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SHYAM LAL versus COMMISSIONER, AZAMGARH DIVISION & OTHERS

High Court of Judicature at Allahabad

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Shyam Lal v. Commissioner, Azamgarh Division & Others - WRIT - C No. 37527 of 2000 [2005] RD-AH 7116 (7 December 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.26

CIVIL MISC. WRIT PETITION NO. 37527 OF 2000

Shyam Lal

versus

Commissioner, Azamgarh Division,  Azamgarh and others.

HON. SHISHIR KUMAR, J.

By means of the present writ petition the petitioner has approached this Court for quashing the order dated 7.7.1999 and 31.7.2000, Annexures 4 and 6 to the writ petition passed by respondents no.1 and 2 respectively.

The brief facts arising out of the present writ petition are that it has been alleged in the writ petition that the petitioner purchased plots no 749, 750, 751, 758, 791 and 795 which are part of Chak No. 45 and the total area of the purchased plots of this Chak is 80 decimal, through sale-deed. The petitioner has also purchased 7 decimal area of   plot no. 783 from its tenure holder Ganesh son of Jageshwar resident of village and P.O. Chhibbi, Tehsil Rasra, district-Ballia. The sale-deed was executed in favour of the petitoner on 17.3.1967. During the consolidation operation of the village, plots were renumbered as 776, 777,and 780. It was established by C.H. Form No. 41, which is a comparative table of old and new numbers. The petitioner being an illiterate person belonging to rural background is not aware regarding the legal procedure. On account of this the petitioner could not get his name mutated over the plots in dispute, which was purchased in 1967. Respondent no.3 fraudulently got himself recorded over the plots in dispute. Respondents no.4 and 5 preferred a suit under Section 229 B of the U.P. Zamindari Abolition and Land Reforms Act  ( in short the Act) against respondent no.3 and collusive compromise was entered into between the said parties. The competent authority passed an order-dated 6.8.1998 whereby the name of respondent no.3 was struck down from the aforesaid plots and in lieu thereof the names of respondents no.4 and 5 were recorded over the plots in dispute. The petitioner was not aware regarding the compromise decree. Respondent no.3 preferred a restoration application before the Up-Ziladhikari against the order-dated 6.8.1998. When this application was being contested by respondents no.4 and 5, then the petitioner came to know with regard to all the fraudulent activities whereby his title with regard to his land was being attempted to be taken away. The petitioner immediately preferred an application for impleadment on 16.11.1998. The said impleadment application was rejected by a non-speaking order dated 7.7.1999. Aggrieved by the aforesaid order, the petitioner has preferred a revision and that revision too has been dismissed by the impugned order dated 31.7.2000, a copy of which has been filed as Annexure-6 to the writ petition.

The petitioner submits that the petitioner had purchased the disputed land from the original tenant. It is well settled that the interested person can make an application for impleadment at any level in any proceeding. It is well settled that the provisions of Civil Procedure Code with regard to the suit is to be followed in respect of all proceedings in the court of civil jurisdiction, but this established legal principles has been ignored while passing the impugned order. A finding to this effect by the respondent no.1 that there is no justification to make impleadment for the petitioner in the restoration application, is a finding contrary to law and the procedure prescribed. As the orders passed by the respondent is anon-speaking order,  the same is liable to be quashed. The petitioner further submits that he is in possession over the plot in dispute; as such he is a necessary party. Aggrieved by the aforesaid order, the petitioner has approached this Court. By order dated 28.8.2000 notices were issued and status quo order was passed.

On the other hand a counter affidavit has been filed on behalf of the respondent no.3 who has submitted that it is wrong to say that any sale-deed was executed in favour of the petitioner by the land- user of the disputed land. During the consolidation proceedings the petitioner had contested this claim and the same was rejected by order dated 16.5.1974 passed by the Deputy Director of Consolidation and the answering respondent i.e. respondent no.3 was found to be Bhumidhar in possession of the disputed land. The judgment passed by the Deputy Director of Consolidation has become final. As such, the claim of the petitioner is barred by Section 48 of the U.P. Consolidation of Holdings Act. Further submission has been made that after the notification under Section 52 of the Consolidation of Holdings Act, the petitioner with a malafide intention and with an intention to harass the answering respondent filed a suit under Section 229-B of the Act concealing the material facts and has obtained an order which was without jurisdiction dt. 15.7.1986. When the respondent came to know regarding the aforesaid fact, an appeal was filed and the appeal was allowed vide its order dated 20.6.87 and the order passed by the trial court dated 15.5.86 was set aside and it was found that respondent no.3 is the Bhumidhar in possession and the claim of the petitioner is barred by Section 49 of the U.P.Consolidation of Holdings Act. The petitoner aggrieved by the aforesaid order preferred an appeal, which was numbered as Appeal No.47/86-87 before the Board of Revenue. The Board of Revenue vide its judgment and order dated 21.11.1995 has dismissed the second appeal. The finding recorded by the Board of Revenue has become final.

It appears that respondents no.4 and 5 who are the sons of the petitioner fled a suit under section 229-B of the Act by concealing this fact that the father of the petitioner has already lost up to the stage of Board of Revenue. The respondents no. 4 and 5 managed to get a compromise decree on the basis of the forged compromise entered into with some imposter with false signatures of the answering respondents and managed to record their names on the basis of the said compromise decree dated 6/7-8-98 behind the back of the answering respondents. When the answering respondents came to know regarding the aforesaid illegal compromise decree, they filed a restoration application on 7.10.1998 to recall the compromise decree. Immediately after the petitioner moved an application for impleadment, the same was rejected and the revision filed by the petitoner has also been dismissed. The answering respondents submitted that a finding of fact has been recorded by the authorities below that in the present facts and circumstances  the applicant cannot be impleaded as a party who was not a party to the original proceeding and while deciding the restoration application, there was no occasion for considering the application for impleadment and  the application of the petitioner has rightly been rejected.

I have heard the learned counsel for the petitioner as well as the respondents and have perused the record. Admittedly, the petitioner has participated in the consolidation proceedings and has lost, therefore, any proceeding subsequent to this, is barred by Section 49 of the U.P. Consolidation of Holdings Act. It is also to be considered that the matter has become final up to the stage of Board of Revenue. The Board of Revenue has also not accepted the claim of the petitioner and the second appeal filed was dismissed. It clearly goes to show from the record that when the petitioner became unsuccessful in grabbing the property, then he manipulated to file a suit by his sons respondents no.4 and 5. The submission of the learned counsel for the respondent is that Courts below have considered that the compromised decree, which has been passed, appears to be compromised by a person who is not respondent no.3. Taking into consideration that the restoration application was being considered, but only to delay the matter, the petitioner has made the present impleadment application, which in my opinion, has rightly been dismissed by the authority below. The finding of fact recorded by the revisional authority that application for impleadment could not be allowed unless and until it is established that a person wanted to be impleaded was a party to the original proceeding. As the petitioner was not a party to the suit, therefore, the courts below have rightly held that the application itself was not maintainable and was liable to be dismissed.

In view of the aforesaid facts, the present writ petition is devoid of merit and there cannot be any interference under Article 226 of the Constitution of India. The writ petition is hereby dismissed. Interim order, if any, stands discharged. No order as to costs.

7.12.2005

V.Sri/-


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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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