For context, Article 144 of the 2006 Law deals with Determination cases filed by concessionaires and Section 38 (1) The map deals with the application to the Tahsildar concerned for correction of any error or omission in the filed book (Khasra) or register of rights (Khatauni).

In the present case, the defendant defendants’ father (Nos. 4 and 5) filed the suit. Uttar Pradesh Revenue Code Section 38(1), 2006 wants bugs fixed Hatauni (land records).

The case was appealed petitioner (Mahendra Singh)In May 2016, the court removed the plaintiff’s name from the records and ordered the records to be made in the name of the defendants.

Since the petitioner did not object to this order, the decision became final. This meant that the plaintiff’s claim based on the bill of sale was rejected.

However, while concealing the details of previous transactions under Article 38(1), the petitioner filed a suit under Article 144 of the Act (in November 2016) and claimed possession of the disputed land on the basis of oral contract of sale (bayname) and adverse possession .

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

In May 2017, the first instance court dismissed the plaintiff’s case as ineligible. The correction petition made to the Revenue Administration was also rejected.

Now, the petitioner has approached the Supreme Court, arguing that the Trial Court and the Revisional Court did not consider that the issue of maintainability could be taken up only after framing the preliminary issue.

It was further submitted that since the nature of the proceedings under Section 38(1) of the Act does not create any right, it is not necessary to disclose this aspect.

On the other hand, Counsel appearing for the respondents submitted that the petitioner did not deny that the details of the earlier proceedings concluded under Section 38(1) of the 2006 act were not disclosed in the complaint and in view of the relevance of this finding, both the Courts rightly held that the suit was not maintainable.

There is a group behind these applications. Judge Saurabh Shyam Shamshery It has been observed that though the proceedings under Section 38(1) of the 2006 Act are summary in nature and do not constitute final judgment, the suit filed under S. 144 of the Act based on oral contract of sale, alleged possession and adverse possession. , absolute Includes findings regarding the sale deed as part of the trial.

“…It is well established that proceedings arising under Section 38(1) of the Revenue Code are summary in nature and its finding may not be the final decision on the matter. However, since the suit was brought on the basis of an oral bill of sale and alleged possession thereof, as well as an allegation of adverse possession, therefore, any finding regarding the bill of sale must be part of the suit…”, remarked the Court.

The petitioner must appear before any Court with clean hands, the Court added. Therefore, the Court emphasized that it was legally obliged to disclose previous transactions, but admittedly it did not do so, and this was a negative factor.

As regards the other argument, these issues must be proven for the application to be considered under Order VII Rule 11 CPC (dismissal of suit); The court said that there was no merit to the claim as the merits of the case did not need to be considered. It is taken into account at the stage of evaluation of an application under Order VII Rule 11 CPC.

In this context, the Court referred to the recent decisions of the Supreme Court in the case. Sand. Geetha, D/o Late Krishna and Ors. etc. Nanjundaswamy and Ors. 2023 LiveLaw (SC) 940And Eldeco Housing and Industry Limited Vs. Ashok Vidyarthi and others 2023 LiveLaw (SC) 1033.

In the above-mentioned circumstances, the Court affirmed the impugned orders while granting liberty to the plaintiff to file a fresh statement under Order VII Rule 13 in respect of the same cause of action and to disclose all facts including the earlier proceedings.

Applicant’s lawyer: VK Ojha

Advice for participants: Rahul Sahai

Case title – Mahendra Singh vs. Board of Revenue UP & 5 Others.

Quotation:

Click Here to Read/Download the Order