Prashant Singh vs Meena

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION 2024 INSC 380 CIVIL APPEAL NOS.8743-8744/2014

PRASHANT SINGH & ORS. ETC. APPELLANTS

VERSUS

MEENA & ORS. ETC. RESPONDENTS WITH

CIVIL APPEAL NO.8971/2014 & CONTEMPT PETITION (C) NO.86/2024 IN CIVIL APPEAL NOS.8743-8744/2014

J U D G M E N T

Surya Kant, J.

1. Application (IA No.115495/2021) for bringing on

record the legal representatives of deceased appellant

no.2 is allowed after condoning the delay, if any. Cause

title be amended accordingly.

2. In these civil appeals the controversy revolves

around the ownership rights over Khasra Nos.115, 151 and

152, situated within the Revenue Estate of village

Mustafabad, District Haridwar, Uttaranchal (now

Uttarakhand). It is broadly not in dispute that the

subject land is an ancestral property originally owned by

Angat, who died leaving behind three sons, namely, Ramji

Signature Not VerifiedLal, Khushi Ram and Pyara. Pyara died issue-less and his Digitally signed by Ashwani Kumar

share devolved equally upon his other two brothers. Date: 2024.05.04 12:16:39 IST Reason:

Khushi Ram also seems to have died before 1950 leaving

1 behind his son Kalyan Singh, who succeeded his father’s

share in the subject property. The fact that Kalyan Singh

was co-owner/co-sharer in the subject land is fortified

from the entries in the revenue record, which the

appellants have produced in these proceedings as well.

3. It seems that consolidation proceedings were

initiated in village Mustafabad in late 50s or early 60s

in accordance with the provisions of the U.P.

Consolidation of Holdings Act, 1953 (in short, the “1953

Act”). Ramji Lal – one of the uncles of Kalyan Singh –

approached the Consolidation Officer in the pending

reference pertaining to their land under the erstwhile

Section 9(3) of the 1953 Act (i.e., as it stood before

the U.P. (Amendment) Act 8 of 1963), claiming that

whereabouts of Kalyan Singh were unknown and hence his

name may be expunged from the ownership entry of the

revenue record. The Consolidation Officer passed an order

dated 08.05.1960 on the basis of a report dated

17.03.1960 of the Assistant Consolidation Officer, which

inter alia claimed that Kalyan Singh – co-tenure holder

had not been heard for last 8 of 10 years, he did not

arrive in the village and an affidavit to this effect was

filed by his uncle Ramji Lal. Since all efforts to secure

service on Kalyan Singh failed, the Consolidation

Officer, “in the interest of correction of record”,

expunged the name of Kalyan Singh from the record and

2 declared his civil death. On this premise, Ramji Lal

(later on his legal representatives) started claiming to

be the sole owner(s) of the entire land holding of Angat.

4. Kalyan Singh then instituted Suit No.19/1985 on

12.03.1985 before the Assistant Collector, First Class,

Haridwar for declaration of his half share in the suit

property. The suit was decreed in his favor. Ramji Lal

filed an appeal, which was dismissed on 06.08.1986. Ramji

Lal then approached the Board of Revenue in a Second

Appeal. That appeal was allowed in part on 31.07.1989 and

the suit was remanded with a direction to adjudicate the

dispute regarding Khasra No.115 afresh after forming an

issue with respect to applicability of Section 34 of the

Specific Relief Act, 1963. Kalyan Singh challenged the

aforesaid order of the Board of Revenue before the High

Court. His writ petition has been allowed by the High

Court vide impugned judgment dated 16.01.2013.

5. We have heard learned senior counsel on behalf of

the appellants as well as learned senior counsel who is

representing the prospective vendees in whose favour

Kalyan Singh had allegedly executed an agreement to sale

and a mortgage deed. The other learned counsels

representing the interested parties have also been heard

and the material placed on record perused.

6. The sheet anchor of Mr. S.R. Singh, learned senior

3 counsel for the appellants, is Section 49 of the 1953

Act. It is urged that the order dated 08.05.1960 passed

by the Competent Authority in exercise of its powers

under that provision, having attained finality, Kalyan

Singh lost his right, title or interest in the subject

land. It is contended that not only the subsequent suit

filed by Kalyan Singh was expressly precluded under the

said provision, such a suit was hopelessly time barred.

It is then argued that the High Court exceeded its

jurisdiction in interfering with the order of remand

passed by the Board of Revenue for determination of the

legal issue as to maintainability of a simpliciter suit

for declaration, without seeking consequential relief of

possession filed by Kalyan Singh. The Board, it is

asserted, rightly remanded the suit for determination of

its maintainability keeping in mind Section 34 of the

Specific Relief Act, 1963.

7. Contrarily, it is urged by learned senior

counsel/other counsels for the respondents that neither

Section 49 of the 1953 Act was attracted in the instant

case nor the Consolidation Officer was competent to rob

off Kalyan Singh of his ancestral right as a tenure

holder on the subject land. Such a power, according to

learned senior counsel for the respondents, is beyond the

purview of Section 49 of the 1953 Act. As regard to

Section 34 of the Specific Relief Act, 1963, it is urged

4 that since Kalyan Singh was co-owner in the subject land

along with his uncle Ramji Lal or his successors, the

possession of the subject land continued in favour of all

the co-owners. Consequently, even if one of them was in

actual physical possession, such possession was of

permissible nature, for and on behalf of all the co-

owners. It is thus maintained that, no consequential

relief like a decree for possession was required to be

sought by Kalyan Singh in his declaratory suit.

8. Section 49 of the 1953 Act reads as follows:

“49. Bar to Civil Court jurisdiction — Notwithstanding anything contained in any other law Courts for the time being in force, the declaration and adjudication of rights of tenure-holder 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 right 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:

Provided that nothing in this section shall preclude the Assistant Collector from initiating proceedings under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1 of 1951) in respect of any land, possession over which has been delivered or deemed to be delivered to a Gram Sabha under or in accordance with the provisions of this Act."

9. On a plain reading, we find that Section 49 of the

1953 Act contemplates bar to the jurisdiction of the

5 Civil or Revenue Court for the grant of declaration or

adjudication of rights of tenure holders in respect of

land lying in an area for which consolidation proceedings

have commenced. Section 49 of the 1953 Act is a provision

of transitory suspension of jurisdiction of Civil or

Revenue Court only during the period when consolidation

proceedings are pending. Notably, such suspension of

jurisdiction of these Courts through the non obstante

provision is only with respect to the declaration and

adjudication of rights of tenure holders. In other words,

unless a person is a pre-existing tenure holder, Section

49 does not come into operation.

10. The expression “tenure holder” has been defined in

Section 3(11) of the 1953 Act and it reads as follows:

“(11) “Tenure-holder” means a bhumidhar with transferable rights or bhumidhar with non- transferable rights and includes—

(a) an asami,

(b) a Government lessee or Government grantee, or

(c) a co-operative farming society satisfying such conditions as may be prescribed;”

11. It may be seen that a tenure holder means a

bhumidhar with transferable or non-transferable rights.

The question that arises further is as to what kind of

rights of such tenure holders can be declared or

adjudicated in exercise of powers under Section 49 of the

1953 Act? In this regard, the scheme of the statute

becomes very material.

6

12. The object of the 1953 Act is to prevent

fragmentation of the land holdings and consolidate them

in such a fair and equitable manner that each tenure

holder gets nearly equivalent land rights in the same

revenue estate.1 The duty of a Consolidation Officer

under Section 49 of the 1953 Act is to prevent

fragmentation and consolidate the different parcels of

land of a tenure holder. Such a power can be exercised

only in respect of those persons who are already the

tenure holders of the land. Conversely, the power under

Section 49 of the 1953 Act cannot be exercised to take

away the vested title of a tenure holder. No such

jurisdiction is conferred upon a Consolidation Officer or

any other Authority under the 1953 Act.2 The power to

declare the ownership in an immovable property can be

exercised only by a Civil Court save and except when such

jurisdiction is barred expressly or by implication under

a law. Section 49 of the 1953 Act does not and cannot be

construed as a bar on the jurisdiction of the Civil Court

to determine the ownership rights.3

13. Having held so, it is not difficult to explain that

Kalyan Singh had acquired ancestral rights as a tenure

holder. He was co-owner in the suit land much before the

consolidation proceedings commenced. Hence, the only

declaration and adjudication of rights of Ramji Lal or 1 Attar Singh v. State of U.P., 1959 Supp (1) SCR 928, para 3. 2 Amar Nath v. Kewla Devi, (2014) 11 SCC 273, para 17. 3 Karbalai Begum v. Mohd. Sayeed, (1980) 4 SCC 396, para 12-13.

7 Kalyan Singh that a Consolidation Officer could undertake

under Section 49 of the 1953 Act was to avoid the

fragmentation of their respective land holdings and

consolidate or redistribute the parcels of land among

them. As analyzed above, the provision does not enable

the Consolidation Officer to grant ownership to Ramji Lal

in respect of a property, which, before the consolidation

proceedings, never vested in him. Vice versa, the

Consolidation Officer could not take away the ownership

rights of Kalyan Singh which he had already inherited

much before the commencement of the consolidation

proceedings.

14. That being so, the order dated 08.05.1960 passed by

the Consolidation Officer has rightly been held to be

null and void and without any jurisdiction. It was passed

usurping a power fraudulently, which never ever vested in

a Consolidation Officer. The said order is thus liable to

be ignored for all intents and purposes. Having held

that, it is not necessary for us to go into the question

of fraud played upon Kalyan Singh in securing that order

with or without collusion of the Consolidation Officer.

All that is required to be held is that the order dated

08.05.1960 had no binding force or any adverse effect on

the rights of Kalyan Singh.

15. In all fairness, learned senior counsel for the

appellants has placed reliance on a decision of this

8 Court in Sita Ram vs. Chhota Bhondey & Ors.,4 for

contending that during the pendency of consolidation

proceedings, the Authority under the Act assumes the

jurisdiction of the Civil Court to determine all types of

rights including the dispute regarding title over the

land. In our considered opinion that is not the ratio

decidendi of the decision in Sita Ram (supra). That was a

case where the dispute related to sirdari holdings which

were subject matter of the proceedings under the 1953

Act. These proceedings attained finality when the writ

petition challenging the order of the Deputy Director of

Consolidation was dismissed in limine and that order was

further upheld by this Court under Article 133 of the

Constitution of India. Thereafter, the unsuccessful party

filed a Civil Suit seeking a declaration that the order

passed by the Deputy Director of Consolidation (which had

been upheld by the High Court and this Court) was without

jurisdiction. The said suit was contested with an

objection that it was barred by Section 49 of the 1953

Act. In this backdrop, this Court very aptly held that

the subsequent civil suit was barred under Section 49 of

the 1953 Act. The facts will speak for themselves as to

how Section 49 of the 1953 Act was construed by this

Court in the light of the events noticed above.

16. However, that is not the factual situation here. We

may hasten to add that in the present case, Kalyan Singh 4 1991 Supp (1) SCC 556.

9 filed the suit for declaration questioning the deletion

of his name from the revenue record as a co-owner. As

held earlier in paragraph 14 of this order, the order

dated 08.05.1960 of the Consolidation Officer in the

instant case was totally without jurisdiction and not

being an order within the framework of the 1953 Act, and

it could not bind the rights of Kalyan Singh.

17. As regard to the contention that the High Court

ought not have interfered with the Board’s Order

remanding the case to the Trial Court to examine the

legal issue of applicability of Section 34 of the

Specific Relief Act, 1963, the same just deserves to be

noticed and rejected. We say so for the reason that once

Kalyan Singh is held to be co-owner in the subject

property, the exclusive possession of the land, if any,

with Ramji Lal, was joint in nature and it was for and on

behalf of all the co-owners. Kalyan Singh was already

deemed to be in joint possession of the subject land in

the eyes of law, hence he was not required to seek a

decree of possession qua his share in the suit land.

18. For the reasons afore-stated, we do not find any

merit in these appeals, which are accordingly dismissed.

Contempt Petition (C) No.86/2024

19. In view of the fact that the appeals have been

decided on merits and Kalyan Singh’s legal heir can now

10 seek consequential rights in the suit land, we do not

deem it necessary to entertain these contempt proceedings

and leave the parties to work out their remedies.

20. The contempt petition is, accordingly, dismissed.

.......................J. (SURYA KANT)

.......................J. (PAMIDIGHANTAM SRI NARASIMHA) New Delhi;

April 25, 2024

11 ITEM NO.102 COURT NO.4 SECTION X

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s).8743-8744/2014

PRASHANT SINGH & ORS. ETC. Appellant(s)

VERSUS

MEENA & ORS. ETC. Respondent(s)

(IA No. 26634/2023 - APPLICATION FOR PERMISSION, IA No. 7812/2023 - APPLICATION FOR PERMISSION, IA No. 63778/2022 - APPLICATION FOR SETTLEMENT, IA No. 115495/2021 - APPLICATION FOR SUBSTITUTION, IA No. 163683/2023 - EXEMPTION FROM FILING O.T., IA No. 34483/2023 - EXEMPTION FROM FILING O.T., IA No. 184197/2023 - EXEMPTION FROM FILING O.T., IA No. 115498/2021 - EXEMPTION FROM FILING O.T., IA No.163678/2023 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES, IA No. 184192/2023 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)

WITH C.A. No. 8971/2014 (X)

CONMT.PET.(C) No.86/2024 in C.A. No.8743-8744/2014 (X) (FOR ADMISSION)

Date : 25-04-2024 These matters were called on for hearing today.

CORAM : HON'BLE MR. JUSTICE SURYA KANT HON'BLE MR. JUSTICE PAMIDIGHANTAM SRI NARASIMHA

For Appellant(s) Mr. S.R. Singh, Sr. Adv.

Mr. Sushant Kumar Yadav, Adv.

Mr. Ajay Yadav, Adv.

Mr. Prateek Yadav, Adv.

Mr. Gaurav Lomes, Adv.

Mr. Prithvi Yadav, Adv.

Mr. Anurag Singh, Adv.

Mr. Dhroov Kumar Singh, Adv.

Mr. Sanjiv Tandan, Adv.

Ms. Swapnil Singh, Adv.

Ms. Radha Rajput, Adv.

Mr. Ankur Yadav, AOR

Mr. Yash Pal Dhingra, AOR

Ms. Asha Gopalan Nair, AOR

Mr. Rohit Amit Sthalekar, AOR Mr. Purnendu Bajpai, Adv.

12 Mr. Shashank Singh, Adv.

For Respondent(s) Ms. Abha Jain, AOR

Mr. Dinesh Kumar Garg, AOR

Mr. Akshat Kumar, AOR

Mr. M.P. Parthiban, AOR

Mr. Tanmaya Agarwal, AOR Mr. Wrick Chatterjee, Adv.

Mrs. Aditi Agarwal, Adv.

Mr. Vinayak Mohan, Adv.

Mr. A. P. Mohanty, AOR

Mr. Kavin Gulati, Sr. Adv.

Mr. Rohit Amit Sthalekar, AOR Mr. Mohith Sivakumar, Adv.

Mr. Dushyant Sharma, Adv.

Mr. Purnendu Bajpai, Adv.

Mr. Shashank Singh, Adv.

Mr. Ankur Prakash, AOR Mohd. Saquib Siddiqui, Adv.

Mr. Amod Kumar Bidhuri, Adv.

Ms. Srishti Kasana, Adv.

Ms. Priyanka Singh, Adv.

Mr. Yudhister Bharadwaj,Adv.

Ms. Jyoti Sharma, Adv.

UPON hearing the counsel the Court made the following O R D E R

1. Application (IA No.115495/2021) for bringing on record the legal representatives of deceased appellant no.2 is allowed after condoning the delay, if any. Cause title be amended accordingly.

2. The appeals as well as contempt petition are dismissed in terms of the signed reportable judgment.

(ARJUN BISHT) (MALEKAR NAGARAJ) ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)

(signed reportable judgment is placed on the file)

13