PETITIONER: RAJESHWAR Vs. RESPONDENT: BOARD OF REVENUE DATE OF JUDGMENT15/11/1994 BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) AHMADI A.M. (CJ) CITATION: 1995 SCC (1) 339 JT 1994 (7) 440 1994 SCALE (4)956 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
B.P JEEVAN REDDY, J.- The appeal is preferred against the
judgment of a learned Single Judge of the Allahabad High
Court dismissing the writ petition filed by the petitioners.
2. One Todar Mal had three sons-Lekhi Ram, Attar Singh and
Murari Lal. Lekhi Ram died in 1953. He had no sons. He
left behind his wife Anandi Devi and a daughter Shanti Devi.
In the year 1943, Lekhi Ram and Attar Singh (who too did not
have any sons) executed a will in respect of their joint
family properties in favour of Murari Lal. Disputes arose
between Anandi Devi and Murari Lal soon after the death of
Lekhi Ram in 1953. While the dispute was pending before the
Panchayat Adalat Niwadi, District Meerut (in Case Nos. 31/1
and 31/2 of 1983) a settlement was arrived at between Anandi
Devi and Murari Lal, which was reduced to writing on 18-7-
1953 and filed before the Panchayat Adalat. The
memo/application filed by the parties reads as follows:
“In the above case, we, both the parties have
made mutual compromise. Both parties will
abide by it and hence would have no objection.
The decision is as under:
The property assigned to Smt Anandi : 3258
—-
2111/2
309
—
31/8 Khewat/100
Khewat 97 3361 3362 Khewat 26
—- —-
8111/8 911
643 668 742 812 2734 292782 2924
— — — — —- —— —-
111/1 1/1 1/ 1/ 111/ 111/ 1/
Khewat No. 48 solely belongs to Smt Anandi
which Lekhi Ram purchased by sale deed and
Anandi has right upon them.
Out of ancestral Khewat No. 107 which was
willed by Lekhi Ram in favour of Murari Lal, 4
numbers were given to Anandi by Murari Lal.
The one Khata whose boundaries as under
176/111/1 3022/1/1 306/2/4 1008/11 Khewat 107
boundaries bazar in the East, in West with Ch.
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Jaghir Singh and Bishambar in the North
courtyard and pathway South ahata Chandra
Swarup and Khewat 72 was obtained by Lekhi Ram
by sale deed. Except for these 4 numbers, the
property in favour of Murari Lal in the
remaining part of the will consists of Khewat
97, 93, 107, 143, 16, 228, 247, 125 and 126
and out of 2923/1/4 fourth biswa is that of
Anandi.
TI of Anandi
18-7-1953
Sd/
Murari Lal”
3. By an order dated 14-9-1953 the Panchayat Adalat
disposed of the aforesaid cases in terms of the said
compromise. The order of the Panchayat Adalat reads thus:
“After his death a dispute arose about the
property of Lekhi Ram son of Todar Mal. One
application was filed for transfer Entry 31/1
by Smt Anandi, widow of Lekhi Ram. The other
application 31/2 was filed in 1953 by Murari
Lal, brother of Lekhi Ram. Both the parties
describe themselves as heirs of Lekhi Ram.
File has been prepared but parties have
reached a compromise which is decreed. Murari
Lal has filed a will dated 20-11-1943 which is
a registered will of Lekhi Ram and Attar
Singh. A perusal of will shows the share of
late Lekhi Ram in Khewat Nos. 93 and 97, 107,
143, and 16, 128, 247, 125, 126 and the house.
These were acquired by Murari Lal after demise
of Lekhi Ram. Besides this there is
residential and agricultural landed property
of Lekhi Ram which is self-acquired which is
apart from the will and Anandi is the
permanent owner of these properties. They are
now relatives and they do not have any
litigation in future. Therefore Murari Lal
who is owner of 176/111/4, 3022/19, 306/2/4
and 1008/9, Khewat 107 and the house bounded
by bazar in East, house of Raghubir Singh in
the West, courtyard and public way in the
North and ahata Chandra Swarup in the South
has given the same to Smt Anandi. Smt Anandi
has no connection with the remaining property
willed by Lekhi Ram by deed dated 20-11-1943.
Murari Lal has no claim over the self-acquired
property of Lekhi Ram which is not part of the
will. The parties have taken possession of
their shares by compromise. Therefore both
the applications are decided with the consent
of the parties.
Sd/-
Seal Adalat Panchayat
Chiranji Lal Sarpanch.”
4. On 5-4-1954 Anandi Devi executed a deed of gift in
respect of her properties in favour of the appellants who
are the sons of her daughter Shanti Devi. The execution of
this gift deed gave rise to a fresh round of litigation
between Murari Lal on one side and Anandi Devi and her
grandsons (appellants herein) on the other. This dispute
came to be disposed of by an
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order dated 1 8-1-1957 passed by the Additional Collector,
Meerut. It was an appeal preferred by the appellants
against the orders of Tehsildar and Assistant Collector,
Ghaziabad directing that Anandi Devi should be recorded as
an ‘asami’ during her lifetime. The contention of Murari
Lal was that Anandi Devi had only a life interest whereas
the case of tile appellants and Anandi Devi was that she had
all absolute title to tile properties mentioned in the
aforesaid memo of compromise. The Additional Collector
decided that the said question shall be left open for being
agitated after the death of Anandi Devi to which course
counsel for both the parties agreed. The concluding
paragraph of the Additional Collector’s order reads as
follows:
“The result is that in view of my finding, the
above appeal is allowed and Tehsildar’s order
is set aside. The ‘Tehsildar is directed to
enter the names of Rajeshwar and Brijeshwar-
appellants on the disputed plots including the
three plots as corrected as bhumidhar in place
of Smt Anandi Devi for her lifetime. The
question of mutation after her lifetime will
remain open for reconsideration.”
5. In the year 1968, a notification was issued Linder the
provisions of the U.P. Consolidation of Holdings Act, 1953
in respect of the said village. Certain proceedings took
place between Anandi Devi and Murari Lal Linder the said Act
but these disputes, it appears, related to only some of the
lands. Murari’s case was that the name of Anandi Devi was
wrongly recorded in respect of certain of his lands, which
he wanted to be rectified. In these proceedings copies of
compromise memo, judgment of the Panchayat Adalat and the
will executed by Lekhi Ram and Attar Singh in favour of
Murari Lal (1943) were filed. The Consolidation Officer
directed that the entries should be made in accordance with
the terms of the compromise memo and that ally entries to
the contrary should be rectified.
6. Anandi Devi died in the year 1980. Murari Lal applied
to the Tehsildar to mutate the lands in the name of Anandi
Devi in his name on the basis that Anandi Devi had only a
life interest in those lands. The Tehsildar directed Murari
Lal to obtain a declaration in a regular suit. Accordingly
Murari Lal filed the suit (out of which the present
proceedings arise) under Section 229-B of the U.P. Zamindari
Abolition and Lands Reforms Act. The appellants contested
the same and raised a preliminary objection to the
maintainability of the suit. The Revenue Court framed two
preliminary issues on the basis of the said objections. The
two ‘issues are:
“Issue 1. Whether the suit is maintainable in
view of the change of
identify of the land in suit due to
consolidation proceedings?
Issue 2. Whether the Suit Is barred by Section
49 of the U.PC.H.Act.”
7. The trial court decided the issues against tile
plaintiff Murari Lal. Accordingly, he dismissed the suit on
23-8-1982. An appeal preferred by Murari Lal was dismissed
by the Commissioner, Meerut on 14-11-1982. Murari Lal
carried the matter in second appeal to the Board of Revenue
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which allowed it. The Board of Revenue held the suit to be
maintainable and accordingly remitted the matter to the
trial court to try the suit on merits. The order of the
Board of Revenue was questioned by the appellants in the
Allahabad High Court in Writ Petition No. 12678 of 1985
which has been dismissed by the learned Single Judge under
the impugned order.
8. Shri Sanyal, learned counsel for the appellants
submitted that the memo of compromise dated 13-7-1953 makes
it clear that so far as the separate properties of Lekhi Ram
were concerned, they were admitted to be the exclusive
property of Anandi Devi and so far as the joint family
properties of Lekhi Ram, which were willed away by him to
Murari Lal are concerned, Murari Lal gave four plots out of
them to Anandi Devi absolutely. Thus, says the teamed
counsel, all the properties in possession of Anandi Devi
were her absolute properties which passed to the appellants
under the deed of gift executed by her. He, therefore,
submitted that the High Court as well as the Board of
Revenue were in error in holding that according to the
aforesaid memo of compromise or the orders of the
authorities passed thereafter, Anandi Devi had only a life
interest in the said properties. The learned counsel for
the respondent Murari Lal, however, supported the reasoning
and conclusion of the Board of Revenue and the High Court.
9. The memo of compromise is really in two paragraphs. The
first paragraph deals with the separate properties of Lekhi
Ram. It recites that the properties mentioned in the said
para, which were purchased by Lekhi Ram under sale deed, are
the properties of Smt Anandi Devi ‘solely’ and that she has
right upon them. The second para deals with what it calls
the ancestral properties of Lekhi Ram which were willed in
favour of Murari Lal. Out of these lands, four numbers,
specified in the said para were given by Murari Lal to
Anandi Devi. (They are- 1765/111/1, 3022/1/1, 306/2/4, 1
008/1 1 and a house.) The learned counsel for the appellants
is probably right in pointing out that there are no words in
this compromise memo to the effect that the interest of
Anandi Devi shall only be a life interest. In fact any
ambiguity in the language of this compromise memo, says the
counsel, is cleared by the judgment of the Panchayat Adalat
dated 14-9-1953. The order states that Lekhi Ram had
certain self-acquired properties of his own, of which Anandi
Devi shall be the permanent owner. The judgment further
records that out of the lands willed by Lekhi Ram in favour
of Murari Lal, four items of land and a house (boundaries of
which were given in the order) have been given to Smt Anandi
Devi and that the latter shall have no connection with the
remaining properties willed by Lekhi Ram and similarly
Murari Lal shall have no claim over the self-acquired
properties of Lekhi Ram, which were not the subject-matter
of the will. The judgment undoubtedly records that parties
have taken possession of their respective shares in
accordance with the compromise between them. But these are
the merits of the dispute which are yet to be gone into.
10. So far as the order of Additional Collector, Meerut
dated IS- 1 – 1951 is concerned, it keeps the question
concerning the nature of Anandi Devi’s
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interest open. The order expressly says that the said
question can be agitated after the death of Anandi Devi.
Insofar as the order of the Consolidation Officer is
concerned it is evident that it does not deal with the
nature and character of Anandi’s interest in the said
properties. Anandi Devi was alive at that time and the
dispute as to the nature of her interest was to be raised
only after her lifetime as per the order of the Additional
Collector referred to above and to which course both the
parties had agreed. Be that as it may, the order of the
Consolidation Authority does not show that the said question
was gone into or pronounced upon by it in the said order.
It is on these facts that the questions at issue have to be
decided. Of the two preliminary issues, the first one
raises the question whether the suit is maintainable in view
of the change of identity of the suit lands due to
consolidation proceedings. We do not think that the change
of identity of the lands in the course of consolidation
proceedings has any effect upon the rights of the parties.
It would only be a case of substitution of one property for
the other. The title in the previous property gets attached
to the substituted property. The second issue raises the
question whether the present suit is barred by Section 49 of
the U.P. Consolidation of Holdings Act. Section 49 reads as
follows:
“49. Bar to civil jurisdiction.-
Notwithstanding anything contained in any
other law for the time being in force, the
declaration and adjudication of rights of
tenure-holders 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 rights 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.”
11. We are of the opinion that there is no occasion for the
bar in Section 49 coming into play in this case, as rightly
pointed out by the High Court in the impugned judgment. As
pointed out hereinabove, the nature of Anandi Devi’s
interest in the suit properties was not (sic decided under)
the Consolidation Act. Only certain errors were rectified
to accord with the compromise. Further since Anandi Devi
was alive at that time it cannot also be said that the said
question ought to have gone into in those proceedings. For
the above reasons it must be held that the suit could not
have been dismissed as not maintainable on the basis of the
aforesaid two preliminary issues. The appeal accordingly
fails and is dismissed. There shall be no order as to
costs.
12. It is unfortunate that this litigation is going on over
the last forty years and the end is still not in sight. We
expect the authorities, which are seized of the dispute to
give it an expeditious disposal.
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