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1982 DIGILAW 950 (ALL)

Arjun v. Board of Revenue

1982-08-17

K.N.MISRA

body1982
JUDGMENT K.N. Misra, J. - Heard learned counsel for the petitioner and perused order passed by the Board of Revenue. 2. The relevant facts giving rise to this writ petition are as follows :- "An application for mutation was tiled by Smt. Sumitra Devi, opposite party no. 2 on the basis of a lease executed by Land Management Committee. This application for mutation was filed on 22nd November, 1972 on the basis of lease dated 14th November, 1972. An objection was filed by petitioner Arjun claiming the land in dispute to be belonging to him and that Gaon Sabha has no right, title or interest in it. The Sub-Divisional Officer allowed the mutation application. Aggrieved by the order, the petitioner filed revision under Section 218 of the Land Revenue Act (hereinafter to be referred to as the Act). Additional Commissioner, Meerut, submitted reference dated 2nd August, 1974 to the Board of Revenue recommending that the order of mutation passed in favour of opposite party No. 2 be set aside observing that the land in dispute was not recorded in the name of Gaon Sabha. This reference was fixed for hearing before the Board of Revenue at Lucknow and was dismissed in default on 1st January, 1979 as in spite of notice neither the petitioner nor his counsel appeared to press the revision. The petitioner on 14th December, 1979 moved an application for restoration alleging that he had no notice about the date of the hearing in the case and as such the revision be restored and heard on merits. The application for restoration was dismissed by the Board of Revenue vide order dated 29th August, 1981 with the observations that the reasons given in the application for restoration explaining delay in filing the restoration application were not satisfactory. The revision was dismissed on 1st January, 1979 while the restoration application was moved after a long delay on 14th December, 1979. A registered notice was sent intimating the date of hearing and in these circumstances the Board of Revenue was not satisfied with the reasons indicated for the delay in filing the restoration application and dismissed it. Aggrieved by the said order, this writ petition has been filed by the petitioner in this Court." 3. A registered notice was sent intimating the date of hearing and in these circumstances the Board of Revenue was not satisfied with the reasons indicated for the delay in filing the restoration application and dismissed it. Aggrieved by the said order, this writ petition has been filed by the petitioner in this Court." 3. Learned counsel for the petitioner contended that when a reference was made under section 218 of the Act by the Additional Commissioner with the observation that the order of mutation passed by the trial court was illegal, the reference could not be dismissed in default and the Board of Revenue acted illegally and without jurisdiction in dismissing it. Learned counsel further contended that when the record of the case was summoned and it was before the Board of Revenue, the revision could not be dismissed in default and it should have been restored. He further pointed out that sufficient reasons were shown for restoring the revision and the Board of Revenue acted illegally in dismissing it. In support of his contention learned counsel placed reliance upon a decision of this Court in Mohammad Sajed Quresi and another v. Mst. Sabira and another, 1976 A.W.C. 775 wherein it was observed that:- "It is, therefore, clear that if the District Judge had no jurisdiction to dismiss the revision for default his order dismissing the same could not amount to a dismissal on merit but only an order without jurisdiction. If the District Judge passed an order committing illegality by dismissing the revision for which he had no jurisdiction, it was wholly within his jurisdiction to rectify the said mistake by recalling that order and restoring the revision to its original number." 4. The said decision is not applicable in the present case. The revision in the said case was filed under section 115, Code 01 Civil Procedure. Learned counsel for the petitioner contended that there is no difference between Section 115, Code of Civil Procedure and Sections 118 and 119 of the Land Revenue Act. I am unable to agree with this contention. Proceedings under the Land Revenue Act are merely summary in nature and in these proceedings, rights and title of the parties are not determined. Learned counsel for the petitioner contended that there is no difference between Section 115, Code of Civil Procedure and Sections 118 and 119 of the Land Revenue Act. I am unable to agree with this contention. Proceedings under the Land Revenue Act are merely summary in nature and in these proceedings, rights and title of the parties are not determined. The decisions given under the provisions of the Land Revenue Act are always subject to the decisions in the regular title suit and such decisions do not operate as res judicata, as is manifest from the provisions contained in Section 40A of the Land Revenue Act which provides that no order passed under Section 33, Section 35, Section 39, Section 40, Section 41 or Section 54 shall bar any suit in competent court for relief on the basis of a right in a holding. Thus, the revision arising out of proceedings under Section 34 and filed under Sections 218 and 219 of the Land Revenue Act cannot be equated with the revision filed under Section 115, Code of Civil Procedure. Similar is the case with regard to revisions filed under Section 48 of the U.P. Consolidation of Holdings Act and, thus, the case law cited by the learned counsel for the petitioner in support of his contention, which relates to the provisions of Section 48 of the U.P. Consolidation of Holdings Act, is also not applicable to the present case. 5. Learned counsel contended that Division Bench of this Court in Karihai v. Roop Ram, 1972 A.L.J. 1047 observed that :- " After the calling of the record the only thing required to be done is to hear and decide the case on merits. The Division Bench emphasised in Abdul Junaid's case, 1972 A.W.R. 292 that Section 48 of the U.P. Consolidation of Holdings Act confers powers upon the Director to be exercised accordingly to the needs of justice. The applicant really recedes into the backgrounds after the Court has called for the record. After the record has been called for, it is incumbent upon the authority to decide the case according to its justice ; because he has power to exercise the revisional powers suo motu. He can and should interfere suo motu to do justice. After he has sent for the record, he should not dismiss the revision on a mere technical ground" (Emphasis supplied). 6. He can and should interfere suo motu to do justice. After he has sent for the record, he should not dismiss the revision on a mere technical ground" (Emphasis supplied). 6. Under Section 48 of the U.P. Consolidation of Holdings Act, the Deputy Director of Consolidation has got jurisdiction to pass such orders as it may deem fit after summoning the record and the revision cannot be dismissed on mere technical grounds. There is, thus, no dispute with the proposition of law Laid down in the said case (2). But the said decision cannot be interpreted as laying down that once the record of the case has been summoned, the revision cannot be dismissed in default because dismissing a revision in default cannot be said to be dismissing it on mere technical ground. It is altogether a different matter that the Deputy Director of Consolidation may consider the case on merits suo motu instead of dismissing the revision on technical grounds, namely, being not made in accordance with provisions Laid down under Rule 11 of the U.P. Consolidation of Holdings Rules or it was filed beyond time, if it was found that the impugned order deserved to be set aside in the interest of justice. Under the provisions of the U.P. Consolidation of Holdings Act, right and title of the parties are finally determined and as such the Deputy Director of Consolidation has to exercise power under Section 48 with great care and caution and to see that no injustice is caused to a party by any error of fact or law appearing in the record which, if brought to his notice, has got to be corrected in spite of the fact that the revision filed was found defective or was presented beyond time. Such power can no doubt be exercised by the Deputy Director of Consolidation, but that will not mean that the Deputy Director of Consolidation cannot dismiss a revision to default. So is also the case with the revisions under Section 118 or 119 of the U.P. Land Revenue Act. 7. The moot question for consideration in the present case is whether a reference or revision under the U.P. Land Revenue Act can be dismissed in default or not. So is also the case with the revisions under Section 118 or 119 of the U.P. Land Revenue Act. 7. The moot question for consideration in the present case is whether a reference or revision under the U.P. Land Revenue Act can be dismissed in default or not. On this direct question, it would be relevant to refer to Section 200 of the U.P. Land Revenue Act, which provides that :- "Whenever any party to such proceeding neglects to attend on the day specified in the summons or on any day to which the case may have been postponed, the court may dismiss the case for default or may hear and determine it ex parte." 8. The said express provision gives power to Court to dismiss a case in default or to hear and decide it on merits ex parte. This provision would govern not only the original proceedings under Section 34 of the U.P. Land Revenue Act, but also appeals and revisions as well. Section 199 of the U.P. Land Revenue Act provides that in any proceeding of a judicial nature pending before any Revenue Court, if either party desires the attendance of witnesses, he shall follow, the procedure prescribed by the order XVI, Rules 2 to 4, Code of Civil Procedure. Subsequent Section 200 of the Act provides that if any party to such proceedings (emphasis supplied) neglects to attend on the day specified in the summons or on any day to which the case may have been postponed, the court may dismiss the case for default or may hear and determine it ex parte. A reading of these two sections together makes it clear that the provisions contained under Section 200 of the Act would apply to proceedings before any Revenue Court and as such the power to dismiss the revision in default rests in the revisional Court. The provisions contained under Section 200 of the Act cannot be confined in its application to original proceedings alone. Similar matter cropped up for consideration before Board of Revenue in the case Mula Singh v. Gaon Sabha, 1921 (V) R.D. 72 wherein it was observed that :- ".......the words in Section 199 "any proceeding of a judicial nature pending before any Revenue Court" are wide enough to cover appellate Courts and Section 20j of the Land Revenue Act does apply to such Courts." 9. The Board of Revenue, in my opinion, has taken a correct view on the subject and I find that the provisions contained in Section 200 of the U.P. Land Revenue Act would apply not only to original proceedings but also to appeals and revisions under the Act and the Revisional Courts are possessed with the power to dismiss a revision in default. In this view of the matter, I do not find any substance in the aforesaid argument of the learned counsel for the petitioner that the Revisional Court had no jurisdiction to dismiss a reference/revision in default. 10. There is yet another ground to reject this writ petition. The reference/revision arises out of mutation proceedings under Section 34 of the Act. The proceedings under Section 34 of the Act are summary proceedings in nature and in view of the provisions contained under Section 40-A of the Act, any decision given in mutation proceedings would be open to challenge in a title suit and it would always remain subject to decision in a title suit. The aggrieved party has, therefore, an alternative remedy for seeking redress of his grievance and for getting his title determined by filing a regular title suit in respect of the land in dispute. This Court in Jaipal Minor v. The Board of Revenue, U.P., Allahabad and others, 1956 A.L.J. 807 observed that :- "It has been the consistent practise of the High Court not to interfere with orders made by the Board of Revenue in cases in which the only question at issue is whether the name of the petitioner should be entered in the record of rights. That record is primarily maintained for revenue purposes and an entry therein has reference only to possession, Such an entry does not ordinarily confer upon the person in whose favour it is made any title to the property in question, and his right to establish his title thereto is expressly reserved by Section 40(3) (now section 40-A) of the Laud Revenue Act. "The only exception to this general rule is in those cases in which the entry itself confers a title on the petitioner by virtue of the provisions of the U.P. Zamindari Abolition and Land Reforms Act." 11. "The only exception to this general rule is in those cases in which the entry itself confers a title on the petitioner by virtue of the provisions of the U.P. Zamindari Abolition and Land Reforms Act." 11. The present case does not fall in that class of cases in which mutation entry will give a right in the land in question to the opposite party No. 2, Smt. Savitri Devi and as such I am of the opinion that the petitioner will not be prejudiced in any manner whatsoever by the entry made in favour of opposite party No. 2. 12. Similar view was taken in Lekhraj and another v. The Board of Revenue and others, 1980 A.L.J. 905 and it was observed that :- "Accordingly, I uphold the preliminary objection raised on behalf of opposite party No. 4 and dismiss this petition under Article 226 of the Constitution on the ground of the existence of an equally efficacious alternative remedy by way of filing a regular suit to establish title." 13. In this view of the matter, I am of the opinion that the present writ petition is not maintainable because the petitioner has got equally efficacious alternative remedy for determination of his title by way of filing regular suit and the impugned mutation order passed in favour of opposite party No. 2, will not operate as res judicata between the parties in the title suit. 14. In the result, the writ petition, being devoid of merit, is accordingly dismissed in limine.