Vijay Kumar vs Bal Krishan .

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.

Signature Not Verified Delay in SLP(C)….(CC) No. 21194 of 2015 is condoned. Digitally signed by R.NATARAJAN Date: 2017.12.08

Leave granted in both special leave petitions. 14:59:23 IST Reason: 1

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

2 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 1/10 th 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

3 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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