Ikhtedar Husain And Others vs Board Of Revenue U.P. Prayagraj Thru. Member

7, stands disposed of.

4. By means of present writ petition the petitioners have challenged the order dated 10.02.2011, passed by the Commissioner, Faizabad Division, Faizabad in Appeal No. 642/111/Barabanki under Section 331 of U.P. Z.A. & L.R. Act, 1950, as well as order dated 10.07.2025, passed by the Board of Revenue, U.P. Lucknow in Case No. REV/14/2010- 2011/Barabanki, thereby rejecting the revision preferred by the petitioners against order dated 10.02.2011.

5. It has been submitted by learned counsel for the petitioners that the dispute in the present case pertains to succession of the property of 2 WRIB No. 939 of 2025 common ancestor of the parties namely Imdad Hussain. It is submitted that Imdad Hussain was married to Smt. Musliman and also cohabited with another lady namely Imtiyazan. The petitioners claim succession on the ground that they are successors of their predecessor in interest Imdad Hussain and Musaliman, while respondents claim succession on the basis of being successor in interest of Imtiyazan.

6. It is next submitted by learned counsel for the petitioners that a settlement deed was arrived at between Iftikhar Husain, Tasaddukh Husain, Tasauwaar Husain and their mother Imtiyazan on 08.10.1942 and property of Imdad Hussain was duly partitioned between the children of Imtiyazan and Musaliman. Certain properties were transferred to the successor in interest of Imtiyazan while remaining properties were transferred in favour of successors in interest of Musaliman.

7. It is further submitted by learned counsel for the petitioners predecessor in interest of petitioners namely Iftikar Hussain had filed two suits for permanent injunction against Tajammul Husain (father of respondent no. 4), Waseem Husain (father of respondent no. 5 and 6) and respondent no. 3 before the Civil Court, Barabanki which were registered as Original Suit No. 38/82 and Original Suit No. 47/82. It is submitted that initially the suits were dismissed by common judgment dated 28.02.1986 and hence two separate appeals were filed which were allowed by the Second Additional District Judge, Barabanki by means of judgment and order dated 28.05.1987. According to the petitioners the appeals were allowed returning a finding about existence of registered settlement deed dated

08.10.1942 and has further submitted that order of Additional District Judge, Barabanki dated 28.05.1987 were never challenged by the respondents and the findings recorded therein became final.

8. It is in the aforesaid circumstances, that the respondents had also filed suit under Section 229-B of the Consolidation of Holdings Act stating that certain properties which were recorded in the name of petitioners ought to have been jointly recorded in the name of petitioners as well as respondents, as the plaintiffs therein have right to succeed over the property of common ancestor namely Imdad Hussain. The petitioners has put in appearance before the Sub Divisional Magistrate, Haidergarh, 3 WRIB No. 939 of 2025 Barabanki and opposed the suit proceedings. The trial Court dismissed the suit by means of judgment and order dated 06.07.2007, on the ground that it was barred by the provisions of Section 49 of the Consolidation of Holdings Act and that the plaintiffs therein had not made any valid claim during consolidation proceedings and after conclusion of the same, such proceedings cannot be initiated.

9. The respondents being aggrieved by judgment and order dated

06.07.2007, preferred an appeal before the Commissioner, Faizabad Division, Faizabad. The appellate authority allowed the appeal by means of judgment and order dated 10.02.2011 and remanded he matter back to the trial Court after formulating two questions pertaining to re- examination of the objections pertaining to invocation of Section 49 of the Consolidation of Holdings Act as well as existence of family settlement dated 18.09.1942. Order dated 10.02.2011 was subjected to revision before the Board of Revenue which was also rejected by means of order dated 10.07.2025. In the present petition orders dated 10.02.2011 and 10.07.2025 have been assailed by the petitioners.

10. Learned counsel for the petitioners has submitted that perusal of order of trial Court would indicate that no evidence was led by the plaintiffs/respondents in support of their claim and they have only filed few documents including land records pertaining to Fasli 1388 to 1393 and certain receipts and notice issued under Section 80 CPC as well as notice under Section 106 of the Panchayati Raj Act. It is submitted that even if such evidence was duly considered, the suit proceedings could not have concluded in favour of the respondents and therefore submits that the judgment of the trial Court cannot be materially altered by remanding the matter back and submits that it is a futile exercise and this Court in exercise of powers under Articles 226-227 of the Constitution of India should interfere in the present case and set aside the impugned orders.

11. Learned counsel for the respondents on the other hand has opposed the writ petition. He has submitted that perusal of the order of trial Court would indicate that all the contentions of the parties have been duly recorded but no finding has been returned with regard to the evidence lead by the plaintiffs-respondents and only on the ground of maintainability 4 WRIB No. 939 of 2025 the suit has been rejected. He further submits that once suit has been rejected on the ground of maintainability then there was no occasion for the trial Court to have adverted to the submissions on merit made during suit proceedings while the appellate Court had itself questioned the validity of the trial Court's order dismissing the suit on the ground of being hit by the provisions of Section 49 of the Consolidation of Holdings Act, 1953 (hereinafter referred to as "the Act, 1953") and have directed the trial Court to examine the issue pertaining to of provisions of Section 49 of the Act, 1953, inasmuch as the appellate Court as well as the revisional Court, certain basic ingredients/facts have to be established, before the trial Court could reject the suit being hit by Section 49 of the Act, 1953, and accordingly submits that there is no infirmity in the appellate order as well as revisional order and prays for dismissal of the writ petition. It is further submitted that the property all along was recorded in the name of Iftikar Hussain, but it was jointly possessed and owned by both the parties.

12. Heard learned counsel for the parties and perused the record.

13. It is according to both the parties that the property in dispute belongs to their common ancestor namely Imdad Hussain, who had two wives. The petitioners claim to be sons of legally wedded wife namely Musliman being her successor interest, while private respondents claim succession on the basis of being successor in interest of other wife namely Imtiyazan.

14. This Court finds that according to the petitioners settlement deed was entered into between the parties which included Iftikar Hussain who was successor in interest of Musliman while on the other hand Imtiyazan, Tasadduk, Tassaur were party to the deed.

15. It is contended by the petitioners that all the properties of Imdad Hussain stood transferred to both the sections of successors in interest, but dispute in the present case has been initiated by the private respondents who have filed suit under Section 229B claiming that certain properties which are recorded in the names of petitioners should have been recorded jointly in the name of petitioners and private respondents. 5 WRIB No. 939 of 2025

16. The trial Court has dismissed the suit only on the ground that same is hit by the provisions of Section 49 of the Act of 1953. Undoubtedly respective arguments of the parties were noticed by the trial Court, but did not proceed to examine any of the facts or evidence produced before it and rejected the suit on the ground of maintainability being hit by the provisions of Section 49 of the Consolidation of Holdings Act.

17. This Court finds that the appellate Court has rightly considered the aspect of the matter and held that before invocation of provisions of Section 49, entire facts should have been duly enquired into by the trial Court and this aspect of the matter which has been canvassed by the private respondents with regard to joint ownership and possession of the property should have been looked into and in case, any case is made out with regard to joint ownership and possession then certainly case could be made out for not filing objections under Section 49 of the Act, 1953 and consequently, this aspect of the matter should have been considered and accordingly Section 49 of the Act, 1953 in such circumstances, would not be an obstruction in entertaining the suit filed by the private respondents.

18. The appellate Court further considered the grounds raised by the petitioners that the suit stood concluded when joint family settlement was entered into on 18.09.1942. The appellate Court was of the view that in case this aspect of the matter was looked into by the trial Court then, the matter could have been concluded on merits also and accordingly these two aspects of the matter have been remanded to the trial Court.

19. The revisional Court has concurred with the opinion and findings recorded by the appellate Court. Considering the aforesaid reasons this Court do not find any infirmity in the same. It is the case of the petitioners themselves that the property stood partitioned between two sections, but this aspect of the matter has not been gone into by the trial Court and it has not exercised the jurisdiction vested in it and merely rejected the plaint on the ground of maintainability.

20. With regard to invocation of Section 49, this Court do not find any infirmity in the findings recorded by the appellate Court, to the extent that the the trial Court should have looked into the grounds raised by the 6 WRIB No. 939 of 2025 plaintiffs with regard to joint ownership and possession of the property, even though the property was recorded in the name of Iftikar Hussain who was successor in interest of Imdad Hussain. Certainly on these two issues when the matter has been remanded, and in the remand proceedings the parties would be at liberty to adduce further evidence and matter ought to be decided by the trial Court considering the parameters laid down by the appellate as well as revisional Courts.

21. Accordingly, this Court do not find any ground for interference in the matter, hence present writ petition stands dismissed.

22. However, the trial Court shall proceed and decided the suit with expedition. The parties would be at liberty to file any fresh material and evidence they wish to file, within next four weeks before the trial Court and the trial Court would conclude the proceedings within three months thereafter, after giving full opportunity of hearing to all the parties. October 6, 2025 A. Verma (Alok Mathur,J.) ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench

7, stands disposed of.

4. By means of present writ petition the petitioners have challenged the order dated 10.02.2011, passed by the Commissioner, Faizabad Division, Faizabad in Appeal No. 642/111/Barabanki under Section 331 of U.P. Z.A. & L.R. Act, 1950, as well as order dated 10.07.2025, passed by the Board of Revenue, U.P. Lucknow in Case No. REV/14/2010- 2011/Barabanki, thereby rejecting the revision preferred by the petitioners against order dated 10.02.2011.

5. It has been submitted by learned counsel for the petitioners that the dispute in the present case pertains to succession of the property of 2 WRIB No. 939 of 2025 common ancestor of the parties namely Imdad Hussain. It is submitted that Imdad Hussain was married to Smt. Musliman and also cohabited with another lady namely Imtiyazan. The petitioners claim succession on the ground that they are successors of their predecessor in interest Imdad Hussain and Musaliman, while respondents claim succession on the basis of being successor in interest of Imtiyazan.

6. It is next submitted by learned counsel for the petitioners that a settlement deed was arrived at between Iftikhar Husain, Tasaddukh Husain, Tasauwaar Husain and their mother Imtiyazan on 08.10.1942 and property of Imdad Hussain was duly partitioned between the children of Imtiyazan and Musaliman. Certain properties were transferred to the successor in interest of Imtiyazan while remaining properties were transferred in favour of successors in interest of Musaliman.

7. It is further submitted by learned counsel for the petitioners predecessor in interest of petitioners namely Iftikar Hussain had filed two suits for permanent injunction against Tajammul Husain (father of respondent no. 4), Waseem Husain (father of respondent no. 5 and 6) and respondent no. 3 before the Civil Court, Barabanki which were registered as Original Suit No. 38/82 and Original Suit No. 47/82. It is submitted that initially the suits were dismissed by common judgment dated 28.02.1986 and hence two separate appeals were filed which were allowed by the Second Additional District Judge, Barabanki by means of judgment and order dated 28.05.1987. According to the petitioners the appeals were allowed returning a finding about existence of registered settlement deed dated

08.10.1942 and has further submitted that order of Additional District Judge, Barabanki dated 28.05.1987 were never challenged by the respondents and the findings recorded therein became final.

8. It is in the aforesaid circumstances, that the respondents had also filed suit under Section 229-B of the Consolidation of Holdings Act stating that certain properties which were recorded in the name of petitioners ought to have been jointly recorded in the name of petitioners as well as respondents, as the plaintiffs therein have right to succeed over the property of common ancestor namely Imdad Hussain. The petitioners has put in appearance before the Sub Divisional Magistrate, Haidergarh, 3 WRIB No. 939 of 2025 Barabanki and opposed the suit proceedings. The trial Court dismissed the suit by means of judgment and order dated 06.07.2007, on the ground that it was barred by the provisions of Section 49 of the Consolidation of Holdings Act and that the plaintiffs therein had not made any valid claim during consolidation proceedings and after conclusion of the same, such proceedings cannot be initiated.

9. The respondents being aggrieved by judgment and order dated

06.07.2007, preferred an appeal before the Commissioner, Faizabad Division, Faizabad. The appellate authority allowed the appeal by means of judgment and order dated 10.02.2011 and remanded he matter back to the trial Court after formulating two questions pertaining to re- examination of the objections pertaining to invocation of Section 49 of the Consolidation of Holdings Act as well as existence of family settlement dated 18.09.1942. Order dated 10.02.2011 was subjected to revision before the Board of Revenue which was also rejected by means of order dated 10.07.2025. In the present petition orders dated 10.02.2011 and 10.07.2025 have been assailed by the petitioners.

10. Learned counsel for the petitioners has submitted that perusal of order of trial Court would indicate that no evidence was led by the plaintiffs/respondents in support of their claim and they have only filed few documents including land records pertaining to Fasli 1388 to 1393 and certain receipts and notice issued under Section 80 CPC as well as notice under Section 106 of the Panchayati Raj Act. It is submitted that even if such evidence was duly considered, the suit proceedings could not have concluded in favour of the respondents and therefore submits that the judgment of the trial Court cannot be materially altered by remanding the matter back and submits that it is a futile exercise and this Court in exercise of powers under Articles 226-227 of the Constitution of India should interfere in the present case and set aside the impugned orders.

11. Learned counsel for the respondents on the other hand has opposed the writ petition. He has submitted that perusal of the order of trial Court would indicate that all the contentions of the parties have been duly recorded but no finding has been returned with regard to the evidence lead by the plaintiffs-respondents and only on the ground of maintainability 4 WRIB No. 939 of 2025 the suit has been rejected. He further submits that once suit has been rejected on the ground of maintainability then there was no occasion for the trial Court to have adverted to the submissions on merit made during suit proceedings while the appellate Court had itself questioned the validity of the trial Court's order dismissing the suit on the ground of being hit by the provisions of Section 49 of the Consolidation of Holdings Act, 1953 (hereinafter referred to as "the Act, 1953") and have directed the trial Court to examine the issue pertaining to of provisions of Section 49 of the Act, 1953, inasmuch as the appellate Court as well as the revisional Court, certain basic ingredients/facts have to be established, before the trial Court could reject the suit being hit by Section 49 of the Act, 1953, and accordingly submits that there is no infirmity in the appellate order as well as revisional order and prays for dismissal of the writ petition. It is further submitted that the property all along was recorded in the name of Iftikar Hussain, but it was jointly possessed and owned by both the parties.

12. Heard learned counsel for the parties and perused the record.

13. It is according to both the parties that the property in dispute belongs to their common ancestor namely Imdad Hussain, who had two wives. The petitioners claim to be sons of legally wedded wife namely Musliman being her successor interest, while private respondents claim succession on the basis of being successor in interest of other wife namely Imtiyazan.

14. This Court finds that according to the petitioners settlement deed was entered into between the parties which included Iftikar Hussain who was successor in interest of Musliman while on the other hand Imtiyazan, Tasadduk, Tassaur were party to the deed.

15. It is contended by the petitioners that all the properties of Imdad Hussain stood transferred to both the sections of successors in interest, but dispute in the present case has been initiated by the private respondents who have filed suit under Section 229B claiming that certain properties which are recorded in the names of petitioners should have been recorded jointly in the name of petitioners and private respondents. 5 WRIB No. 939 of 2025

16. The trial Court has dismissed the suit only on the ground that same is hit by the provisions of Section 49 of the Act of 1953. Undoubtedly respective arguments of the parties were noticed by the trial Court, but did not proceed to examine any of the facts or evidence produced before it and rejected the suit on the ground of maintainability being hit by the provisions of Section 49 of the Consolidation of Holdings Act.

17. This Court finds that the appellate Court has rightly considered the aspect of the matter and held that before invocation of provisions of Section 49, entire facts should have been duly enquired into by the trial Court and this aspect of the matter which has been canvassed by the private respondents with regard to joint ownership and possession of the property should have been looked into and in case, any case is made out with regard to joint ownership and possession then certainly case could be made out for not filing objections under Section 49 of the Act, 1953 and consequently, this aspect of the matter should have been considered and accordingly Section 49 of the Act, 1953 in such circumstances, would not be an obstruction in entertaining the suit filed by the private respondents.

18. The appellate Court further considered the grounds raised by the petitioners that the suit stood concluded when joint family settlement was entered into on 18.09.1942. The appellate Court was of the view that in case this aspect of the matter was looked into by the trial Court then, the matter could have been concluded on merits also and accordingly these two aspects of the matter have been remanded to the trial Court.

19. The revisional Court has concurred with the opinion and findings recorded by the appellate Court. Considering the aforesaid reasons this Court do not find any infirmity in the same. It is the case of the petitioners themselves that the property stood partitioned between two sections, but this aspect of the matter has not been gone into by the trial Court and it has not exercised the jurisdiction vested in it and merely rejected the plaint on the ground of maintainability.

20. With regard to invocation of Section 49, this Court do not find any infirmity in the findings recorded by the appellate Court, to the extent that the the trial Court should have looked into the grounds raised by the 6 WRIB No. 939 of 2025 plaintiffs with regard to joint ownership and possession of the property, even though the property was recorded in the name of Iftikar Hussain who was successor in interest of Imdad Hussain. Certainly on these two issues when the matter has been remanded, and in the remand proceedings the parties would be at liberty to adduce further evidence and matter ought to be decided by the trial Court considering the parameters laid down by the appellate as well as revisional Courts.

21. Accordingly, this Court do not find any ground for interference in the matter, hence present writ petition stands dismissed.

22. However, the trial Court shall proceed and decided the suit with expedition. The parties would be at liberty to file any fresh material and evidence they wish to file, within next four weeks before the trial Court and the trial Court would conclude the proceedings within three months thereafter, after giving full opportunity of hearing to all the parties. October 6, 2025 A. Verma (Alok Mathur,J.) ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench