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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