For context, Article 144 of the 2006 Code deals with declaratory proceedings brought by tenure holders and Article 38 (1) deals with a request for correction of any error or omission in the Map, Deposited Book (Khasra) or Register of Rights (Khatauni) to be addressed to the Tahsildar concerned.

In the present case, 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 to correct errors in the Khatauni (land registers).

The suit was contested by the petitioner (Mahendra Singh)and the court expunged the name of the petitioner from the records in May 2016 and ordered that the entries be made in the name of the contesting defendants.

The petitioner did not contest this order, so it became final. This means that the claim of the petitioner based on the sale deed has been rejected.

However, the petitioner, while concealing the details of an earlier proceeding under Section 38(1), filed a suit under Section 144 of the Code (in November 2016), claiming possession of the land disputed on the basis of an oral deed of sale (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 request and was binding on the current suit.

In May 2017, the trial court dismissed the petitioner’s complaint as improper. A petition for review filed before the Board of Revenue was also denied.

The petitioner has now moved the High Court, arguing that the trial court as well as the revisional court had failed to consider that the question of maintainability could be considered only after framing the preliminary question.

It was 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.

On the other hand, the learned counsel appearing for the contesting respondents submitted that the petitioner has not denied that the details of the earlier proceedings concluded under Section 38(1) of the 2006 Code were not disclosed in the complaint and that, since its conclusions could be relevant, both courts rightly ruled that the suit was not admissible.

In the context of these observations, a bench of Justice Saurabh Shyam Shamshery observed that although the proceedings under section 38(1) of the Code, 2006 are summary in nature and do not constitute a final decision, the proceedings initiated under section 144 of the Code, based on an act of verbal sale, presumed possession and adverse possession, must include findings related to the deed of sale as part of the procedure.

“…it is well settled that the proceedings arising under Section 38(1) of the Tax Code are summary in nature and its findings cannot constitute a final decision on the matter. Nevertheless, since the suit was filed on the basis of an oral deed of sale and alleged possession thereof as well as a plea of ​​adverse possession, any finding regarding the deed of sale must therefore be part of the pursuit…», remarked the Court.

The Court added that the petitioner should have appeared before any court with clean hands. Therefore, the Court emphasized that he was legally required to disclose the previous proceedings, but it is true that he did not do so, which constitutes an unfavorable factor.

With regard to the other argument, that questions have to be proved to consider the application under Order VII Rule 11 CPC (dismissal of the plaint), the Court said that the argument was not well-founded since the merits of the case need not be considered at the stage of consideration of an application under Order VII, Rule 11 CPC.

In this regard, the Court referred to the recent decisions of the Supreme Court in the case Koum. Geetha, D/o late Krishna and Ors. Against. Nanjundaswamy and Ors. 2023 LiveLaw (SC) 940And Eldeco Housing and Industries Limited v. Ashok Vidyarthi and others 2023 LiveLaw (SC) 1033.

In the aforesaid circumstances, this Court affirmed the impugned orders while granting liberty to the petitioner to file a fresh complaint under Order VII, Rule 13 CPC, regarding the same cause of action, while disclosing all the facts , including the previous procedure.

Petitioner’s advice: VK Ojha

Advice from respondents: Rahul Sahai

Case Title – Mahendra Singh vs Board Of Revenue UP and 5 others

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