UP Revenue Code | Suit Filed U/S 144 Based On Oral Sale Deed Must Disclose Findings Of Proceedings U/S 38 (1), If Any: Allahabad HC

For context, Section 144 of the 2006 Code deals with Declaratory suits by tenure holders and Section 38 (1) deals with an application for correction of any error or omission in the map, filed-book (Khasra) or record of rights (Khatauni) to be made to the Tahsildar concerned.

In the case at hand, the father of the contesting respondents (Nos. 4 and 5) filed a suit under Section 38(1) of the Uttar Pradesh Revenue Code, 2006, seeking correction of errors in the Khatauni (land records).

The suit was contested by the petitioner (Mahendra Singh), and the court expunged the petitioner's name from the records in May 2016 and directed the entries to be made in the names of the contesting respondents.

The petitioner did not challenge this order, so it attained finality. This meant the petitioner's claim based on the sale deed was rejected.

However, the petitioner, while concealing the details of earlier proceedings under Section 38 (1), filed a suit under Section 144 of the Code (in November 2016), claiming possession of the disputed land based on an oral sale deed (baynama) and adverse possession.

The contesting respondents filed an application under Order VII Rule 11 of the CPC, arguing that the petitioner had concealed material facts, particularly the outcome of the earlier proceedings under Section 38(1), which had already rejected the petitioner's claim and was binding on the current suit.

In May 2017, the trial court rejected the petitioner's suit as unsuitable. A revision petition before the Board of Revenue was also dismissed.

Now, the petitioner moved the High Court, arguing that the Trial Court as well as the Revisional Court had not considered that the issue of maintainability could be considered only after framing the preliminary issue.

It was also argued that since the nature of the proceedings under Section 38(1) of the Code does not create any right, therefore, its disclosure was not mandatory.

On the other hand, the Counsel appearing on behalf of the contesting respondents submitted that the petitioner had not denied that the details of earlier proceedings concluded under Section 38(1) of the 2006 code were not disclosed in the complaint and since its finding may have relevance, both Courts rightly held that the suit was not maintainable.

Against the backdrop of these submissions, a bench of Justice Saurabh Shyam Shamshery observed that though the proceedings under Section 38(1) of the 2006 Code are summary in nature and do not constitute final adjudication, the suit filed under S. 144 of the Code, based on an oral sale deed, alleged possession, and adverse possession, must include findings related to the sale deed as part of the proceedings.

“…it is well settled that the proceedings arising out of Section 38(1) of the Revenue Code are summary in nature and its finding may not be final adjudication on the issue. Still, since the suit was filed on basis of a oral sale-deed and alleged possession thereon as well as on plea of adverse possession, therefore, any finding in regard to the sale-deed must be part of the suit…”, the Court remarked.

The Court added that the petitioner should have come with clean hands before any Court. Therefore, the Court underscored that he was legally obliged to disclose the earlier proceedings, but admittedly, he did not do so, which is an adverse factor.

So far as the other argument is concerned, that issues must be proved to consider the application under Order VII Rule 11 CPC (rejection of plaint), the Court said that the contention had no merits since the merits of the case are not required to be considered at the stage of consideration of an application under Order VII Rule 11 CPC.

In this regard, the Court referred to the Supreme Court's recent decisions in the case of Kum. Geetha, D/o Late Krishna & Ors. Vs. Nanjundaswamy & Ors. 2023 LiveLaw (SC) 940, and Eldeco Housing and Industries Limited Vs. Ashok Vidyarthi and others 2023 LiveLaw (SC) 1033.

In the aforesaid circumstances, the Court upheld the impugned orders while granting liberty to the petitioner to present a fresh plain under Order VII Rule 13 CPC in respect of the same cause of action while disclosing all the facts, including the earlier proceedings.

Petitioner's counsel: V.K. Ojha

Counsel for respondents: Rahul Sahai

Case title - Mahendra Singh vs. Board Of Revenue U.P. And 5 Others

Citation :

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