Sanjeev Kumar Agrawal And Another vs State Of Up And 46 Others on 6 May, 2025

Allahabad High Court

Sanjeev Kumar Agrawal And Another vs State Of Up And 46 Others on 6 May, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:71859
 
Reserved on 21.03.2025
 
Delivered on 06.05.2025
 
Court No. - 50
 
Case :- CIVIL MISC REVIEW APPLICATION No. - 536 of 2024
 
Applicant :- Sanjeev Kumar Agrawal And Another
 
Opposite Party :- State Of Up And 46 Others
 
Counsel for Applicant :- Ashish Kumar Dwivedi,Pankaj Sharma,Rishabh Srivastava,Sr. Advocate
 
Counsel for Opposite Party :- C.S.C.,Pankaj Srivastava,Rahul Kumar Tyagi
 

 
Hon'ble Chandra Kumar Rai,J.
 

Order on Civil Misc. Delay Condonation Application

1. Heard Sri H.N.Singh, learner senior counsel assisted by Sri Rishabh Srivastava along with Sri Ashish Kumar Dwivedi, learned counsel for the applicants and Sri Ashok Kumar Singh, learned counsel for the opposite party respondent Nos.6, 7, 8 and 9 and Sri Tarun Gaur, learned standing counsel for the State-respondents.

2. Stamp reporter has reported laches of 222 days in filing the instant review application which has been properly explained in the application as well as affidavit filed on behalf of the applicants.

3. The explanation given for delay of 222 days in filing the review application is satisfactory.

4. The delay in filing the review application is condoned.

Order on Review Application

1. Heard Sri H.N. Singh, learned Senior Counsel assisted by Sri Rishabh Srivastava along with Sri Ashish Kumar Dwivedi, learned counsel for the applicants in Review Application No. 536 of 2022, Sri Ashok Kumar Singh, learned counsel for the opposite parties/respondent nos. 6, 7, 8 & 9 and Sri Tarun Gaur, learned Standing Counsel for the State.

2. The instant review application has been filed against judgement and order dated 18.03.2024 passed by this Court on merit after hearing the learned counsel for the parties taking following grounds in the memo of review application:-

Grounds

1. Because the Hon’ble Court in spite of the instructions in pursuance of the order dated 08.11.2023 by the Counsel for Nagar Nigam, Meerut that the Khasra No.59 area 0.3430 hectare is not in Nagar Nigam and contrary instructions for standing counsel that the same is under Nagar Nigam and residential houses/boundary wall are situated in Plot No.59 omitted to decide where the plot in question, particularly, Village Noor Nagar is still continuing as village or it has merged in Nagar Nigam,Meerut, hence a mistake apparent face of record occurred.

2. Because once the Plot No.59 old Plot No.38/1 Noor Nagar is within the area of Nagar Nigam the provision of U.P. Revenue Code, 2006 will not be applicable and the land in question is not a land within the definition of Section 4(14) of the U.P. Revenue Code, 2006 and the suit for eviction under Section 134 of the Code will not be maintainable and this issue has not been decided and mistake has occurred.

3. Because once the area is within the Nagar Nigam, provision of the Uttar Pradesh Municipal Corporation Act, 1959 (hereinafter referred to as “the Act, 1959”) will be applicable and in view of Article 243 (q) read with Section 3 of the Act, 1959 the same will be larger urban area and shall be known as city and in view of sub-Section (2) Section 3 area shall thereby, become subject to all notifications, rules, regulations, bye-laws, orders and directions issued under the Act or any other enactment and enforce in city and as such, U.P. Zamindari Abolition and Land Reforms Act or Revenue Code will not be applicable in Municipal Corporation area.

4. Because the whole dispute and consequential suit and eviction is based on order of mutation dated 09.10.1967 passed by the Consolidation Officer in favour of Diwan Singh and the same was recalled by the Settlement Officer Consolidation by order dated 11.04.2011 and was ultimately affirmed by the Hon’ble High Court by judgment and order dated 02.12.2016 and by the Hon’ble Apex Court by dismissing the Special Appeal by order dated 17.02.2017 and the said mutation does not decide the title and it is for physical purpose, meaning thereby, for collecting land revenue by the State, but once the area fall within the Nagar Nigam, Property tax are to be collected by Nagar Nigam in accordance with the provision of Sections 172, 173 and 174 of the Act, 1959 read with the U.P. Municipal Corporation (Property Tax) Rules, 2000 and the houses constructed by the petitioners has already been allotted house number by the Municipal Corporation have been assessed and house tax, water tax and other taxes are being collected by the Municipal Corporation and electricity is being supplied by the concerned department.

5. Because in view of the aforesaid section of the Municipal Corporation Act, the property include the building as well as the land and both are liable to be assessed and its annual value are to be determined and taxes are to be calculated by the Nagar Nigam, in this view of matter, the land under the Nagar Nigam is not a land under Section 4(14) of the U.P. Revenue Code, 2006.

6. Because once the area is within Nagar Nigam, Collector will not prepare the record of right under Section 31 and no declaration of Abadi, Commercial or Industrial use of the land is required to made under Section 143 of the U.P.Z.A.& L.R. Act and Section 80 of the U.P. Revenue Code, 2006 and the land and building

automatically becomes to be used for residential, commercial, industrial, green belt, road, community centre, public park etc. as per the master plan/zonal plan prepared by the development authority

7. Because in the area of Noor Nagar, public amenities such as road, street light etc. are being provided by Nagar Nigam.

8.Because Up-Ziladhikari after getting the report of the Lekhpal dated 12.04.2021 has rightly held that there are construction of houses and area is being used for abadi purpose and is not within the definition of land and as such, Suit under Section 134 of the Code is not maintainable which was set aside by the first and second appellate Court on the ground of absence of declaration under Section 80 of the Revenue Code and mistake has occurred in affirming the order of the first and second appellate Court on the ground of absence of declaration under Section 80 of the Revenue Code ignoring that the area is within the Municipal Corporation and provision of the code are not applicable as has been held by the Up-Ziladhikari.

9. Because it was omitted to be considered which resulted in mistake apparent on face of record that the Suit under Section 134 was filed on 17.10.2019 being Case No.05419 of 2019 which was time barred in view of the fact that Sale Deed was executed by Swaroop on 11.06.1962 which was registered on 20.06.1962 name of Diwan Singh was mutated as per the mutation order dated 09.10.1967 and Suit for specific performance filedby Shanti Devi and Raj Bahadur was decreed on 13.009.1988 and consequential Sale deed was executed by the Civil Court on 17.01.1989 and heirs of Shanti Devi and Raj Bahadur thereafter has carved out the residential plot and sold the same to the petitioners and others and as such, the plaintiff respondents were not in possession since the year 1962 and by the date Suit was filed in the year 2019, 57 years have passed when the plaintiff were out of possession and even from the date of decree of the Civil Court dated 13.09.1988 and Sale deed executed on 17.01.1989 more than 30 years have passed, in this view of matter the Suit under Section 134 was barred by limitation as the defendants and their predecessors are in possession in the knowledge of the plaintiff for the period more than 12 years

10. Because the limitation provided for suit under Section 209 of U.P.ZA & LR. Act read with Rule 338 Appendix 3 the limitation provided was 12 years which have already expired before the commencement of the Revenue Code with effect from 18.12.2015.

11. Because under Section 341 of UPZA. & L.R. Act and Section 214 of UP Revenue Code unless otherwise, provided provision of C.P.C., Limitation Act and Court Fee Act are applicable in UPZA & LR and Revenue Code respectively and in view of the Rule 191 of Revenue Code Rule 2016 read with Appendix 1 of the Revenue Code Rule, 2016, the limitation for suit Section 134 Revenue Code is mentioned as Nil, meaning thereby no separate limitation has provided, hence in view of Section 29 of the Limitation Act for suit for possession under Article 65 of the Limitation Act being 12 years become applicable for suit under Section 134 of the Revenue Code and mistake is omitting to decide the issue of limitation by either of the Court including the Hon’ble Court.

12. Because a mistake has occurred in decreeing the Suit under Section 134 of the plaintiff-respondent by the first appellate Court and second appellate Court and dismissal of the writ petition by the Hon’ble Court in omitting to consider that the title of the property will not reverted back to the plaintiff-respondent even if the mutation order dated 09.10.1967 is set aside as the Sale deed dated 20.06.1962 and further consequential decree of the Civil Court dated 13.09.1988 and Sale deed executed by the Civil Court dated 17.01.1989 will not be rendered void-ab-initio and deemed to be set aside as no proceeding was ever initiated by the plaintiff-respondent for setting aside the Sale deed dated 20.06.1962 and of consequential third party interest created by the decree of the Civil Court as well as the Sale deed executed by heirs of Raj Bahadur.”

3. Learned senior counsel for the applicants pressed the aforementioned grounds setup in the review application. He further submitted that once the plot number 59 (old Plot No. 38/ 1) is within the area of Nagar Nigam, the provision of U.P. Revenue Code, 2006 will not be applicable as the land in question is not a land within the definition of section 4 (14) of U.P. Revenue Code, 2006. He submitted that in view of the fact that land in question will not be treated as a land as such, suit for eviction filed under section 134 of U.P. Revenue Code 2006 will not be maintainable before the Revenue Court. He submitted that once the area where plot in question is situated is within the Nagar Nigam, the Provision of U.P. Municipal Corporation Act 1959 will be applicable and in view of Article 243 (q) read with Section 3 of Municipal Corporation Act, 1959, the same will be treated as larger urban area, as such, the suit under section 134 of U.P. Revenue Code, 2006 cannot be entertained. He further submitted that basis of suit under section 134 of U.P. Revenue Code 2006 is an order of mutation dated 9.10.1967 passed by consolidation officer in favour of Diwan Singh which was set aside in appeal by Settlement Officer of Consolidation vide order dated 11.04.2011 and the order dated 11.4.2011 was ultimately affirmed by this Court while passing the judgement dated 02.12.2016 as well as Hon’ble Apex Court vide order dated 17.02.2017 but the mutation proceeding does not decide the title as such, the suit under section 134 of U.P. Revenue Code 2006 in respect to the plot in question cannot be entertained. He further placed the revenue entry of the plot in question in order to demonstrate the title of Dewan Singh in respect to plot in question. He further submitted that no declaration under Section 143 of U.P.Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as U.P.Z.A.&L.R.Act) is required in the facts and circumstances of this Case. He further placed reliance upon the following judgements in support of his argument:-

“1.1971 AIR (SC) 2355 Mathura Prasad Bajoo Jaiswal Vs. Dossibal N.S. Jeejeebhoy.

2. (2000) 6 Supreme Court Cases 301 Madhvi Amma Bhawani Amma and others vs. Kunjikuttry Pillai Meenakshi Pillai and others.”

4. On the other hand, Mr Ashok Kumar Singh learned counsel for the opposite parties/ respondent Nos. 6, 7, 8 and 9 submitted that writ petition filed by petitioners/applicants has been dismissed on merit after hearing learned counsel for both the parties as such review application cannot be entertained. He further submitted that in view of the earlier adjudication taken place in respect to plot in question upto the stage of Hon’ble Apex Court, there is no illegality in the judgement passed by this Court. He further submitted that each and every aspect of the matter has been considered by this Court while passing the final judgement as such review application filed on behalf of petitioners/applicants cannot be entertained. He further submitted that in view of the Hon’ble Apex Court judgments rendered from time to time, the review application cannot be entertained against final judgement passed by this Court on merit. He further placed reliance upon the following judgements in support of his argument:-

“1. (2023) 3 SCR 47 S. Murali Sundaram Vs. Jothibai Kannan & others.

2. 1981 RD 191, Maharaj Singh another vs. Board of Revenue, U.P. and others.

3. 2015 All. C.J. 2440) Supreme Court Kirpal Kaur vs. Jitender Pal Singh and others“

5. I have considered argument advanced by learned counsel for the parties and perused the record.

6. There is no dispute about the fact that writ petition filed on the behalf of the petitioners/ applicants was dismissed after hearing the learned counsel for both the parties.

7. So far as scope of the review proceeding is concerned, the perusal of ratio of law laid down by Hon’ble Apex Court will be necessary. Hon’ble Apex Court in the case reported in JT 1997 (8) SC 480, Parsion Devi and Others Vs. Sumitri Devi and Others has held as under in Paragraph Nos.7, 8 & 9:-

“7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. [AIR 1964 SC 1372 : (1964) 5 SCR 174] (SCR at p. 186) this Court opined:

“What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an ‘error apparent on the face of the record’). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an ‘error apparent on the face of the record’, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by ‘error apparent’. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.”

8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170] while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [(1979) 4 SCC 389] this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.

9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise”.

8. The Judgment of Parsion Devi (supra) has been followed by Hon’ble Apex Court in the subsequent judgment reported in JT 2002 (10) SC 197 (State of Haryana & Others Vs. Mohinder Singh & Others).

9. Hon’ble Apex Court in the case reported in 2023 160 RD107 (S. Madhusudhan Reddy Vs. V. Narayana Reddy and Ors. and S. Narsimha Reddy Vs. V. Narayana Reddy and Ors. has held that review is not rehearing of the proceeding which has been decided on merit.

10. In the instant case, the consolidation authorities have decided in the title proceeding in respect to the plot in question that Dewan Singh can not be recorded over the plot in question and decision of consolidation authorities was maintained by Hon’ble Apex Court. It is also material to mention that right and title of petitioners/ applicants, if any, will depend upon the right and title of Dewan Singh, which has already been decided in the consolidation proceeding that Dewan Singh cannot be recorded over the plot in question rather respondent Nos. 6 to 9 are entitled to be recorded over the plot in question. The aforementioned aspect of the matter was taken into consideration by Ist appellate court as well as 2nd appellate court, while deciding the dispute in appeal arising out of proceeding of suit under Section-134 of U.P.Revenue Code, 2006.

11. This Court while deciding the instant writ petiton has considered the aforementioned aspect of the matter in the light of finding recorded by Ist appellate court holding that there is no illegality in the judgment & decree passed by Ist appellate court decreeing the suit under Section 134 of U.P. Revenue Code, 2006 filed by respondent Nos. 6 to 9 whose right and title was affirmed in the title proceeding under U.P. Consolidation of Holdings Act, 1953.

12. Considering the entire facts and circumstances of this case as well as the ratio of law laid down by Hon’ble Apex Court on the exercise of review jurisdiction, there is no scope of interference by this Court in exercise of review jurisdiction against the final judgment dated 18.03.2024 passed by this Court on merit.

13. The review application is accordingly rejected.

Order Date :- 6.5.2025

PS*