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Chaman Dei & Others v. Addl. Commissioner, Saharanpur Mandal, Saharanpur & Others - WRIT - C No. 26447 of 2006 [2006] RD-AH 18157 (27 October 2006)


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Civil Misc. Writ Petition No. 26447  of 2006

Chaman Dei and others


Additional Commissioner, Saharanpur  and others

Hon'ble Krishna Murari, J.

Heard Sri Arjun Singhal,  learned  for the petitioners.

This petition arises out of proceedings under Section 33/39 of the U. P. Land Revenue Act (for short ''the Act).

The facts relevant for the purpose of the case are as under:

Proceeding  under Section 33/39 of the Act was initiated by the predecessor-in-interest of the petitioners for recording the name on the basis of sale deed dated 14.2.1977, said to have been executed by the recorded tenure holder. The said application was rejected by the Tehsildar vide order dated 24.10.1977, against which appeal was preferred which was allowed by the appellate court on 28.3.1978. The appellate order was challenged by respondent no. 3 by filing a revision which was dismissed on 28.7.1980. Second revision filed by respondent no. 3 before the Board of Revenue was also dismissed on 8.4.1996. Respondent no. 3 approached this Court by filing writ petition which was also dismissed on 30.10.1996. Thereafter, respondent no. 3 filed suit no. 85 of 1980 for cancellation of the sale deed. The said suit was decreed vide judgment dated 24.5.1980 and the sale deed was cancelled. Respondent no. 3 again moved an application under section 33/39 of the Act for recording the name and expunging the names of the petitioners on the basis of the decree canceling the sale deed. Sub Divisional Officer, Saharanpur vide order dated 23.6.2004 allowed the application filed by respondent no. 3. Aggrieved, petitioners filed a revision which was dismissed on 31.3.2006.

It has been urged   by the learned counsel for the petitioners that since an application under Order IX Rule 13 of the Code of Civil Procedure (for short ''the Code') was filed by the petitioners to recall the exparte decree dated 24.5.1980 cancelling the sale deed which is still pending as such court below is not justified in expunging the names of the petitioner. It has further been urged that earlier mutation order passed in favour of the petitioners had attained finality and his name could not have been expunged.

I have considered the arguments advanced by the learned counsel for the petitioners and perused the record.

The names of the petitioners came to be mutated on the basis of sale deed dated 14.2.1977 which was cancelled by decree dated 24.5.1980. Since the very basis of mutating the names of the petitioners i.e. sale deed stood cancelled, the names of the petitioners recorded in the record on the basis of the same has rightly been expunged by the court below. Merely because the application under Order IX Rule 13 of the Code filed by the petitioners to recall exparte decree is pending will not wipe the effect of decree of cancellation unless the same is set aside.

In view of the aforesaid, there is no force in the arguments advanced by the learned counsel for the petitioners. The writ petition is devoid of merits and is hereby dismissed.

However, considering the facts and circumstances that application for setting aside exparte decree is pending since 1996, the Civil Judge, Saharanpur where the said proceedings are pending, is directed to dispose of the same in accordance with law within a period of three months from the date of production of a certified copy of this order before him.

In the end, it was submitted by the learned counsels for the petitioners that contesting respondent may dispose of the property creating third party rights after her name is recorded in the records. The petitioners are free to move Civil Judge, Saharanpur where proceedings for recall of the exparte decree are pending for interim protection of their rights. In case such an application is filed, the same shall be disposed of by the Civil judge, Saharanpur in accordance with law within a period of three weeks from the date of filing of such application.



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