The Allahabad High Court while disposing a petition said that a suit filed under Section 144 of the UP Revenue Code 2006 based on oral sale deed must disclose findings of proceedings under Section 38 (1) of the Revenue Code.
A Single Bench of Justice Saurabh Shyam Shamshery passed this order while hearing a petition filed by Mahendra Singh.
In the case, father of the contesting respondent nos 4 and 5 has filed a suit under Section 38(1) of the Uttar Pradesh Revenue Code, 2006 for correction of errors in the records of rights i.e Khatauni.
The said suit was contested by the petitioner and the same was allowed by a reasoned order dated 28.5.2016 and entries made in the name of the petitioner were expunged and names of the contesting respondents were directed to be entered.
It is not in much dispute that there was no challenge to said order at the instant of the petitioner. Accordingly, it has attained finality and claim of the petitioner on basis of a sale-deed in regard to the land in dispute was rejected so far as correction of record was concerned.
The petitioner concealing details of above referred proceedings as well as its outcome has subsequently filed a suit under Section 144 of the Code on 3.11.2016 and claimed land in dispute on basis of a possession on oral baynama as well as on plea of adverse possession.
The Court noted that a purported application under Order VII Rule 11 C.P.C was filed by the defendants/contesting respondents for rejection of the plaint on a ground that petitioner/plaintiff has not come up before the Court with clean hands and concealed a material fact i.e outcome of the earlier proceedings that his claim on basis of alleged sale-deed was rejected in a proceedings arising out of Section 38(1) of the Code, which has attained finality and has bearing on suit also.
V.K. Ojha, appearing on behalf of the petitioner, has submitted that the Trial Court as well as the Revisional Court has not considered that the issue of maintainability could be considered only after framing of preliminary issue. However, without framing any issue the suit was rejected, and as such the relevant provisions of C.P.C i.e Order XIV Rule 1 (1 to 6) were not complied with.
Counsel also submitted 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.
Per contra, Rahul Sahai appearing on behalf of the contesting respondents has submitted that the petitioner has not denied that details of earlier proceedings concluded under Section 38(1) of the Revenue Code, 2006 were not disclosed in the plaint and since its finding may have relevance, therefore, both the Courts have rightly held that the suit was not maintainable.
The Court observed that,
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 as well as the petitioner ought to have came before any Court with clean hands, therefore, he was under legal obligation to disclose the earlier proceedings, but admittedly he has not done so, therefore, he has not come with clean hands before the Court, which is a adverse factor.
So far as other argument is concerned, that to consider the application under Order VII Rule 11 C.P.C, issues are required to prove has no merit and for that a reference is taken from the above referred judgments that at the stage of consideration of application under Order VII Rule 11 C.P.C, merit of the case is not required to be considered, since it is an application for rejection of the plaint.
In the aforesaid circumstances, the Court opined that there is no illegality in the orders dated 6.6.2022 and 27.5.2017. However, under Order VII Rule 13 C.P.C, the petitioner has still liberty to present a fresh plaint in respect of the same cause of action.
Therefore, while rejecting the prayers of the petition, the Court further observed that the petitioner can take benefit of Order VII Rule 13 C.P.C, if so advised. However, he has to disclose all the facts including the earlier proceedings also.
In pursuance to the previous order passed by the Court, concerned S.D.M and the S.H.O were present in Court and they have tendered unqualified apology that they have acted in haste without considering that the petition was pending before the Court. However, they assure that such acts will not be repeated in future.
The Court directed the District Magistrate, Prayagraj as well as the Commissioner of Police, Prayagraj to communicate to their officers that if the manner of doing a particular act is prescribed under a provision of law, the act must be done in that manner or not at all.
Accordingly, the Court disposed of the petition.