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SMT. VINDHYAWASINI DEVI & OTHERS versus BOARD OF REVENUE & OTHERS

High Court of Judicature at Allahabad

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Smt. Vindhyawasini Devi & Others v. Board Of Revenue & Others - WRIT - C No. 30318 of 2005 [2007] RD-AH 6380 (6 April 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

"Reserved"

Civil Misc. Writ Petition No. 30318 of 2005.

Smt. Vindhyawasini Devi and others.

Versus

Board of Revenue and others.

.................

Hon'ble Anjani Kumar, J.

This writ petition under Article 226 of the Constitution of India arising out of the following set of facts as emerges after the exchange of the pleadings by the parties.  Sri Paltoo Lal gave a lease of plot no. 90 (0.61 acre), plot no. 91 (.13 acre) and plot no. 92 (.55 acre) to Sri Kanhaiya Lal Agrawal in the year 1938 for a period of 11 years on an annual rent of Rs.150/-.  In the year 1950, suit no. 411 of 1950 was filed by the heirs of Paltoo Lal, namely Sri Shanti Lal (husband of Smt. Vindhyawasini Devi), Kanti Lal, Narsing Lal and wife of Paltoo Lal against Phool Chand (father of Sri Krishna Agrawal), Ram Kumar and Kanhaiya Lal, the respondents in the present writ petition.  On 1st July, 1952, when the suit was pending, the provisions of  U.P. Zamindari Abolition and Land Reforms Act came into force and by virtue of the operations of the law, Kanhaiya Lal became Sirdar of plots in dispute, namely, plot nos. 90, 91 and 92.  on 9th January, 1953, the suit was decreed by the trial Court.  Against the order dated 9th January, 1953, an appeal was filed by the defendants of the suit and predecessors in the interest of the present respondents in the present writ petition being appeal no. 49 of 1953.  In the year 1953, an application was filed on behalf of the plaintiffs-respondents in the appeal to withdraw the suit with permission to file fresh suit. In April, 1954, the aforesaid application was allowed and the suit was dismissed as withdrawn with the condition that the fresh suit shall be filed only after payment of cost.  No fresh suit was filed, nor the cost was paid by the plaintiffs.  Sri Kanhaiya Lal, brother of Sri Phool Chand died issue less.  His name is recorded in the revenue records as he was in possession of the plots in dispute and with the permission of the Jamindar, his name was recorded in 1356 Fasli ( Zaman 8).  After the death of Sri Kanhaiya Lal, Sri Phool Chand became heirs of the plots in dispute.  On 18th July, 1956, Sri Phool Chand executed a sale deed selling his business of Surkhi Choona to Sri Thawar Das, but the plots in dispute was not sold, it is only the business which was sold.  On the same day, namely 18th July, 1956 a registered agreement was executed between Phool Chand and Thawar Das to the effect that Thawar Das shall make the payment of Rs.7,000/- within a period of one year to get sale deed executed for the land.  Sri Thawar Das failed to perform his part of the agreement.  On 27th December, 1967, an order was passed under Section 34 of the Land Revenue Act for mutation of name of Sri Phool Chand in place of Sri Kanhaiya Lal  in Khasra no. 1373, but by mistake the entry was incorporated in Malikana register, which was subsequently made.  In the year 1969, the suit no. 240 of 1969 was filed by Phool Chand against Thawar Das for possession and recovery of arrears of rent.  Sri Thawar Das also filed suit being suit no. 137 of 1969 seeking relief for declaration that he be declared as owner of plots in dispute.  It is during the pendency of suit no. 137 of 1969, Phool Chand died and in his place respondent no. 5 in this writ petition is substituted.  On 19th April, 1971, an impleadment application was filed by husband of Smt. Vindhyawasini Devi impleading petitioners 2 and 3 in suit no. 137 of 1969 and 240 of 1969 on the ground that they have every right and title over the plots in dispute.  To the aforesaid impleadment application, objections were filed  by respondent no. 5 and his brother stating that after the abolition of the Zamindari, they became the Sirdar and Smt. Vindhyawasini Devi. Petitioner no.1, has no more title.  On 14th May, 1971, the date when the objection was filed, the petitioners were asked to show the evidence that the plots in dispute have gone in the municipal area and that the provisions of U.P. Zamindari abolition and Land Reforms Act are                                                                                                                                                                                                                                                                                                                                                         not applicable to the plots in dispute.  No documents or evidence, in this regard was adduced by the petitioners that the plots in dispute were not covered by the U.P. Zamindari Abolition and Land Reforms Act.  On 1st June, 1971, the impleadment application field by husband of Smt. Vindhyawasini Devi for impleading the petitioners 2 and 3 has been dismissed and the Court directed the petitioners to file fresh suit in case they feel aggrieved.  Against the order dated 1st June, 1971 by which the impleadment application has been dismissed, the petitioners filed revision, which was dismissed by the revisional Court vide its order dated 15th February, 1973, which has been annexed as Annexure-'12' to this writ petition.  Despite the direction issued by the trial Court, no suit was filed and the plaintiffs-petitioners were fully aware of the  tile of respondent no. 5 over the plots in dispute.  On 23rd July, 1975, both the suits, namely suit no. 137 of 1969 and 240 of  1969 were decided on merits and suits were decreed.  Aggrieved by the order dated 23rd July, 1975, Thawar Das filed appeal.  The plaintiffs-petitioners filed their written statement, but plots in dispute, namely plot nos. 90, 91 and 92 were not shown are not claimed by petitioners.  The appellate authority  vide order dated 15th May, 1976 dismissed the appeal filed by Thawar Das.  Thereafter aggrieved by the order dated 15th May, 1976, Thawar Das filed second appeal before this Court, which was allowed by this Court vide order dated 21st September, 1983.  This Court in its judgement and order dated 21st September, 1983 has held that Ram Kumar, the respondent no. 5 was Sidrar up to 1977 and thereafter became Bhumidhar by operation of law. Against the judgement and order dated 21st September, 1983, the respondent filed Special Leave Petition before the Apex Court.  The Apex Court vide order dated 20th august, 1999 allowed the Special Leave Petition filed by the respondent and set aside the order passed by this Court dated 21st September, 1983 in second appeal.  The apex Court in its judgement and order dated 20th August, 1999 has held that the sale deed dated 21st April, 1984 is effective sale deed.  Coming to the chain of events after the Special Leave Petition was filed by the respondent, the sale deed was executed on 21st April, 1984 in pursuant to the execution of decree during the pendency of the second appeal filed by the respondents, still no action has been taken by the petitioners for declaring themselves as owner of the plots in dispute.  On 18th October, 1988, the petitioners filed  a case under Section 33/39 being case no. 353 of 1987, which was dismissed.  On 18th January, 1989 a restoration application was moved for restoration of the case no. 353 of 1987, which was dismissed vide order dated 21st February, 1989.  Further a restoration application was moved on 6th September, 2000 for setting aside the order dated 21st February, 1989 by which the earlier restoration application was dismissed.  On 27th October, 2001 the possession was delivered from the heirs of Thawar Das to the contesting respondents.  Smt. Vindhyawasini Devi filed an application on 24th October, 2001 before the District Magistrate on administrative side to delete the name of respondents over the plots in dispute.  On the same day i.e. 24th October, 2001, the District Magistrate  directed the Chief Revenue Office to make inspection and report.  On 31st October, 2001 another application was moved by Smt. Vindhyawasini Devi before the Chief Revenue Officer.  On coming to know that having full knowledge that the possession has already been delivered to the respondents in this petition on 27th October, 2001.  In this application and the proceedings before the District Magistrate has been concealed by the petitioner that the case under Section 33/39 of the Act has already been dismissed and only the restoration application is pending.  On 1st November, 2001, the Chief Revenue Officer passed an order on a local holiday directing the station house officer to ensure status-quo with regard to the plots in dispute be mentioned, whereas the Chief Revenue Officer was only directed to submit a report by the order of the District Magistrate dated 24th October, 2001, thus he went beyond the order passed by the District Magistrate. On 4/5th December, 2001, the respondents moved an application bringing to the notice of the District Magistrate that the application moved by Smt. Vindhyawasini Devi is abuse of the process of the Court and was not even maintainable and that the order passed by the Chief Revenue Officer dated 1st November, 2001 is wholly without jurisdiction. The District Magistrate directed the respondents on 5th December, 2001 to construct the boundary wall to protect the land, but has said nothing about the order dated 1st November, 2001 passed by Chief Revenue Officer.  On 8th March, 2002, communication by the Additional District Magistrate that the order dated 1st November, 2001 has been recalled and the enquiry has been completed.  On 26th March, 2002, the District Magistrate passed another order asking the petitioner to get the forged entry in favour of the respondents corrected.  On 8th April, 2002 the order dated 26th March, 2002 was communicated by the Additional District Magistrate to the petitioner as well as the respondents.  On 12th April, 2002, the petitioner met the Commissioner, Gorakhpur Division, Gorakhpur and on political influence, the Commissioner asked for a report from the District Magistrate.  In the order asking for report passed by the commissioner, which is impugned in the present writ petition that the Devendra Pratap Singh, member Vidhan Parishad has met the Commissioner and the order was being passed under his dictate.  On 15th April, 2002 the District Magistrate directed the Additional District Magistrate to take action against the persons and communicate it to the Commissioner.  He has held that the entries of the respondents are forged without giving any opportunity of hearing to the respondents acting on the administrative side.  On 24th April, 2002, the D.G.C. Revenue gives his opinion to the Sub Divisional Magistrate for initiating proceedings under Section 33/39 of the Land Revenue Act.  On the opinion of the D.G.C. Without there being any application by the petitioners for initiating proceedings under Section 33/39 of the Land Revenue Act, the case was registered by the Sub Divisional Magistrate under Section 33/39 of the Act.  On 6th May, 2002, the respondents filed writ petition before this Court being civil misc. writ petition no. 18200 of 2002 challenging the order dated 15th April, 2002.  This Court stayed the operation of the order dated 15th April, 2002 and despite the aforesaid interim order passed by this Court, the Sub Divisional Magistrate proceeded with the case.  On 25th June, 2002, the application for restoration of the order dated 21st February, 1989 was dismissed by the court.  On 17th October, 2003, the aforesaid interim order was also vacated.  On 19th November, 2003 the Sub Divisional Magistrate directed deletion of the entries in favour of the respondents in this petition holding them to be Furzi.  The respondents preferred revision before the Board of Revenue and the Board of Revenue while entertaining the revision have stayed the order passed by the Sub Divisional Magistrate on 13th January, 2004.  on 16th March, 2005, the revision filed by the respondents was allowed and the order dated 19th November, 2003 passed by the Sub Divisional Magistrate was set aside, thus this writ petition.

The Board of Revenue has held that the revisionist before the Board of Revenue, namely, the respondents in the present petition, whose name is continuously being recorded for fairly long time, the same cannot be deleted/expunched in the proceedings under Section 33/39 of the Land Revenue Act before the Board of Revenue.  Before the Board of Revenue, the revisionist have relied upon a decision of the civil Court dated 1st June, 1971, wherein the civil Court has held in litigation between the parties, which reads thus :

"The applicants alleges themselves to be holding superior title.  The extract of Khatauni for the year 1375 Fasli shows only Kanhaiya Lal to be the recorded Sirdar of the disputed land.  The extract further shows that the land is under Zamindari Abolition area.-----The applicants contends that the entries in Khatauni are wrong. If it is so they may file a separate suit to establish their right if any against the parties to the suit and the State Govt."

The provision of proviso to Section 33 of the Land Revenue Act has been quoted by the Board of Revenue, particularly the proviso, which reads thus :

"Provided that the power to record a change under Clause (b) shall not be construed to include the power to decide a dispute involving any question of title."

The Board of Revenue has recorded a finding that under the circumstances of the present case, the knowledge of the forged entry having come to the petitions of the present petitioners when the writ petition in the year 1971 was filed, which is evident from the record and the civil Court has also advised that they could get the entries corrected in accordance with law.  Despite this observation made in the year 1971 by the civil Court, the respondents have not initiated any proceedings and it is only after 30 years that they have filed application under Section 33/39 of the Land Revenue Act.  The Board of Revenue  has held that with regard to the title, the entries in Khatauni cannot be taken as absolute, it is only presumptive value and any person who is aggrieved may challenge the aforesaid presumptive entry before the competent Court and may get his right and tile adjudicated upon.  The respondents in the revision and the petitioners in the present petition have not challenged the entries, which are coming down for more than 30 years. That despite the observation made the civil Court in the year 1971. the petitioners have not challenged the entries before the regular Court. The Board of Revenue has observed that the proceedings under Section 33/39 of the Land Revenue Act therefore cannot be used for the purposes  and set aside the order passed by the District Magistrate dated 19th November, 2003 and held that in case the petitioners in this petition desires or so advised, may file a regular suit before the competent Court and get his right or title adjudicated upon.

Learned counsel appearing on behalf of the contesting respondents has raised a preliminary objection and relied upon the following decisions of this Court, namely 1989 R.D., 35 - Shiv Raj Gupta Vs. Board of Revenue, U.P. and others; 2002 R.D., 363 - Ram Shiroman and another Vs. Dy. Director of Consolidation and others, and 2002 (93) R.D., 365 - Nagai and another Vs. Board of Revenue and others.

As against this, learned counsel appearing on behalf of the petitioners argued that it was not open to the Board of Revenue to have set aside the order passed by the District Magistrate in the facts and circumstances of the present case.  Learned counsel for the petitioners further submitted that the provisions of Section 219 of the Land Revenue Act, 1901 and a perusal thereof clearly provides that it is open to the Board of Revenue  who may call for the records for the purposes of satisfying himself as to the legality or propriety of the  or the order passed or proceeding held in a Court sub-ordinate to it with the powers of the Board of Revenue that the sub-ordinate Courts- (a) exercised  a jurisdiction not vested in it by law, or (b) failed to exercise a jurisdiction so vested, or (c) acted in the exercise of jurisdiction illegally or with material irregularity.  He further submitted that the phraseology used by Section 219 of the Land Revenue Act is similar to the phraseology used in Section 48 of the U.P. Consolidation of Holdings Act, 1953.  He therefore relied upon the decisions on the provision of Section 48 of the U.P. Consolidation of Holdings act submitted that since this Court has repeatedly held that this Court can interfere with the orders passed by the sub-ordinate Courts under Section 48 of the Act only in conditions specified under the provisions of Section 48 of Consolidation of Holdings Act.  The refusal to interfere by the Board of Revenue in the present case in exercise of jurisdiction under Section 219 of the Land Revenue Act therefore deserves to be set aside. The order of Board of Revenue, therefore, deserves to be set aside by this Court. The aforesaid argument of learned counsel cannot be accepted in view of the proviso to Section 33 of the Land Revenue Act. Thus the order of the Board of Revenue does not suffer from any infirmity or irregularity, which may attract the interference by this Court.

I have given my considerable thoughts to the arguments advanced on both the sides and I am of the opinion that since the Board of Revenue have not entered into the question or right or title on the ground that this Court has held that the proceedings under Section 33/39 of the Land Revenue Act do not confer any power to the sub-ordinate authorities to adjudicate upon the right or title. Thus the refusal of Board of Revenue from interfering with the impugned order does not require any interference of this Court. It is open to the present petitioners to get their right or title adjudicated upon by the competent Court.  This view of mine is supported by series of decisions of this Court as well as by the Apex Court, which are 2002 (93) R.D., 363 - Qari Naimuddin Vs. Commissioner, Meerut Division, Meerut and others; 1999 (90) R.D., 416 - Narain Singh Vs. Additional Commissioner, Meerut and others; 1986 R.D., 302 Brahma Deo and others Vs. Board of Revenue, U.P. and others; A.I.R. 1957 Alld., 205 - Jai Pal Singh Vs. Board of Revenue, U.P. and others ; 1989 R.D., 35 - Shiv Raj Gupta Vs. Board of Revenue, U.P. and others; 1991 R.D.,(DB) 72 - Ram Bharose Lal Vs. State of U.P. and others; and 2001 (1) A.W.C., 613 - Kunj Behari Vs. Board of Revenue, U.P., Lucknow and others.

In this view of the matter, since I am of the opinion that the order passed by the Board of Revenue does not warrant any interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India, this writ petition deserves to be dismissed and is herewith dismissed with costs.  The interim order, if any, stands vacated.

Dated: 06.04.2007.

Rks.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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