law laid down by this Court in Mangu (Supra)
then it will be very difficult for the bhumidhar/owner of the agricultural
plot to manage their agriculture land.
16. Considering the entire facts and circumstances of the case, the
impugned judgments/ order dated 13.2.2001 as well as order dated
18.6.2001 passed by respondent no.1-Board of Revenue, U.P.
Allahabad are liable to be set aside and the same are hereby set
aside.
17. The writ petiton stands allowed. The judgment of trial court
dated 26.7.1999 as well as judgment of first appellate court dated

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1.9.2000 are hereby affirmed.
18. No orders as to costs.
May 14, 2026
PS*
(Chandra Kumar Rai,J.)
Digitally signed by :-
PRITI SHARMA
High Court of Judicature at Allahabad
Digitally signed by :-
PRITI SHARMA
High Court of Judicature at Allahabad