KHINNI LALversusSTATE OF U.P. AND 13 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                        WRIT - C No. - 6608 of 2019

Khinni Lal
                                                            .....Petitioner(s)
                                  Versus

State Of U.P. And 13 Others
                                                         .....Respondent(s)

Counsel for Petitioner(s)      : Amardeo Singh, Brijesh Kumar
Counsel for Respondent(s)      : Ashok Kumar Upadhyay, C.S.C.,
                                 Rajshekhar Srivastava

Court No. - 4
                 HON'BLE KSHITIJ SHAILENDRA, J.

1. Heard Shri Amardeo Singh, learned counsel for the petitioner, learned
Standing Counsel for the State-respondents and Shri Ashok Kumar
Upadhyay, learned counsel for private-respondents.

2. In view of recent orders passed in this matter, the petition has been
finally heard.

3. The petitioner was one of the seven defendants in a suit filed under
Section 229-B of Uttar Pradesh Zamindari Abolition & Land Reforms
Act, 1950. Out of the seven defendants, five were private parties, i.e. real
brothers and defendants no. 6 and 7 were respectively Gaon Sabha and
State of U.P. The suit was filed by the private respondents No. 5 and 6
based upon the plea that during consolidation operations, four real
brothers of the plaintiffs' father had settled their property through family
settlement, according to which, certain properties fell in the shares of
some of the defendants and a decree was claimed that plaintiffs be
declared as Bhumidhars of the property covered by Arazi No. 316.

4. The suit was dismissed by the Sub Divisional Officer on 11.11.1991 by
recording a finding that no family settlement was brought on record with
a further finding that defendants no. 1 and 3 had appeared and supported
the plaintiffs' claim.

5. A review application was filed by the plaintiff-respondents, which was
allowed by the same officer on 30.08.1992 observing that since some of
the defendants had supported the plaintiffs' cause, the suit should be
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decreed.

6. After 14 years, a recall application was filed by the petitioner stating
that he came to know about the order dated 30.08.1992 in 2006. The said
application was rejected by the Sub Divisional Officer, against which a
revision was filed, which has also been dismissed.

7. Learned counsel for the petitioner submits that at no point of time
either at the first stage when the suit was dismissed or second time when
the review was allowed, any notice was issued to the petitioner, who was
defendant no. 5. It is further submitted that once a finding was recorded
by the Sub Divisional Officer while dismissing the suit that no family
settlement was brought on record, the same finding could not be
ignored/reversed, directly or indirectly, in review by observing that since
some of the defendants had accepted the claim of the plaintiffs, the suit
should be decreed and, therefore, the very order allowing the review
application is unsustainable and consequential orders are also bad in law.

8. Per contra, learned counsel for private respondents submits that family
settlement took place long ago between the family members and except
the respondents, all other persons got the properties in different villages.
It is further submitted that when restoration application came up for
consideration before the Sub-Divisional Officer, he noted the consensus
made by all the parties in favour of the plaintiff-respondents and,
therefore, no interference is warranted in this case.

9. I have considered the submissions made and have perused the material
available on record.

10. The very first order dated 11.11.1991 indicates that no issue was
framed by the Sub Divisional Officer and despite the fact that non-filing
of objections by the defendants was noted, the suit was dismissed. A
finding was recorded that no family settlement was brought on record by
the plaintiffs.

11. The said order could be assailed in appeal, however, the same was
sought to be reviewed/reversed by way of a review application at the
instance of the plaintiffs. A perusal of the order dated 30.08.1992
indicates that there is no indication of issuance of notice to the opposite
parties in the review application and the petitioner was one of them.
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12. Surprisingly, the Sub Divisional Officer allowed the review
application ignoring the fact that the very plea based upon the family
settlement was denied by him while dismissing the suit. It has also been
observed that family settlement was alleged to be an oral family
settlement, although in the plaint, it was stated that during consolidation
operations some family settlement had taken place.

13. The Court is not sure about the fact as to whether some oral
understanding had taken place between the parties or any written family
settlement was filed in any court, however, the very fact that in the year
2018, the name of the petitioner was expunged from the revenue records
based upon the decree drawn by the Sub Divisional Officer in review, this
itself shows that the decree was kept by the respondents with them and
they did not seek its implementation at least through mutation
proceedings.

14. Be that as it may, if in 2006 the petitioner came up with a plea that he
had no knowledge of allowing the review application, the plea raised by
the petitioner that things were surreptitiously finalized merely based upon
oral statements of some of the defendants, who were won over by the
plaintiffs, appears to have force.

15. The Court is not in a position as on today as to the sanctity of any
family settlement and as to who were the parties thereto if at all it was
written down or what actually happened in consolidation operations.
However, at least this much is clear from the record that review
application itself was not maintainable and/or if maintainable, the same
could be dealt with in accordance with law but only after putting the
petitioner to notice in whose favour a decree of dismissal of suit by the
same Sub Divisional Officer based upon the findings contrary to the order
allowing review, did exist.

16. In view of the facts and circumstances of the case and the very nature
of the operative portion of the order allowing review, this Court is of the
view that the proceedings under Section 229-B of the U.P. Zamindari
Abolition & Land Reforms Act, 1950 should be revived.

17. The petition is, accordingly, allowed.

18. The order dated 30.08.1992 passed by the Sub-Divisional Officer
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                                    allowing the review application, along with all consequential
                                    orders/decree passed pursuant thereto are hereby set aside.

                                    19. Although, effect of setting aside of the order dated 30.08.1992 would
                                    be that dismissal of suit under Section 229-B of the U.P. Zamindari
                                    Abolition & Land Reforms Act, 1950 by order dated 11.11.1991 would
                                    remain intact, however, since even that order was passed in a clandestine
                                    manner and the same is before the court, it also cannot be ignored in the
                                    peculiar facts and circumstances of the case. Therefore, irrespective of the
                                    fact that the order passed on review application has been set aside, the
                                    Court deems it appropriate to revive the suit proceedings by setting aside
                                    the order dated 11.11.1991 also as the same would be covered by "any
                                    other order", falling under relief (c) claimed in the writ petition.

                                    20. Accordingly, the suit under Section 220-B of the Act stands revived
                                    to its original number and status.
                                    21. The Sub-Divisional Officer concerned shall issue notice to all the
                                    concerned parties by all possible legal means and after ensuring service of
                                    notice upon them, he shall proceed with the suit de novo in accordance
                                    with law.

                                    22. It is made clear that since mutation entries have already been effected
                                    pursuant to the orders impugned, which were passed long ago and the
                                    same were not even stayed by this Court in this writ petition, status quo
                                    with respect to nature and possession of the property as well as record of
                                    rights shall be maintained till disposal of the suit.

                                    23. The suit shall be decided by the Sub Divisional Officer concerned
                                    very expeditiously by fixing dates on weekly basis and within a period of
                                     one year from the date of its revival on record.



                                                                                        (Kshitij Shailendra,J.)
                                    September 23, 2026
                                    Sazia




Digitally signed by :-
SAZIA AQUIL
High Court of Judicature at Allahabad