NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.21012 OF 2017
(arising out of SLP (C) No.31002 of 2015)
VIJAY KUMAR AND ANOTHER ..........Appellant(s)
VERSUS
BAL KRISHAN AND OTHERS ......Respondent(s)
With
CIVIL APPEAL No.21013 OF 2017
(arising out of SLP (C) No.34286 of 2017 @ SLP(C)…. CC
No.21194/2015)
VIJAY KUMAR AND ANOTHER ..........Appellant(s)
VERSUS
BAL KRISHAN AND OTHERS ......Respondent(s)
JUDGMENT
NAVIN SINHA, J.
Delay in SLP(C)….(CC) No. 21194 of 2015 is condoned.
Leave granted in both special leave petitions.
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2. The challenge in these two appeals, is to the order dated
7.08.2013 allowing W.P. (M/S) No. 1209 of 2002 preferred by
the Respondent, and the order dated 23.07.2015 dismissing
MCC No. 554 of 2013 for recall of the same, preferred by the
Appellants who were the Respondents in the writ petition.
3. The Appellants and Respondent no.1, as plaintiffs,
together filed Revenue Suit No. 22/15 of 1987-88 under
Section 229(B) of the Uttar Pradesh Zamindari Abolition and
Land Reforms Act (hereinafter referred to as “U.P.Z.A.L.R. Act”)
for declaration of bhumidari rights in respect of the suit lands
against Omprakash and Balraj Singh. The suit was decreed
on 18.04.1991 by the Assistant Collector, declaring them to be
joint bhumidhars of the suit lands. Appeal No. 150/98 of
1990-91 preferred against the same was dismissed on
24.03.1993 by the Additional Commissioner. In Suit No.
22/108 of 1991-92 preferred by the Respondent under Section
176 of the U.P.Z.A.L.R. Act for a partition and declaration of
his share, he was held entitled to 1/10th share only by the
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Assistant Collector on 26.04.1995. Pursuant to an order of
remand by the Additional Commissioner on 19.12.1995, the
Assistant Collector on 23.12.1998 held that the suit lands
having been recorded in the joint names of the parties, the
Respondent was entitled to 1/3rd share and the regional
Patwari was directed to prepare separate kurrah and map.
4. The Appellants appeal against the order of the Assistant
Collector was allowed on 19.05.1999 by the Commissioner
holding that the Respondent was entitled to 1/10th share. The
second appeal by the Respondent was dismissed on
19.09.2002. Aggrieved, the Respondent preferred W.P.(M/S)
No. 1209 of 2002 assailing the same. The learned Single
Judge allowed the writ petition holding that the declaration of
the Respondent having 1/10th share only in the suit lands
suffered from perversity as it did not take into consideration
the decree in Revenue Suit No. 22/15 of 1987-88 preferred
jointly declaring them as co-bhumidars and which had
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attained finality. The order of the Assistant Collector dated
23.12.1998 was restored.
5. Subsequently, the Appellants preferred MCC 544 of 2013
for recall of the order dated 7.08.2013 seeking to assail the
finding on merits in the garb of a review application.
Dismissing the same it was observed that in absence of any
material with regard to the respective shares, and more
particularly in view of the pleadings in the joint plaint followed
by a declaration of co-bhumidars, the order called for no
interference.
6. We have heard learned counsel for the parties at length.
The short question for consideration is whether in view of the
joint purchase and declaration in Suit No. 22/15 of 1987-88,
the two Appellants and Respondent no.1 are co-bhumidhars to
the extent of 1/3rd share of each, or is Respondent no. 1 owner
to the extent of 1/10th share only as contended by the
Appellants?
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7. Indisputably, Suit No. 22/15 of 1987-88 was filed by the
Appellants and the Respondent together as plaintiffs for
declaration of co-bhumidari rights over the entire suit lands.
There is no evidence of any partition having taken place
between them. The rejoinder by the Appellant to the counter
affidavit filed by Respondent no.1, does not deny that before
the order of status quo was passed in the present proceedings
on 08.01.2016, the impugned order stood complied on
22.09.2015 in Execution Case no. 22/69 of 2012-13.
8. The impugned orders call for no interference. The
appeals are dismissed.
………………………………….J.
(R.K. Agrawal)
……….………………………..J.
(Navin Sinha)
New Delhi,
December 08, 2017
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