R.R.K.Trivedi - (1.) THIS writ petition has been filed for quashing the judgment and decree dated 3rd April, 1978 (Annexure-6 to the writ petition) passed by Assistant Collector I Class, Allahabad in Suit No. 210 of 1977, under section 229-B of UP ZA and LR Act which has been confirmed by Additional Commissioner, Allahabad Division, Allahabad in Appeal No. 121 of 1978 vide judgment dated 16th February 1981 and in Second Appeal No. 124 of 1980-81 vide judgment dated 13th July, 1981 passed by Board of Revenue, U. P. Allahabad respondent no. 1.
(2.) THE facts giving rise to the aforesaid litigation are that respondents no. 4 and 5 to the present writ petition, filed a suit being Suit No. 210 of 1977 under section 229-B of the UP ZA and LR Act against petitioner Lala and State of Uttar Pradesh and Nagar Mahapalika, Allahabad for declaration of their tenancy right in plot no. 288, area 8 Biswa situate in village South Malaka, Pargana and Tahsil Chail, Allahabad. THE case of the respondents no. 4 and 5 not out in the plaint was that the land in dispute is ancestral property and it was acquired by their common ancestor Bani, who had four sons namely Khetai, Lala, Kalicharan and Ram Charan. Ajai Kumar, respondent no. 4 is the son of Kali Charan. THE pedigree has been mentioned in para 4 of the plaint. THEir further case is that plaintiffs were tenants of the land in dispute alongwith defendant no. 1 from before the abolition of the zamindari and they have 1/3rd share each in the land in dispute. It was further stated that Kali Charan and Ram Charan were residing away in connection with their business and the ancestral property at Allahabad was being looked after by Lala and Khetai. THEir names were recorded in the revenue papers in the representative capacity and Karta Khandan THE joint Hindu Family continued upto September, 1964 and the entire agricultural and other property belonged to them jointly. However on 20th September, 1964, there was a family settlement in which all the properties including the land in dispute were partitioned and all the parties were given right to get their names recorded in the revenue papers. However, in July, 1976, defendant no. 1 Lala alleged himself to be the sole owner of the land in dispute and threatened to interfere in their rights and possession over the same hence necessity to file a suit arose, as the land in dispute was recorded only in the name of defendent no. 1, Lala. THE State Government and the Nagar Mahapalika, Allahabad had no right, title or interest in the land in dispute but as they are necessary legal parties, hence they were impleaded after serving notice under section 80 CPC. THE relief sought in the suit was that they may be declared as co-sirdar in possession of the land in dispute alongwith defendant no. 1 Lala and their names may also be directed to be recorded in the revenue papers. The suit was resisted by petitioner Lala by filing a written statement on various legal and factual pleas. The family partition of 1964 was denied and it was claimed by petitioner that the land has been exclusively acquired by him by his own labour and investment of money and the land in dispute was not acquired by Beni common ancestor. In para 11 of the written statement, petitioner alleged that he purchased the land in dispute in auction held in 1965 as evacuee property and since purchase he is exclusive owner of the land and the plaintiffs have no right or concern in the land in dispute. On the aforesaid pleadings the necessary issues were struck by the learned trial court. The parties adduced oral and documentary evidence. The trial court vide judgment dated 3rd April, 1973 decreed the suit and declared respondents no. 4 and 5 as cotenants of the land in dispute alongwith petitioner. The trial court recorded finding that in extract of Khatauni for the year 1320F. Beni, the common ancestor of the parties was recorded as tenant of the land in dispute. In extract of Khatauni for the year 1337F. Khetai son of Beni alone was recorded as tenant. The trial court found that as Khetai was the eldest son of Beni and his name, was recorded in representative capacity. The name of petitioner Lala was recorded in khatauni of 1348 F which continued. However, the learned trial court believed the family partition of 20th September, 1964 which was admitted by petitioner also in his statement and the deed of the partition was signed by him. The petitioner also claimed in statement that he purchased the land 45, 46 years in the year 1932. The trial court, however, concluded that the property was acquired much earlier in time, than alleged by petitioner and was therefore property of Joint Hindu family. The trial court also noticed the deed dated 21st October, 1965 by which the petitioner purchased zamindari rights from custodian. On the question of possession trial court after appreciating the statement of the witnesses found that respondents 4 and 5 continued in possession of their shares. It has also been noticed that in khatauni of 1382 F to 1385 F names of Lala, Ram Charan, Kali Charan all sons of Bani were recorded. The trial court found that there was no legal and valid reason for expunging the names of other brothers from revenue papers. On these findings the suit was decreed. An appeal was filed by petitioner. Before the appellate court the deed dated 21st October, 1965 by which zamindari rights were purchased by petitioner from custodian was not pressed at all. The appellate court after considering the oral and documentary evidence on record affirmed the finding of the trial court and dismissed the appeal filed by petitioner. Second appeal filed from aforesaid decree was dismissed in limini under Order 41 Rule 11 CPC by Board of Revenue vide order dated 13th July, 1981. Thus all the three courts recorded a concurrent finding that the land in dispute was ancestral property and the petitioner and respondents 4 and 5 were co-tenants and were in possession of their shares. The family partition of 1964 was accepted. Challenging the aforesaid judgments of the three courts the present writ petition has been filed.
(3.) I have heard Sri G. N. Verma, learned counsel appearing for the petitioner and Sri Radhey Shyam, learned counsel appearing for the respondents no. 4 and 5 and I have perused the documents on record. Sri G. N. Verma has mainly argued the case of petitioner on the basis of the document i.e. deed of conveyance executed by custodian in favour of petitioner on 21st October, 1965 which has been filed as Annexure-5 to the writ petition. In this document, the property purchased by petitioner has been described in Schedule I in following manner : "Zamindari right in respect of urban agricultural plot 288 (0-8-0) Eight' biaua only, situated in village Malakraj. Tahsil Distt., Alld. belonging to evacuee Sri Abdul Samad." Sri G. N. Verma has vehemently argued that the courts below have failed to consider the legal effect of this document has been ignored. He has submitted that the findings in ignorance of this document cannot be sustained in law. He has relied on section 27 of Displaced Persons (Compensation and Rehabilitations) Act, 1954 (Act No. 44 of 1954). The submission of Sri Verma is that every order made by the Officer or an authority under the Act, is final and cannot be questioned in any court of law. Sri Verma has also placed reliance in support of his submission in Mazharul Islam v. Khacher Bux, AIR 1969 AUd. 554, Sunder Singh v. Central Government, AIR 1986 SC 2166 and Smt. Pujari Bai v. Madan Gopal, AIR 1989 SC 1764. Sri Verma has also challenged the finding of the courts below saying that there was a fresh settlement in favour- of Khetai by the zamindari and after the death of Khetai there was a fresh Settlement in favour of petitioner Lala, which was recorded in 1348 F and his name continued since then. The basis for the submission of Sri G. N Varma is that the period of tenancy in extract of khatauni of 1320F. 1333F and 1348F. has been mentioned differently and there is no continuity. The different periods of tenancy mentioned, according to him, clearly established a fresh settlement. It has also been said that in 1348F. the petitioner has been recorded with four years period and the different rent is also mentioned. The learned counsel has assailed the finding of the trial court as perverse and arbitrary.;