Dismissed

Suresh Chand @ Suresh Datt v. Chief Revenue Commissioner and Ors.

Uttarakhand HC28 Jul 2017WPMS/676/2006

Case brief

AI extract

What is this about?

In this writ petition, the petitioner sought a half-share in family property based on succession. The court held that subsequent sale deeds severed his rights, affirming the appellate courts' dismissal of his appeal and quashing the writ.

What the court decided

AI extract

Suresh Chand @ Suresh Datt Vs Chief Revenue Commissioner and… — Partition | Uttarakhand HC (2017)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition (M/S) No. 676 of 2006

Suresh Chandra

...….……Petitioner

Versus

Chief Revenue Commissioner & ors. ……. Respondents

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Present: Mr. Tapan Singh, Advocate for the petitioner.

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Mr. Pankaj Purohit, Deputy Advocate General along with Mr. Tarun Lakhera, Brief Holder for the State. Mr. Lokendra Dobhal, Advocate for the respondent nos. 2 & 3.

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Hon’ble Sharad Kumar Sharma, J. (Oral)

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The petitioner was the applicant/plaintiff to the proceeding registered by way of Case No. 25/1989-90, “Suresh Chandra Vs. Purnanad”, by invoking the provision of Section 176 seeking participation of the holding to the extent of half share in relation to the property as described in the foot of the plaint :-

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fooj.k Hkwfe

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[kkrk la 28 [kljk uEcjku 31 jdck 0-22 ,dM+] 32 jdck 0-75 ,dM+] 38 jdck 0-10 ,dM+ o 39 jdck 0-29 ,dM+] 41 jdck] 0-41 ,dM+ dqy 5 fdrk- bl jdck 1-77 ,dM+] yxku 14-00 :i;k okf’kZd fLFkr xzke Qylqok ijxuk ijoknwu rglhy o ftyk nsgjknwuA

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The contention of the petitioner before the court below was that the family tree of the petitioner constitutes as

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under:-

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One Mr. Jagarnain was succeeded by two sons namely the petitioner and Kamalnain. After the death of Kamalnain, his rights over the property were devolved upon the

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Purnanand and Nand Kishore. Purnanand met with the demise and consequently, he was succeeded by Hemant Kumar Sharma 2/1 and Ashwani Kumar Kala 2/2 for getting the family partition under the property.

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The case of the petitioner in the suit, was that since they succeed from the common ancestors and since Mr. Jagarnain had only two sons Suresh Chand and Kamalnain, the property will devolve in equal share, to them, i.e. share which they inherited from Jagarnain. The basis of the proceedings under Section 176 was that on account of non-division their often crops up disputes pertaining to the payment of annual rent payable towards the rent and other dues which accrue amongst themselves. This was the only cause which was given for getting the partition to the extent of half share of khata no. 41 and khata no. 28.

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On reading of the plaint, the sole basis was the difficulty being faced by the joint owners in remitting the taxes. A written statement was filed and a contest was put in by the petitioner by filling a written statement making efforts to deny plaint allegations and contending that the land lying in Mauza Fulsua. It was settled on the basis of compromise and the plaintiff-petitioner would get half share of the property and out of most of the share which was given by way of settlement, it was alleged that the petitioner has sold major part of it to the others. On the contrary, same plea has been raised by the respondent contending that the property settled by an oral settlement had already been sold by the petitioner.

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The Court of Assistant Collector, after considering the rival contention, it is the case of the petitioner that his objection/claim was allowed by the judgment dated 30.07.1990 passed by Assistant Collector. The learned court of Assistant Collector, while deciding the controversy between the parties with regard to the shares on the basis of succession had framed the following issues:-

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1- D;k oknh dk fookfnr Hkwfe esa 1@2 Hkkx gS\ ;fn gkW rks izHkko

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2- D;k Qylqok esa fLFkr fookfnr Hkwfe ds izfroknh x.k ,d ek= Hkwfe/kj gS

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vkSj oknh dk ml Hkwfe ls dksbZ laca/k ugha gS\

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3- D;k okn vkns”k 7 fu;e 11 lh-ih-lh ds varxZr pyus ;ksX; gS ;k ugha\

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4- D;k xzke dksMlh dh fookfnr Hkwfe ij vkcknh gS\ ;fn gak rks D;k

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fookfnr jdcs esa ls mls vyx fd;k x;k\

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5- oknh vU; fdl izfrdkj dk vf/kdkjh gS\

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One of the issues was as to whether the suit was barred by Order 7 Rule 11 and also whether the bar of Section 331 under the Zamidari Abolition Act will come to play or not? In the documentary evidence, the petitioner has placed reliance on the khatauni entries pertaining to No. 1392 of 1397 fasli and 1397 of 1398 fasli in relation to the land lying in village Falsua and Kodsi. The Assistant Collector, while deciding the issue No. 3, pertaining to the bar of Order 7 Rule 11 decided the issue in favour of the petitioner. Issue No. 4 pertaining to the existence of the abadi land lying in village kodsi and its effect was required to be determined while adjudicating issue No. 4. But the core issue which could be resolving the controversy with regards to the issue no. 1 for the purposes of Section 176 where

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the settlement of shares has to be done based on the rival claim of the parties.

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The Assistant Collector, while deciding the issue No. 1 cryptically has only observed that since in the plaint it was referred that half share in relation to the village kodsi in khata No. 41 having an area of 5.58 acres the petitioner would have half share and the remaining half share was to be given to the respondents as they were succeeding from a common clan of family.

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Thus, the suit was decreed to the extent of settlement of half share each. The respondent nos. 2 and 3 to the suit based on the fact that the order passed by the Assistant Collector would be prejudicing their rights preferred an Appeal No. ZA 29/93-94.

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The Appellate Court while considering the appeal ZA 29/93-94 had allowed the appeal and set aside the order of Assistant Collector dated 30.07.1990. The reason which has been assigned by the learned appellate court while reversing the judgment of Assistant Collector apparently, it seems from the length of the judgment as if the courts has applied its mind. But on reading of the operative portion of the judgment, it observes that the Court of Assistant Collector after going through the entries made, came to the conclusion that the reason derived by the Assistant Collector, while settling half share was not correct and held that the petitioner would be entitled to lesser shares for the reason they under the strength of sale deed had sold and once they have sold the property, they have severed their rights of

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settlement of their share and under the garb of the appellant order they cannot claim a right over the portion of the share which has already been sold out by them.

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According to the learned counsel for the petitioner that when the learned appellate court was passing the judgment dated 23.04.1996, he has not reverse the findings of facts recorded by the learned trial court pertaining to the possession and partition of the property. But the facts remains that after the settlement of the property the sale deeds have been executed and consequently the petitioner would be treated to have lost his interest over the property which he contends to have succeeded from the Jagarnain.

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Aggrieved against the order, the petitioner preferred Second Appeal before the Additional Chief Commissioner, Revenue, which too has been dismissed by the impugned order dated 19.04.2006. The Additional Chief Commissioner, Revenue on scrutinizing the grounds of the appeal and judgment under challenge before it came to the conclusion that there is no apparent mistake of the order passed by the first appellate Court and thus accordingly their second appeal was also dismissed.

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While dismissing the second appeal of the petitioner, the Court has recorded a finding that the land at village Fulsua which has been sold by the petitioners on the basis of agreement for sale dated 27.12.1974 and 26.02.1975, which was on record before the court below. The second appellate Court while dismissing the second appeal, considered the fact that according

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to the conduct of the petitioner himself, it seems that the petitioner was trying to acquire a right as settled by the Jagarnain by an oral settlement although as a matter of fact his relations to the right as conferred by the Jagarnain already stood settled by the family partition and consequent to it, he has already sold settled share.

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Thus, this Court feels that on the perusal of the first appellate Court’s order and the second appellate Court’s order shows that the order of the Assistant Collector suffered from the biases because it is not considered the impact of sale as made by the petitioner.

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Thus there is no error in the judgment impugned and the kuras as settled by the Assistant Collector settling half share between the petitioner and the Purnanand was absolutely just and no correction was required to be made by the appellate or second appellate Court’s order, this writ petition fails and is dismissed.

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Mahinder/

Suresh Chand @ Suresh Datt v. Chief Revenue Commissioner and Ors.

Case brief

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What the court decided

Suresh Chand @ Suresh Datt v. Chief Revenue Commissioner and Ors.

Case brief

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