Basant Singh vs Board of Revenue and Others

A.P. Sahi, J.—The Petitioner has come up before this Court assailing the judgment and orders dated 9th July, 1990 and 27th November, 1990 whereby the judgment and decree of the trial court dated 19.02.1990 in favour of the Petitioner has been upset, and it has been held that the suit was not maintainable in view of the bar contained in Section 49 of the U.P. Consolidation of Holdings Act, 1953.

The facts are that the suit was filed by the Petitioner on the ground that the property in question was ancestral and that the pedigree being common, the name of the Plaintiff had been wrongly not recorded along with the other co-tenants. A declaration be therefore issued to that effect. The share of the Petitioner claimed in the property was 5/12.

The Defendant Nos. 4 to 15 filed their written statement and admitted the claim of the Petitioner that the land was ancestral and further that the pedigree was also correct. The Defendant No. 17 Dalle Ram remained absent and his whereabouts remained unknown. The Defendant Satya Prakash, who is the Respondent No. 9 herein, filed a separate written statement disputing the claim of the Petitioner Plaintiff but he did not deny the pedigree or the fact that the holding in dispute was ancestral. The Defendant Nos. 1, 2 and 3 also contested the claim whereafter evidence was led and the Plaintiff Petitioner proved it to the hilt that all the family members and predecessors of the Plaintiff and Defendants were the recorded co-owners. During the pendency of the dispute, the Defendant Respondent No. 5 Jagjeet sold his share in favour of the Respondent No. 9 Satya Prakash, and therefore, he was entitled to an additional extent of the share of Jagjeet. The suit was ultimately decreed on 19th February, 1990. The trial court held that the bar of Section 49 of the U.P.C.H. Act, 1953 would not be applicable in case of a declaration of share sought by a co-owner in view of the law laid down in the case of Raj Bahadur Singh v. Board of Revenue reported in 1979 RD 50. The Respondent No. 9 Satya Prakash filed an appeal before the Commissioner, who allowed it, vide judgment dated 19th July, 1990, holding that the bar of Section 49 would apply as the Plaintiff Petitioner had failed to get his share declared during the consolidation proceedings. Aggrieved by the said judgment and decree, the Petitioner filed a second appeal before the Board of Revenue which was also dismissed on 27.11.1992 affirming the order of the first appellate court.

Sri B. Malik, learned Counsel for the Petitioner submits that none of the Respondents in spite of having served with notice have contested the matter and it was only Satya Prakash who had filed an appeal before the first appellate court and had also contested the matter in second appeal. All the other co-shares had virtually admitted the claim of the Petitioner, and therefore, it is only Satya Prakash who deserves to be heard in this matter.

During the pendency of this writ petition, the heirs of the Respondents have been substituted and the Respondent No. 9 Satya Prakash has filed an affidavit sworn on 17.7.2011 to the effect that the answering Respondent has "adjusted" with the legal heirs of the Petitioner and since the other Defendant Respondents had already admitted the claim of the Petitioner No. dispute remains to be decided, and therefore, he does not intend to file any counter affidavit and contest the present writ petition.

So far as, the bar of Section 49 is concern, the decision that was relied on by the trial court is further substantiated by the law laid down by this Court in the case of Asha Ram v. Ravi Dutt and Ors. reported in 1985 RD 157 holding that the bar of Section 49 would not operate in such cases.

Resultantly, the only contesting party namely Satya Prakash has abandoned the contest and has virtually compromised the matter with the Petitioner. In such a situation, where the parties have already admitted the claim of the Petitioner, it will not be appropriate to allow the judgment of the first appellate court and the second appellate court to continue. The impugned orders are, therefore, set aside and the writ petition is allowed. The order passed by the trial court shall stand affirmed in terms of the affidavit filed by the Respondent Satya Prakash and referred to hereinabove.