Aligarh Muslim University vs Board of Revenue and Others

Bala Krishna Narayana, J.—Heard Smt. Sunita Gupta, learned Counsel for the Petitioners and Sri Anupam Kulshrestha, learned Counsel for the Respondent Nos. 5 to 9.

Counter and rejoinder affidavits, supplementary affidavit, supplementary counter affidavit and supplementary rejoinder affidavits have been exchanged between the parties and with the consent of the learned Counsel for the parties, this writ petition is being finally disposed at the stage of admission.

Brief facts of the case as emerging from the pleadings of the parties are that Har Prasad-Respondent No. 5 and four others Respondent Nos. 6 to 9 filed Suit No. 47 of 1989-90 u/s 229-B of the U.P.Z.A. & L.R. Act (hereinafter referred to as the Act) for being declared bhumidhars of Plot Nos. 81/1, 156, 157Aa, 161-v, 162, 163, 225, 226 area 1.843 hectares of Khata No. 22, Plot Nos. 82, 90-M, 135-M, 138-v, 140-c, 143-c, area 1.763 hectares of Khata No. 12 and plot Nos. 140-t area 0.127 hectares of Khata No. 125 situate in Village Bhamola Mafi, Tehsil Kole, District Aligarh (hereinafter referred to as the land in dispute) before the Sub-Divisional Officer/Assistant Collector-Ist, Aligarh Respondent No. 4. In the said suit, the Respondent Nos. 10, 11 and 12 in this writ petition were arrayed as Defendants Nos. 1, 2 and 3.

The Plaintiffs-Respondent Nos. 5 to 9 claimed that the land in dispute was not located within the municipal limits on 7.7.1949 and its zamindari had been abolished and the provisions of the Act were applicable to the same. Plaintiffs further claimed that they were recorded as ex-proprietary tenants (Kastkar Sakitul Milkiyat) of Khata Nos. 2 and 12 and hereditary tenants (Maurusi Kastkar) of Khata No. 25 and upon abolition of zamindari they became sirdars of the land in dispute u/s 19 of the Act and had thereafter become bhumidhars with transferable rights of the same by virtue of the provisions of U.P. Act No. 8 of 1977. In the said suit written statement was filed by D.G.C. Revenue on behalf of the Respondent No. 10 and Gaon Sabha Bhamola Mafi denying the plaint allegations. Respondent Nos. 11 and 12 despite being served with the summons of the suit chose not to file any written statement. In order to establish their claim over the land in dispute, the Respondent Nos. 5 to 9 filed extracts of Khataunis of Khata Nos. 2, 12, 25 of Village Gram Bhamola Mafi of the years 1396-1401 fasli, copies of the notices given by the Plaintiffs to the State u/s 80 Code of Civil Procedure, Section 106 of U.P. Panchayat Raj Act, 1947, acknowledgement receipt No. 308, registry receipt Nos. 307 and 308 dated 18.9.1998, certificate of bhumidhari sanad No. 58965 dated 14.3.1972, photo-stat copies of extracts of Khataunis of Khata Nos. 26 and 27 of Village Bhamola Mafi Pargana & Tehsil Kole, District Aligarh of 1377 Fasli, photo-stat copy of the notification No. 1896/11-292-35 dated 25.7.1936, photo-stat copy of the notification dated 17.9.1995, photo-stat copy of the notification mentioning the areas comprised within the limits of Nagar Palika Aligarh, photo-stat copy of map of Village Bhamola Mafi, copy of non-Z.A. Khasra of Village Bhamola Mafi of 1395 fasli in which the names of the father of the Plaintiffs-Respondents Mohan Lal was recorded in column-4, photo-stat of khasra non-Z.A. of village Bhamola Mafi of 1377 fasli and copy of khasra non-Z.A. of village Bhamola Mafi 1359 Fasli.

The Plaintiffs examined Har Prasad Respondent No. 5 on their behalf as P.W. The Respondent No. 4 after taking into consideration the entire evidence on record and the respective claims set up by the parties in their pleadings in respect of the land in dispute decreed the Suit No. 47 of 1989-90 by his judgment and decree dated 8.8.1990 (annexure No. 12 to the writ petition) and declared the Plaintiff Respondent Nos. 5 to 9 bhumidhars of the land in dispute.

No appeal or revision was preferred by any of the Defendants against the aforementioned judgment and decree dated 8.9.1990 passed in Suit No. 47 of 1989-90. However, on 26.3.1991 Petitioners filed an application u/s 151 of CPC (annexure No. 13 to the writ petition) before the Respondent No. 4 for setting aside the judgment and decree dated 8.8.1990. interalia on the grounds that the land in dispute was acquired by the Petitioners of which they were zamindars; that the land in dispute was situate in non-Z.A. area hence, the suit filed by the Plaintiffs-Respondents u/s 229B of the Act was not maintainable and that the Petitioners despite being necessary and proper parties were not impleaded by the Plaintiffs-Respondents as Defendants in the suit. The Petitioner in order to establish that they were the zamindars of the land in dispute and the same was situate in a non-Z.A. area had filed documentary evidence which has been referred to in detail by the 1st, 2nd and 3rd courts in their respective judgments. Another application was filed by the State of U.P.-Respondent No. 10 under Order IX, Rule 13 of CPC for setting aside the judgment and decree dated 8.8.1990 passed by Respondent No. 4.

Against the restoration application of the Petitioners the Plaintiffs-Respondent Nos. 5 to 9 filed their objections before the trial court on 3.9.1992 along with an affidavit dated 3.9.1992 (annexure No. 14 to the writ petition). The restoration applications filed by the Petitioner as well as the Respondent No. 10 were transferred from the court of Respondent No. 4 to the court of Sub-Divisional Officer, Mathura-Respondent No. 3 by the Commissioner, Agra Division, Agra. Both the restoration applications were dismissed by the Respondent No. 3 by his order dated 22.9.1992 (annexure No. 17 to the writ petition).

Aggrieved from the order dated 22.9.1992 the Petitioners as well as the State-Respondent No. 10 filed two revisions before the Commissioner, Agra Division, Agra which were numbered as Revision Nos. 21 and 17 of 1992 respectively and transferred for disposal before the Respondent No. 2, who by his order dated 18.12.1992 (annexure No. 18 to the writ petition) dismissed both the revisions. The orders dated 22.9.1992 and 18.12.1992 passed by Respondent Nos. 3 and 2 respectively were challenged by the Petitioner before the Respondent No. 1 in Revision No. 16 of 1992 93. The Respondent No. 1 dismissed the Petitioners'' revision by his order dated 24.8.1994 (annexure No. 19 to the writ petition). This writ petition has been filed by the Petitioners before this Court with a prayer for issuing a writ, order or direction in the nature of certiorari quashing the judgment and decree dated 8.8.1990 (annexure No. 12), orders dated 22.9.1992 (annexure No. 17), 18.12.1992 (annexure No. 18 and 24.8.1994 (annexure No. 19) passed by Respondent Nos. 4, 3, 2 and 1 respectively.

Learned Counsel for the Petitioners submitted that although from the material brought on record by the Petitioners before the Respondent No. 3 along with the restoration application it was conclusively established that the Petitioners were the zamindars of the land in dispute which was situate in non-Z.A. area and hence, the suit filed by the Plaintiffs-Respondents u/s 229B of the Act was not maintainable, the contrary view taken by the Respondent No. 3 while rejecting the Petitioners'' restoration application was totally erroneous, against the evidence on record and wholly untenable.

Learned Counsel for the Petitioners next submitted that the Respondent No. 3 committed a patent error of law in refusing to set aside the judgment and decree dated 8.8.1990 passed by Respondent No. 4 in a suit in which the Petitioners despite being proper and necessary parties on account of their being the zamindars of the land in dispute were not impleaded as Defendants by the Plaintiffs. Learned Counsel for the Petitioners next submitted that the judgment and decree dated 8.8.1990 was liable to be set aside also on the ground that the same was obtained by the Plaintiffs-Respondents by mis-leading the trial court and on the basis of extracts of Khataunis which had been tampered with and interpolated.

Learned Counsel for the Petitioners lastly submitted that the failure of the Respondent No. 2 to redeem the illegality committed by the Respondent No. 3 in rejecting the Petitioners restoration application vitiated the order of the Respondent No. 2 by which he dismissed the Petitioners'' revision filed by them against the orders of the Respondent Nos. 3 and 4 and for the same reason the order passed by the Respondent No. 1 by which it rejected the Petitioners'' revision preferred against the orders of the Respondent Nos. 4, 3 and 2 is also liable to be set aside.

Sri Anumpam Kulshrestha, learned Counsel appearing for the Plaintiffs-Respondents submitted that the Respondent No. 3 while dismissing the Petitioners'' restoration application has recorded a categorical finding of fact in his order that the Petitioners had failed to prove by any evidence that the land in dispute lay within a non-Z.A. area and in fact from the perusal of the evidence adduced by the Petitioners before him it was conclusively established that the land in dispute was situate in a Z.A. Area and its zamindari had been abolished.

Sri Anupam Kulshrestha, further submitted that the Petitioners had filed an application/objection before the Respondent No. 2 on 18.11.1983 alleging therein that the land in dispute lay outside the municipal limits on 7.7.1949 and with a prayer that the same may not be vested in the State which was dismissed by him with the finding that the land in dispute was situate in Z.A. area and hence, it does not lie in the mouth of the Petitioners to allege that the land in dispute lies within a non-Z.A. area.

Sri Kulshrestha next submitted that after the zamindari had been abolished the land in dispute stood vested in the State and thereafter the Plaintiffs-Respondents became entitled to sirdari and bhumidhari rights in the land in dispute in accordance with the provisions of Uttar Pradesh Zamindari Abolition & Land Reforms Act and the zamindar of a land in respect of which zamindari had been abolished was not a necessary party to a suit of a tenant in occupation of the land to which the provisions of U.P. Tenancy Act were applicable, for declaration of his rights and hence, the 1st, 2nd and 3rd courts rightly held that the judgment and decree passed by the Respondent No. 4 was not liable to be set aside on the ground that the Petitioners had not been impleaded as a Defendant in the suit as the Petitioners were neither necessary nor proper parties to the suit.

Sri Anupam Kulshrestha also submitted that even it is presumed though without admitting that the land in dispute was acquired by the Petitioners for educational purposes and the same was exempted from the application of the Act by virtue of the protection granted u/s 2(1)(c) of the Act, even the said protection stood withdrawn by notification dated 15th October, 1986 whereupon all estates which were exempted u/s 2(1)(c) of the Act stood vested in the State.

Sri Anupam Kulshrestha further submitted there was No. interpolation in or tampering with the extracts of Khataunis which were filed by the Plaintiffs-Respondents before the trial court in order to establish their claim over the land in dispute and in any view of the matter No. such plea was raised by the Petitioners either before the Respondent No. 3 or 2 or 1 and hence, the Petitioners cannot be permitted to assail the impugned orders on the ground that the judgment and decree which was sought to be set aside by the Petitioners had been obtained by the Plaintiffs-Respondents on the basis of forged documents.

Learned Counsel for the Plaintiffs-Respondents lastly submitted that the finding recorded by the Respondent No. 3 in his order that the Petitioners failed to prove by any evidence that the land in dispute is situate in a non-Z.A. area and that the same was acquired by them, is a pure finding of fact which has been affirmed by the second as well as the third revisional courts and since the Petitioners have failed to demonstrate that the aforesaid finding of fact is either perverse or erroneous in any manner, this Court while exercising its jurisdiction under Article 226 of the Constitution of India shall not interfere with the same and this writ petition is liable to be dismissed in limine.

I have very carefully examined the submissions advanced by the learned Counsel for the parties and perused the impugned orders as well as the other materials brought on record, and I do not find that there is any merit in the submissions made by the learned Counsel for the Petitioners.

From the perusal of the record it transpires that the Plaintiffs-Respondent Nos. 5 to 9 filed Suit No. 47 of 1989-90 before the Respondent No. 4 for being declared bhumidhars with transferable rights of the land in dispute. The Respondent Nos. 10 and 11 were arrayed as Defendants in the said suit. In order to establish the claim set up by the Plaintiffs-Respondents before the Respondent No. 5 they had adduced oral as well as voluminous documentary evidence comprising of extracts of khasras and khatauni. The claim of Plaintiffs-Respondents for being declared bhumidhars with transferable rights was based on the ground that on the date of vesting they were recorded as ex-proprietary tenants and hereditary tenants of the land in dispute. Although the Gaon Sabha and the Respondent No. 10 had filed a joint written statement before the Respondent No. 4 but they failed to lead any evidence in support of the case pleaded by them in the their written statement despite opportunity being granted to them as a result the Respondent No. 4 proceeded against them under Order 17, Rule 2 and 3 of CPC The Respondent No. 4 by his judgment and decree dated 8.8.1990 decreed the Plaintiffs''-Respondents'' suit. The Respondent No. 4 in his judgment had after referring to the relevant extracts of Khasra and Khatauni filed on behalf of Plaintiffs-Respondents recorded a categorical finding of fact that the Plaintiffs-Respondents were ex-proprietary tenants of Khata Nos. 2 and 12 and hereditary tenants of Khata No. 25 of the land in dispute and in possession thereof continuously for the last 40 years. The Respondent No. 3 had further recorded a finding in his order that the zamindari of the village was abolished on 1st July, 1952 and village Bhamola Mafi was not located within the municipal limits on 7th July, 1949 on which date the U.P.Z.A. & L.R. Act had been enforced. The setting aside of the judgment and decree dated 8.8.1990 passed in Suit No. 47 of 1989-90 and the restoration of the suit was sought by the Petitioners on the following grounds:

(1) The land in dispute was situate in a non Z.A. area to which the provisions of Act were not applicable and hence, the suit in which the judgment and decree was sought to be set aside was passed was not maintainable.

(2) That the impugned judgment and decree was passed against the Petitioners ex-parte and the same, was obtained by the Plaintiffs-Respondents by playing fraud upon the court.

(3) That the Petitioners by virtue of their being the zamindars of the land in dispute having acquired the same were not only proper but necessary parties to the suit and since the Plaintiffs-Respondents had failed to implead the Petitioners as Defendants in the suit, the judgment and decree passed in the said suit was liable to be set aside.

An application under Order IX, Rule 13 CPC was also filed on behalf of the State-Respondent No. 10 for setting aside the ex-parte judgment and decree dated 8.8.1990. Pursuant to the order passed by the Commissioner, Agra Division, Agra both the aforementioned applications were transferred from the court of Respondent No. 4 to the Respondent No. 3 and dismissed by him by a composite order dated 22.9.1992.

The application filed by the State under Order IX, Rule 13 CPC was rejected on the ground that the same was not maintainable as the court had proceeded against the State under Order 17, Rule 2 and 3 of Code of Civil Procedure.

As far as the restoration application filed by the Petitioners is concerned the same was rejected by the Respondent No. 3 with the finding that the Petitioners had failed to prove by any evidence that the Petitioners were the zamindars of the land in dispute and that the land in dispute was situated within a non-Z.A. area and since the Petitioners had No. right or title or interest in the land in dispute, they were neither necessary nor proper parties to the suit filed by the Plaintiffs-Respondents and the judgment and decree dated 8.8.1990 was not liable to be set aside on the ground that the Petitioners had not been impleaded as a Defendants in the suit. The Respondent No. 3 also held that the Petitioners had failed to establish that the judgment and decree dated 8.8.1990 passed in Suit No. 47 of 1989-90 was liable to be set aside on the ground of fraud. The Respondent No. 3 also negatived the plea raised before him by the Petitioners that the land in dispute was protected u/s 2 (1) (c) of the Act on account of it having been acquired for public purposes on the ground that the said protection, if at all was available to them, stood withdrawn by the State Government vide its notification dated 15.10.1986. The findings recorded by the Respondent No. 3 in his order on the issues of fact and law were affirmed up to the Board of Revenue.

Learned Counsel for the Petitioners despite having made elaborate submissions and referred to the documents which have been filed along with the supplementary affidavit of Noman Miyan has failed to show that the concurrent findings recorded by the Respondent Nos. 3, 2 and 1 in their orders on the issues of fact and law suffer from any illegality, infirmity or perversity warranting any interference by this Court.

I have myself very carefully gone through the copies of the notifications dated 19th December, 1906, 21st May, 1910, 13th June, 1925 (annexure Nos. 4, 5 and 6 to the supplementary affidavit of Noman Mia respectively) and the extract of list of State properties purchased by Aligarh Muslim University in Mohal Khalsa, Pila Line, Village Bhamola Mafi (annexure No. 3 to the supplementary affidavit of Noman Mia) and the judgment of this Court dated 6.12.1954 passed in Civil Misc. Writ Petition No. 485 of 1954 and 35 connected writ petitions (annexure Nos. S.A.9 to the supplementary affidavit of Noman Mia) which were referred to and relied upon by the learned Counsel for the Petitioners for demonstrating that the concurrent findings recorded by the Respondent Nos. 3, 2 and 1that the Petitioners were not the zamindars of the land in dispute are vitiated but I am constrained to observe that the aforesaid documents do not substantiate the Petitioners'' claim at all. In fact the land in dispute does not figure in any of the aforementioned notifications or the list of properties purchased by the Petitioners. The plea that the decree sought to be recalled by the Petitioners was obtained by the Plaintiffs-Respondents by perpetrating fraud upon the court is also not established. The extracts of khataunis upon which the Respondent No. 4 had relied while accepting the claim of the Plaintiffs-Respondents appear to me to be in order and even if there was omission to mention the name of the zamindars in the extract of khataunis, there is No. evidence on record to show that the same is attributable to the Plaintiffs-Respondents. Even otherwise the failure to mention the name of the zamindar in the extract of khataunis which is the document of tenure holder will not render such khatauni inadmissible in evidence.

For the aforesaid reasons, I do not see any reason to interfere with the impugned orders. The writ petition lacks merit and is accordingly dismissed.