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Parbhu v. Addl. Collector, Sant Ravidas Nagar And Others - WRIT - C No. 536 of 2002  RD-AH 11045 (3 July 2007)
(Judgment reserved on 17.04.2007)
(Judgment delivered on 03.07.2007)
Civil Misc. Writ Petition No.536 of 2002
Parbhu Vs. Additional Collector and others
Hon'ble S.U. Khan, J.
Heard learned counsel for the petitioner and contesting respondent No.4-Mata Saran.
The dispute in the instant case relates to plot No.899. Petitioner claimed that the said plot was allotted by Gaon Sabha to him on 20.05.1964. However, for mutation of his name in the revenue records over the said plot on the basis of said Patta, petitioner filed application in 1989, i.e. after 25 years of alleged allotment. His application was allowed by Tehasildar and his name was mutated. Thereafter, in 1991, respondent No.4-Mata Saran instituted case No.444/326/222 of 1991 by filing application against petitioner before Additional Collector, Sant Ravidas Nagar, under Section 198(4) of U.P.Z.A. & L.R. Act for cancellation of Patta. Additional Collector through the order dated 24.09.1998 allowed the application and cancelled the patta. Against the said order petitioner filed revision No. 57 of 1998. Commissioner Vindhyachal division Mirzapur dismissed the revision on 23.3.2001. Through this writ petition order of the Additional Collector dated 24.9.1998 has been challenged. It is strange that no prayer for setting aside order of revisional court dated 23.3.2001 has been made.
The case of respondent No. 4 Mata Saran who filed application for cancellation of Patta was that over the plot in dispute his house Verandah, courtyard etc was situate and apart from him other persons of the village were also having their houses. It was also stated that petitioner's house was also situate over portion of plot in dispute.
Both the courts below doubted the factum of grant of Patta in favour of the petitioner. It was further held that Patta was also illegal. They also observed that meanwhile consolidation had intervened and during consolidation no objection was filed by the petitioner. They also took into consideration the undue delay of 25 years on the part of the petitioner to apply for mutation.
Under section 198 (4) of the Act application for cancellation of Patta may be filed. However, if a case is taken that Patta was in fact never granted then such question can not be decided in proceedings under section 198 (4) of the Act. For cancellation of Patta, proceedings after 25 years may not be maintainable. However, the Supreme Court in U.P. State Sugar Corporation Vs. D.D.C AIR 2000 SC 878 has held that jurisdiction to grant Patta may be seen in consolidation proceedings or regular suit also and proceedings under section 198 (4) of the Act are not the only remedy for cancellation of Patta. The fact as to whether Patta was granted or not can be adjudged only in regular suit.
If respondent No.4 or any other person asserts that he has got his abadi / house over part of land in dispute then the said fact has to be decided by some court.
Accordingly, writ petition is disposed of with the liberty to respondent No.4 and /or any other person who may be having his abadi / house over any portion of plot No. 899 to file regular suit for declaration and injunction etc. If such a suit is filed then the same shall be decided without being influenced by mutation order passed by the Tehsildar or orders dated 24.9.1998 and 23.3.2001 passed by Additional Collector and Commissioner on the application of respondent No.4. In the suit factum as well as validity of Patta shall be adjudged, if such pleas are raised. It is needles to add that alongwith suit application for temporary injunction may also be filed.
For a period of six months parties shall maintain status quo and no house existing over the land in dispute shall be demolished.
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