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MAHMOOD KASIM versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Mahmood Kasim v. State Of U.P. & Others - WRIT - C No. 52349 of 2006 [2006] RD-AH 16495 (20 September 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Civil Misc. Writ Petition No. 52349 of 2006

Mahmood Kasim vs. State of U.P.  & others

Hon'ble Krishna Murari, J.

Heard Sri Brij Raj Singh, learned counsel for the petitioner.

The facts giving rise to present dispute are as under :

The petitioner moved an application for mutation of his name over the land in dispute in the year 1992 on the basis of ''Dawami Patta' said to have been executed in the year 1949. The respondent no. 3 vide order dated 3.4.1992 expugned the name of the Gaon Sabha and directed the name of the petitioner to be recorded over the land in dispute. One Jagnoo filed an application for recall of the order dated 3.4.1992 on the ground that the land in dispute was already allotted to him and certain other persons who are in possession thereof and the order has been passed without any notice or opportunity of hearing to them and as such, is liable to be recalled. The respondent no. 3 vide order dated 18.8.1992 recalled the order dated 3.4.1992. Aggrieved, the petitioner filed an appeal which was allowed by respondent no. 2 vide order dated 3.11.1993. The application moved by Jagnoo to recall the said order was dismissed. Subsequently, another application was moved on behalf of the Gaon Sabha to recall the order dated 3.11.1993. Respondent no. 2 vide impugned order dated 31.5.2006 allowed the recall application and has remanded the case back to the respondent no. 3 to decide it afresh on merits after notice, opportunity of adducing evidence and hearing to the parties.

It has been urged by leanred counsel for the petitioner that the order dated 31.5.2006 has been passed on the recall application of the Gaon Sabha ex-parte without any notice or opportunity of hearing. It has further been urged that there was sufficient evidence on record to establish that ''Dawami Patta' was given to the petitioner in the year 1949 on the basis of which the name of the petitioner was rightly recorded by respondent no. 3 and there was no occasion to recall the said order and direct fresh adjudication.

I have considered the argument advanced by learned counsel for the petitioner and perused the record.

It is undisputed that the petitioner claimed rights and mutation of his name over the land in dispute in the year 1992 on the basis of a patta executed in 1949 i.e. after about 43 years. For this long period, the name of the Gaon Sabha was recorded over the land in dispute. Certain persons also filed objection in the proceedings stating the land in dispute was allotted to them. A perusal of the order dated 3.4.1992 passed by respondent no. 3 goes to show that the said order has been passed only on the basis of statement of the Gram Pradhan without analyzing the legality or validity of the alleged patta. There was no material on record before respondent no. 3 to establish that the petitioner was in possession over the said land except for the statement of the Gram Pradhan who accepted his possession. The land in dispute admittedly had been recorded in the name of Gram Sabha and the petitioner made his claim after a lapse of about 43 years and it was in the interest of justice that the dispute may be thrashed out properly after permitting the parties to adduce evidence. The revisional court has only remanded the matter back to be decided afresh after opportunity of adducing evidence and hearing to the parties. By the revisional order, a totally illegal order passed by respondent no. 3 has been set aside. Even though the revisional order may be an ex-parte order but it is only an order of remand and has set aside an illegal order as such no interference is called for. In any case the petitioner will have full opportunity to establish his claim, if any, on the basis of the alleged patta in the proceeding to be undertaken before respondent no. 3 in pursuance to the order of remand.

In view of the above, I find no good ground to interfere with the impugned order.

The writ petition accordingly, fails and dismissed.

Dt.20.9.2006

Nd.


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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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