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Beer Singh And Others v. The Custodian General Of India And Others - WRIT - C No. 37826 of 2000 [2006] RD-AH 8281 (25 April 2006)


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Beer Singh and others.                                         ....Petitioners


The Custodian General of India and others.         ...Respondents


Hon'ble Bharati Sapru, J.

The petitioner in the present petition Shri Beer Singh is the son of one late Hari Singh who was granted a Bhoomidari Sanand on 20.2.1960.  The property in question was the property of one Husaini Begum whose property was declared to be the Evacuee Property.  

After the grant of Sanand in the year 1960, Shri Hari Singh and his heirs, thereafter, came in to possession of the property in dispute situated at new plot No.496 and 497 in village Nanula, Tehsil Deoband, District Saharanpur.  It is admitted to both parties that Shri Hari Singh has been recorded as the legal occupant of the property aforesaid in the year 1363 Fasli.  Thereafter, in the year 1970 one Sahid Husain claimed that he was the heir of Husaini Begum and claimed that the property should be restored to the heirs of Husaini Begum.  During the course of the proceedings, an order was passed on 3.4.1980 but the Court below held that Sahid Husain claimed to prove that he had any relationship with Smt. Husaini.  The order-dated 3.4.80 was challenged by Sahid Husain and an order was passed on 26.9.94 by which, the matter was remanded back by the respondent No.2 to the respondent No.3 for decision afresh.  

After the remand, the respondent No.3 vide order dated 27.5.2000 released the property from the custodian and directed the Tahsildar for mutation of the name of Smt. Husaini.  

Against the order-dated 27.5.2000, the petitioner filed the present revision.  The respondents No.4 & 5 took an objection that revision has been filed against dead persons.  

The petitioner also moved an application for deleting the names of respondents No.2,4, & 5 saying that they were not necessary parties.  

Meanwhile on 2.8.2000, the respondent No.3 further modified the order dated 27.5.2000 pending revision and directed the revenue authorities to mutate the name of Smt. Husaini and left it open that the parties may approach the appropriate Court for getting the question as to who were the heirs of Husain Smt. Husaini decided.  

Against the order dated 2.8.2000, the petitioner has preferred a revision No.11/1999/2000 before the Board of Revenue which is still pending for decision.  

There is yet another order under challenge, i.e. an order dated 11.10.2000.  The respondent No.2 has dismissed the revision of the petitioner on the ground that it has been filed against dead persons.  By the order-dated 11.10.2000, the petitioners were permitted to file a fresh revision after impleading the heirs of respondent No.2, 4 & 5.

Thus the petitioner has challenged against orders dated 26.9.94(Annexure-8), 27.5.2000 (Annexure-12), 2.8.2000 (Annexure-13) and 11.8.2000 (Annexure-15) to the writ petition.  The prayer of the petitioner is that all these orders be quashed and a mandamus be issued restraining the respondents from interfering with the possession of the petitioners over the plot No.20009 (now plot No.496 and 497) situated in village

Nanula, Tehsil Deoband, District Saharanpur.

I have heard learned counsel for both the parties.  The factual position which emerges is that undoubtedly the father of the petitioner Shri Beer Singh was granted a Sanand of the property in dispute after due observations of all necessary formalities on 20.2.1960 and was recorded as the Bhumidar of that land.  He had peacefully held the said property for a period of ten years,  when in the year 1970 certain persons came and claimed rights over the property in dispute through Smt. Hasaini, who had been declared as the Evacuee.  Once the Sanand had been granted to a person in a valid manner, any objection, which was made to such a Sanad should have been decided properly and in accordance with law.  The petitioner could not have been simply ousted on the basis of the judgment of the appropriate Court due to a decision that in fact, the claimants who were seeking to have rights over the property were actually persons who could rightfully or legally claim under Smt. Husaini Begum.  

The petitioner has already filed a revision being revision No.11/9/2000 before the Board of Revenue, which is still pending for consideration.  

Learned counsel for the petitioner has objected that his application for deleting the respondents No.2,4 &5 has been wrongly rejected by the Court below and he says that they were not corrected by the late Husaini Begum in any manner and the petitioner was not seeking any relief against them and, therefore, his application for revision of their names should have been allowed.   He has also argued that earlier also they were never made parties but simply because they were brothers of Sahid who had filed the objection, they had been made Performa parties.

Having heard learned counsel for the petitioners as well as learned counsel for the respondents; I am of the firm opinion that the entire matter needs to be reconsidered by the appropriate Court.  All these issues can be decided in revision No.11 /99/2000 which is pending before the Board of Revenue.  This writ petition contains disputed questions of facts.  The controversy involved in this case involves decision on disputed questions of fact, which cannot be gone in the proceedings under Article 226 of the Constitution of India and must necessarily be decided by the appropriate Court.  

I, therefore, remand the matter back to the Board of Revenue to reconsider the issue relating to the claims made by Sahid, after giving both the parties proper opportunities of hearing and of pleading evidence.  It is expected that the Board of Revenue will move expeditiously in the matter and shall re-open the matter immediately on production of a certified copy of this order.  

Till decision by the Board of Revenue, the possession of the petitioner shall not been disturbed.  It is hoped that the Board of Revenue shall conclude the matter within a period of two years.  

With these observations, the writ petition is disposed of.  There will be no order as to costs.

Dated : 25/4/06



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