High Court · 2025

Petitioner :- Ashok Kumar And Others. Respondent :- State Of U.P.And Others. Counsel for Petitioner :- Nirmal Tewari,Mohammad Aslam Khan,Rakesh Kumar Srivastava Counsel for Respondent :- C.S.C.,Jai Shanker Misra Hon'ble Irshad Ali,J.

1. Heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Rakesh Kumar Srivastava, learned counsel for the petitioners and Sri Rajiv Srivastava, learned Additional Chief Standing Counsel for the State-respondent.

2. By means of the present writ petition, the petitioners have prayed for the following reliefs :- "(a) to issue a writ, order or direction in the nature of certiorari quashing the judgment and order dated 24.9.1996 passed by the Additional Commissioner, Faizabad Division, Faizabad, contained in Annexure-17 to the writ petition and the order dated 30.11.1981 passed by Prescribed Authority (Ceiling) Bahraich as contained in Annexure No.14 to the Writ Petition. (b) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to dispossess the petitioner from the land in question and further not to allot the said land in favour of any other person. (c)... (d)..."

3. Factual matrix of the case is that on 12.5.1976, a notice under section 10 (2) of the Act was issued to Jamuna Prasad, who filed objections before the Prescribed Authority. Vide order dated 30.8.1977, objections filed by Jamuna Prasad were dismissed and 10.88 acres of land was declared as surplus. Being aggrieved Jamuna Prasad filed an appeal before the District Judge which was allowed vide order dated 30.8.1977 and after setting aside the order dated 12.5.1976 passed by the prescribed authority, the matter was remanded to determine the issue of irrigated and unirrigatted land. Vide order dated 7.9.1977, the prescribed authority proceeded and decided the question and held that the land belongs to Jamuna Prasad. Against the said order, an appeal was filed, which was dismissed on 13.10.1977.

4. The petitioners being co-sharers, could not acquire the knowledge of the proceedings, hence they could not make an application for impleadment as well as objections as no notice has been given to Smt. Avadh Rai Kunwari under rule 8. On coming to know, Smt. Avadh Raj Kunwari filed objections, claiming herself to be a co-sharer to the extent of half and her holding was illegally clubbed with the holding of Jamuna Prasad. The said objections were filed under section 13-A alongwith an application under section 5 of Limitation Act, which was rejected vide order dated 29.5.1978.

5. Against the order dated 29.5.1978 passed by the prescribed authority, an appeal was filed by Smt. Avadh Raj Kunwari, which was dismissed vide order dated 14.8.1978. Smt. Avadh Raj Kunwari subsequently filed an objection under section 11 (2) of the Act which was dismissed by the prescribed authority vide order dated 28.3.1979 saying that the application under section 13-A of the Act had already been dismissed.

6. Being aggrieved by the said order, an appeal was filed by Smt. Avadh Rai Kunwari, which was dismissed vide judgment dated 19.7.1979. Being aggrieved by the orders passed by the District Judge and prescribed authority, Smt. Avadh Raj Kunwari filed Writ Petition No.2955 of 1979 which was allowed, the orders aforementioned were set aside and the prescribed authority was directed to restore the objections to its original number and entertain under section 11 (2) of the Act and to decide the same.

7. On remand, the prescribed authority again dismissed the objections vide order dated 30.4.1981.

8. Against the order dated 30.4.1981, an appeal was filed before the District Judge, Bahraich, which was allowed vide order dated 19.1.1981 and the prescribed authority was directed to decide the objections afresh on merits. Before the prescribed authority, the petitioners examined Saligram, Gaya Prasad and Ram Sunder so as to prove that the land in question was acquired by Ram Pagaras, common ancestor of the parties and thereafter, Rajit Ram, Durga Prasad and Sahaj Ram became co- owners but the name of Rajit Ram was only recorded in revenue records being the Karta of the family, although other co-sharers remained in possession jointly. After the death of Sahaj Ram, his widow, Smt. Avadh Raj Kunwari inherited his share. No evidence to the contrary was led by the State.

9. The prescribed authority again rejected the objections, after holding that Smt. Avadh Raj Kunwari is not a co-owner of the land in question, although the prescribed authority was directed to decide the objections on merit but he choose to decide the objections on merit as well as on the ground of delay vide order dated 30.11.1981.

10. Being aggrieved by the order 30.11.1981, an appeal was preferred which was rejected vide order dated 17.2.1982.

11. Being aggrieved, Smt. Avadh Rai Kunwari filed Writ Petition No.6040 of 1983 which was allowed and after setting aside the orders passed by the prescribed authority and the appellate authority, the matter was remanded to the District Judge to decide the appeal afresh. On remand, the appeal was heard by the Additional Commissioner and was dismissed vide order dated 24.9.1996.

12. Smt. Avadh Raj Kunwari filed her objections under section 11 (2) of the Act on the ground inter-alia that her holding had illegally been clubbed with the holding of Jamuna Prasad and had been declared as surplus, although, as a matter of fact, Ram Paragas was common ancestor of the parties and after his death, prior to the abolition of zamindari, his all 3 sons mentioned in the pedigree were co-sharers but the name of Rajit Ram, father of Jamuna Prasad was recorded as Karta, though the parties were in possession over their respective 1/3rd share. Smt. Avadh Raj Kunwari also led evidence to prove that a partition took place in between 3 sons but the share of Durga Prasad was only separated and rest 2/3rd belong to Rajit Ram and Sahaj Ram. An affidavit was also filed by Jamuna Prasad, son of Rajit Ram, admitting that Ram Pargas had three sons and each had 1/3rd share and after partition, they were in possession over their respective share.

13. Due to fire in the Record Room, entire records kept therein were burnt and the petitioners could not produce the relevant revenue records, recording the names of the sons of Ram Pagaras.

14. The courts below rejected the objections of Smt. Avadh Raj Kunwari on the ground inter-alia that in khatauni 1366-68 F. of Village, Tendwa Mahant as well as in khatauni 1366-70 F. of village, Bhagwanpur - Bankat as well as Bhumidhari Sanad issued in favour of Ram Sunder, son of Durga Prasad and CH Form 3 that the land of the aforesaid villages was not subject matter of determination of surplus land, hence the petitioners cannot be given co-tenancy rights, ignoring the fact that Rajit Ram, Durga Prasad and Sahaj Ram were born prior to abolition of zamindari.

15. Submission of learned counsel for the petitioners is that the learned courts below have further misread and misconstrued the khatauni 1348 F. of Village, Bhagwanpur Bankat, Bhumidhari Sanad dated 27.2.1950, khatauni extract of 1366-70 F. of Village, Bhagwanpur – Bankat, receipt of payment of land revenue and the extract of Parivar Register dated 12.7.1972 and held that Smt. Avadh Raj Kunwari will not get any share in the holding. Prior to the death of Smt. Avadh Raj Kunwari, she executed a Will on 6.9.1995 and after her death on 23.11.1996, the petitioners became her heirs and legal representatives.

16. It is submitted that the learned courts below further failed to consider the law propounded by this Court as well as Apex Court that mere non participation in the cultivation, a co-sharer would not be deprived of his legal share and further the possession of one co-sharer is possession on behalf of all, unless otherwise proved. The opposite parties further failed to draw a presumption of jointness of the property, unless evidence is led and proved that the property was not joint and has been acquired by a member of the family separately from his own funds. Jamuna Prasad, himself filed an affidavit, admitting the claim of the petitioners as co-sharers. The orders passed by the opposite party Nos.1 and 2 are thus not only illegal but also without jurisdiction, hence the same are liable to be set aside.

17. On the other hand, learned Standing Counsel submitted that both the respondent Nos.1 and 2 have not committed any illegality in passing the impugned orders, therefore, there is no scope of interference in exercise of power under Article 226 of the Constitution of India.

18. After having heard the rival submission of learned counsel for the parties, I perused the material on record.

19. The courts below have misread and misconstrued the khatauni 1348 fasli of Village, Bhagwanpur Bankat, Bhumidhari Sanad dated 27.2.1950, khatauni extract of 1366-70 fasli of Village, Bhagwanpur – Bankat, receipt of payment of land revenue and the extract of Parivar Register dated 12.7.1972 by holding that Smt. Avadh Raj Kunwari will not get any share in the holding. Prior to the death of Smt. Avadh Raj Kunwari, she executed a Will on 6.9.1995 and after her death on 23.11.1996, the petitioners became her heirs and legal representatives, therefore, due to non-consideration of aforesaid aspect of the matter, the impugned orders passed by the respondents suffer from apparent illegality and are liable to be set aside.

20. Learned courts below further failed to consider the law propounded by this Court as well as Apex Court that mere non- participation in the cultivation, a co-sharer would not be deprived of his legal share and further the possession of one co- sharer is possession on behalf of all, unless otherwise proved. The opposite parties further failed to draw a presumption of jointness of the property, unless evidence is led and proved that the property was not joint and has been acquired by a member of the family separately from his own funds. Jamuna Prasad, himself filed an affidavit, admitting the claim of the petitioners as co-sharers.

21. It is also reflected that Smt. Avadh Raj Kunwari filed her objections under section 11 (2) of the Act on the ground inter- alia that her holding had illegally been clubbed with the holding of Jamuna Prasad and had been declared as surplus, although, as a matter of fact, Ram Paragas was common ancestor of the parties and after his death, prior to the abolition of zamindari, his all 3 sons mentioned in the pedigree were co-sharers but the name of Rajit Ram, father of Jamuna Prasad was recorded as Karta, though the parties were in possession over their respective 1/3rd share. Smt. Avadh Raj Kunwari also led evidence to prove that a partition took place in between 3 sons but the share of Durga Prasad was only separated and rest 2/3rd belong to Rajit Ram and Sahaj Ram. An affidavit was also filed by Jamuna Prasad, son of Rajit Ram, admitting that Ram Pargas had three sons and each had 1/3rd share and after partition, they were in possession over their respective share. This important aspect of the matter was also not taken care of while passing the impugned order. The courts below have also failed to take into consideration that due to fire in the Record Room, entire records kept therein were burnt and the petitioners could not produce the relevant revenue records, recording the names of the sons of Ram Pagaras.

22. On perusal of the record, it is also evident that the courts below rejected the objections of Smt. Avadh Raj Kunwari on the ground that in khatauni 1366-68 fasli of Village, Tendwa Mahant as well as in khatauni 1366-70 fasli of village, Bhagwanpur - Bankat as well as Bhumidhari Sanad issued in favour of Ram Sunder, son of Durga Prasad and CH Form 3 that the land of the aforesaid villages was not subject matter of determination of surplus land, hence the petitioners cannot be given co-tenancy rights, ignoring the fact that Rajit Ram, Durga Prasad and Sahaj Ram were born prior to abolition of zamindari. This aspect was also not taken into consideration by the courts below, thus the impugned orders suffer from apparent illegality and are liable to be set aside.

23. The matter in question was remanded back by passing an order in the Writ Petition No.6040 of 1983 which was allowed and after setting aside the orders passed by the prescribed authority and the appellate authority were set aside and the matter was remanded to the District Judge to decide the appeal afresh, which was dismissed without considering the relevant material on record, therefore, the order, on that count also, is illegal.

24. On overall consideration, it is found that the impugned orders do not consider the claim setup by the parties, therefore, they are wholly illegal and are liable to be set aside.

25. In view of the above facts and circumstances of the case, the writ petition deserves to be allowed and is hereby allowed. The impugned order dated 30.11.1981 (Annexure-14) and order dated 24.9.1996 (Annexure-17 to the writ petition) are hereby quashed.

26. The matter is remanded back to the appellate authority to consider the claim setup by the petitioners afresh after affording fullest opportunity of hearing. It is however, made clear that the case will not be rejected on technical grounds and it will be decided on merits. Order Date :- 29.5.2025 Gautam GAUTAM TECKCHANDANI High Court of Judicature at Allahabad, Lucknow Bench

Petitioner :- Ashok Kumar And Others. Respondent :- State Of U.P.And Others. Counsel for Petitioner :- Nirmal Tewari,Mohammad Aslam Khan,Rakesh Kumar Srivastava Counsel for Respondent :- C.S.C.,Jai Shanker Misra Hon'ble Irshad Ali,J.

1. Heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Rakesh Kumar Srivastava, learned counsel for the petitioners and Sri Rajiv Srivastava, learned Additional Chief Standing Counsel for the State-respondent.

2. By means of the present writ petition, the petitioners have prayed for the following reliefs :- "(a) to issue a writ, order or direction in the nature of certiorari quashing the judgment and order dated 24.9.1996 passed by the Additional Commissioner, Faizabad Division, Faizabad, contained in Annexure-17 to the writ petition and the order dated 30.11.1981 passed by Prescribed Authority (Ceiling) Bahraich as contained in Annexure No.14 to the Writ Petition. (b) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to dispossess the petitioner from the land in question and further not to allot the said land in favour of any other person. (c)... (d)..."

3. Factual matrix of the case is that on 12.5.1976, a notice under section 10 (2) of the Act was issued to Jamuna Prasad, who filed objections before the Prescribed Authority. Vide order dated 30.8.1977, objections filed by Jamuna Prasad were dismissed and 10.88 acres of land was declared as surplus. Being aggrieved Jamuna Prasad filed an appeal before the District Judge which was allowed vide order dated 30.8.1977 and after setting aside the order dated 12.5.1976 passed by the prescribed authority, the matter was remanded to determine the issue of irrigated and unirrigatted land. Vide order dated 7.9.1977, the prescribed authority proceeded and decided the question and held that the land belongs to Jamuna Prasad. Against the said order, an appeal was filed, which was dismissed on 13.10.1977.

4. The petitioners being co-sharers, could not acquire the knowledge of the proceedings, hence they could not make an application for impleadment as well as objections as no notice has been given to Smt. Avadh Rai Kunwari under rule 8. On coming to know, Smt. Avadh Raj Kunwari filed objections, claiming herself to be a co-sharer to the extent of half and her holding was illegally clubbed with the holding of Jamuna Prasad. The said objections were filed under section 13-A alongwith an application under section 5 of Limitation Act, which was rejected vide order dated 29.5.1978.

5. Against the order dated 29.5.1978 passed by the prescribed authority, an appeal was filed by Smt. Avadh Raj Kunwari, which was dismissed vide order dated 14.8.1978. Smt. Avadh Raj Kunwari subsequently filed an objection under section 11 (2) of the Act which was dismissed by the prescribed authority vide order dated 28.3.1979 saying that the application under section 13-A of the Act had already been dismissed.

6. Being aggrieved by the said order, an appeal was filed by Smt. Avadh Rai Kunwari, which was dismissed vide judgment dated 19.7.1979. Being aggrieved by the orders passed by the District Judge and prescribed authority, Smt. Avadh Raj Kunwari filed Writ Petition No.2955 of 1979 which was allowed, the orders aforementioned were set aside and the prescribed authority was directed to restore the objections to its original number and entertain under section 11 (2) of the Act and to decide the same.

7. On remand, the prescribed authority again dismissed the objections vide order dated 30.4.1981.

8. Against the order dated 30.4.1981, an appeal was filed before the District Judge, Bahraich, which was allowed vide order dated 19.1.1981 and the prescribed authority was directed to decide the objections afresh on merits. Before the prescribed authority, the petitioners examined Saligram, Gaya Prasad and Ram Sunder so as to prove that the land in question was acquired by Ram Pagaras, common ancestor of the parties and thereafter, Rajit Ram, Durga Prasad and Sahaj Ram became co- owners but the name of Rajit Ram was only recorded in revenue records being the Karta of the family, although other co-sharers remained in possession jointly. After the death of Sahaj Ram, his widow, Smt. Avadh Raj Kunwari inherited his share. No evidence to the contrary was led by the State.

9. The prescribed authority again rejected the objections, after holding that Smt. Avadh Raj Kunwari is not a co-owner of the land in question, although the prescribed authority was directed to decide the objections on merit but he choose to decide the objections on merit as well as on the ground of delay vide order dated 30.11.1981.

10. Being aggrieved by the order 30.11.1981, an appeal was preferred which was rejected vide order dated 17.2.1982.

11. Being aggrieved, Smt. Avadh Rai Kunwari filed Writ Petition No.6040 of 1983 which was allowed and after setting aside the orders passed by the prescribed authority and the appellate authority, the matter was remanded to the District Judge to decide the appeal afresh. On remand, the appeal was heard by the Additional Commissioner and was dismissed vide order dated 24.9.1996.

12. Smt. Avadh Raj Kunwari filed her objections under section 11 (2) of the Act on the ground inter-alia that her holding had illegally been clubbed with the holding of Jamuna Prasad and had been declared as surplus, although, as a matter of fact, Ram Paragas was common ancestor of the parties and after his death, prior to the abolition of zamindari, his all 3 sons mentioned in the pedigree were co-sharers but the name of Rajit Ram, father of Jamuna Prasad was recorded as Karta, though the parties were in possession over their respective 1/3rd share. Smt. Avadh Raj Kunwari also led evidence to prove that a partition took place in between 3 sons but the share of Durga Prasad was only separated and rest 2/3rd belong to Rajit Ram and Sahaj Ram. An affidavit was also filed by Jamuna Prasad, son of Rajit Ram, admitting that Ram Pargas had three sons and each had 1/3rd share and after partition, they were in possession over their respective share.

13. Due to fire in the Record Room, entire records kept therein were burnt and the petitioners could not produce the relevant revenue records, recording the names of the sons of Ram Pagaras.

14. The courts below rejected the objections of Smt. Avadh Raj Kunwari on the ground inter-alia that in khatauni 1366-68 F. of Village, Tendwa Mahant as well as in khatauni 1366-70 F. of village, Bhagwanpur - Bankat as well as Bhumidhari Sanad issued in favour of Ram Sunder, son of Durga Prasad and CH Form 3 that the land of the aforesaid villages was not subject matter of determination of surplus land, hence the petitioners cannot be given co-tenancy rights, ignoring the fact that Rajit Ram, Durga Prasad and Sahaj Ram were born prior to abolition of zamindari.

15. Submission of learned counsel for the petitioners is that the learned courts below have further misread and misconstrued the khatauni 1348 F. of Village, Bhagwanpur Bankat, Bhumidhari Sanad dated 27.2.1950, khatauni extract of 1366-70 F. of Village, Bhagwanpur – Bankat, receipt of payment of land revenue and the extract of Parivar Register dated 12.7.1972 and held that Smt. Avadh Raj Kunwari will not get any share in the holding. Prior to the death of Smt. Avadh Raj Kunwari, she executed a Will on 6.9.1995 and after her death on 23.11.1996, the petitioners became her heirs and legal representatives.

16. It is submitted that the learned courts below further failed to consider the law propounded by this Court as well as Apex Court that mere non participation in the cultivation, a co-sharer would not be deprived of his legal share and further the possession of one co-sharer is possession on behalf of all, unless otherwise proved. The opposite parties further failed to draw a presumption of jointness of the property, unless evidence is led and proved that the property was not joint and has been acquired by a member of the family separately from his own funds. Jamuna Prasad, himself filed an affidavit, admitting the claim of the petitioners as co-sharers. The orders passed by the opposite party Nos.1 and 2 are thus not only illegal but also without jurisdiction, hence the same are liable to be set aside.

17. On the other hand, learned Standing Counsel submitted that both the respondent Nos.1 and 2 have not committed any illegality in passing the impugned orders, therefore, there is no scope of interference in exercise of power under Article 226 of the Constitution of India.

18. After having heard the rival submission of learned counsel for the parties, I perused the material on record.

19. The courts below have misread and misconstrued the khatauni 1348 fasli of Village, Bhagwanpur Bankat, Bhumidhari Sanad dated 27.2.1950, khatauni extract of 1366-70 fasli of Village, Bhagwanpur – Bankat, receipt of payment of land revenue and the extract of Parivar Register dated 12.7.1972 by holding that Smt. Avadh Raj Kunwari will not get any share in the holding. Prior to the death of Smt. Avadh Raj Kunwari, she executed a Will on 6.9.1995 and after her death on 23.11.1996, the petitioners became her heirs and legal representatives, therefore, due to non-consideration of aforesaid aspect of the matter, the impugned orders passed by the respondents suffer from apparent illegality and are liable to be set aside.

20. Learned courts below further failed to consider the law propounded by this Court as well as Apex Court that mere non- participation in the cultivation, a co-sharer would not be deprived of his legal share and further the possession of one co- sharer is possession on behalf of all, unless otherwise proved. The opposite parties further failed to draw a presumption of jointness of the property, unless evidence is led and proved that the property was not joint and has been acquired by a member of the family separately from his own funds. Jamuna Prasad, himself filed an affidavit, admitting the claim of the petitioners as co-sharers.

21. It is also reflected that Smt. Avadh Raj Kunwari filed her objections under section 11 (2) of the Act on the ground inter- alia that her holding had illegally been clubbed with the holding of Jamuna Prasad and had been declared as surplus, although, as a matter of fact, Ram Paragas was common ancestor of the parties and after his death, prior to the abolition of zamindari, his all 3 sons mentioned in the pedigree were co-sharers but the name of Rajit Ram, father of Jamuna Prasad was recorded as Karta, though the parties were in possession over their respective 1/3rd share. Smt. Avadh Raj Kunwari also led evidence to prove that a partition took place in between 3 sons but the share of Durga Prasad was only separated and rest 2/3rd belong to Rajit Ram and Sahaj Ram. An affidavit was also filed by Jamuna Prasad, son of Rajit Ram, admitting that Ram Pargas had three sons and each had 1/3rd share and after partition, they were in possession over their respective share. This important aspect of the matter was also not taken care of while passing the impugned order. The courts below have also failed to take into consideration that due to fire in the Record Room, entire records kept therein were burnt and the petitioners could not produce the relevant revenue records, recording the names of the sons of Ram Pagaras.

22. On perusal of the record, it is also evident that the courts below rejected the objections of Smt. Avadh Raj Kunwari on the ground that in khatauni 1366-68 fasli of Village, Tendwa Mahant as well as in khatauni 1366-70 fasli of village, Bhagwanpur - Bankat as well as Bhumidhari Sanad issued in favour of Ram Sunder, son of Durga Prasad and CH Form 3 that the land of the aforesaid villages was not subject matter of determination of surplus land, hence the petitioners cannot be given co-tenancy rights, ignoring the fact that Rajit Ram, Durga Prasad and Sahaj Ram were born prior to abolition of zamindari. This aspect was also not taken into consideration by the courts below, thus the impugned orders suffer from apparent illegality and are liable to be set aside.

23. The matter in question was remanded back by passing an order in the Writ Petition No.6040 of 1983 which was allowed and after setting aside the orders passed by the prescribed authority and the appellate authority were set aside and the matter was remanded to the District Judge to decide the appeal afresh, which was dismissed without considering the relevant material on record, therefore, the order, on that count also, is illegal.

24. On overall consideration, it is found that the impugned orders do not consider the claim setup by the parties, therefore, they are wholly illegal and are liable to be set aside.

25. In view of the above facts and circumstances of the case, the writ petition deserves to be allowed and is hereby allowed. The impugned order dated 30.11.1981 (Annexure-14) and order dated 24.9.1996 (Annexure-17 to the writ petition) are hereby quashed.

26. The matter is remanded back to the appellate authority to consider the claim setup by the petitioners afresh after affording fullest opportunity of hearing. It is however, made clear that the case will not be rejected on technical grounds and it will be decided on merits. Order Date :- 29.5.2025 Gautam GAUTAM TECKCHANDANI High Court of Judicature at Allahabad, Lucknow Bench