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R.PRASAD AND HARIHAR PRASAD versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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R.Prasad And Harihar Prasad v. State Of U.P. And Others - WRIT - C No. 40176 of 1992 [2007] RD-AH 9533 (18 May 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

(Court No.23)

Civil Misc. Writ Petition No.40176 of 1992

Rajendra Prasad and Harihar Prasad Versus State of U.P and others.

Hon'ble S.U.Khan J

Heard learned counsel for the parties.

Even though the judgements passed by the prescribed authority and Commissioner are 100 percent in accordance with law and absolutely no fault can be found with the legal approach of the courts below still matter has to be decided in favour of the petitioner and the impugned orders are bound to be set-aside on the ground that earlier Additional Commissioner on 31.7.1986 had taken erroneous view of law and remanded the matter for redetermining the ceiling area. Unfortunately State did not challenge the order dated 31.7.1986. The said order was passed by the Commissioner in Revenue Appeal No. 39 of 1983 Rajendra Prasad Vs. State of U.P. The contention of petitioners Rajendra Prasad and Harihar who are sons of Laxmi Narain was that even though in the revenue records name of their father Laxmi Narain continued to be entered uptil 1986 still as they were born before Zamindari Abolition and as the land was Sir and Khudkasht of their father hence they had birth right. Additional Commissioner accepted the said case of petitioners and remanded the matter through order dated 31.7.1986. After remand prescribed authority in case No. 15 of 1991-92 State Vs. Laxmi Narain (who died during pendency of the proceedings before the prescribed authority) through judgement and order dated 22.6.1992, held that in case the case set up by the sons of Laxmi Narain was correct then at the time of Zamindari Abolition their names should have been entered in the revenue records. The prescribed authority / A.D.M (Rural Area) Allahabad further found that there was no evidence that Laxmi Narain inherited Sir and Khudkasht land from his fore fathers. The view taken by the prescribed authority is perfectly in accordance with the view of  Supreme Court taken in the authority reported in AIR 2005 SC 582. I have also taken similar view in Kailash Vs. State 2007 (102) RD 301. Against judgement and order dated 22.6.1992, petitioners filed appeal being Appeal No. 27 of 1992. Appeal was dismissed by Additional Commissioner (Administration) Allahabad on 28.8.1992, hence, this writ petition.

As stated above, even though the judgments passed by the prescribed authority and Commissioner are 100 percent in accordance with law, however, they are liable to be set-aside as point decided through the said judgement had already been decided otherwise and in favour of petitioners by Additional Commissioner in his earlier judgement dated 31.7.1986 passed in Revenue Appeal No. 39 of 1983 . The State ought to have challenged the said judgement. Even in this writ petition no counter affidavit has been filed. Virtually through the said judgment everything was decided. It was only matter of calculation which was remanded. The last sentence of the said judgement is quoted below:

The appeal is therefore allowed partly and case  remanded for redetermining surplus land in accordance with the findings above.

Writ petition is accordingly allowed. Both the impugned orders are set-aside. Matter is remanded to the prescribed authority to redetermine the ceiling land in accordance with the judgment of Additional Commissioner dated 31.7.1986.

18.5.2007/Waqar


Copyright

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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