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2006 DIGILAW 2430 (ALL)

AYUB AHMAD v. STATE OF U P

2006-09-22

VINEET SARAN

body2006
VINEET SARAN, J. Heard Sri Ashok Trivedi, learned Counsel for the petitioner as well as learned standing Counsel appearing on behalf of respondent Nos. 1 and 2 and Sri Triveni Shanker for the private respondent Nos. 3 to 7. Counter and rejoinder-affidavits have been exchanged between the parties and with the consent of the learned Counsel for the parties this writ petition is being disposed of at the admission stage. 2. The brief facts of this case are that in the year 1996 the petitioner filed Suit No 25 of 1996 under Section 229b of the Uttar Pradesh Zamindari Abolition and Land Reforms Act before the Assistant Collector, Dhampur. District Bijnor with the prayer to pass a decree for declaration that the petitioner is the bhumidhar of plot No. 1 in question measuring 8 bighas 18 biswas. The trial Court framed preliminary issue as to whether in view of the provisions of the Administration of Evacuee Property Act, 1950 (for short Act of 1950) and Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for short Act of 1954) the trial Court has jurisdiction to hear the matter. After recording a categorical finding that the plot in dispute was an evacuee property which was transferred by the Government of India in 1963 in favour of Jivan Das and Kripa Ram and thereafter by successive transfers to the respondents and no objections to the same had been raised by the father of the petitioner, who was alive till 1980, the preliminary issue was decided holding that the suit would be barred under Sections 28 and 46 of Administration of Evacuee Property Act, 1950 and Section 36 of Displaced Persons (Compensation and Rehabilitation) Act, 1954. The appeal filed by the plaintiff-petitioner was allowed by the Additional Commissioner vide order dated 22-6-1998 on the ground that whether the entire plot had been transferred or not was a question of fact which ought to have been decided by the trial Court. The findings of fact recorded by the trial Court were, however, not set aside by the first appellate Court. Aggrieved by the said order the private respondents filed a second appeal before the Board of Revenue which has been allowed by order dated 7-5-2004. The findings of fact recorded by the trial Court were, however, not set aside by the first appellate Court. Aggrieved by the said order the private respondents filed a second appeal before the Board of Revenue which has been allowed by order dated 7-5-2004. The plaintiff-petitioner has thus filed this writ petition challenging the aforesaid order dated 7-5-2004, passed by the Board of Revenue and has further prayed that his suit under Section, 229b of the Uttar Pradesh Zamindari Abolition and Land Reforms Act may be decided on merits. 3. Having heard learned Counsel for the parties and considering the facts and circumstances of this case I do not find it to be a fit case for interference under Article 226 of the Constitution of India. 4. The Board of Revenue in its judgment in the second appeal filed by the respondents herein has rightly observed that "from the perusal of documentary evidences it is apparent that the plot in dispute was declared a composite evacuee property and the custodian has transferred the entire land in dispute to Jivan Das and Kripa Ram through sale certificate on 8-7-1963 and the sale certificate has the reference of composite property of disputed land declared under Displaced Persons (Compensation and Rehabilitation) Act, 1954. The name of the transferees on the entire land in dispute on the basis of mutation proceedings find place in the extracts of khatauni of 1361 fasli and 1362 Fasli available on the record. Zahoor Ahmad or his ancestors did not challenge this proceedings before the custodian or in the mutation Court. Jivan Das and Kripa Ram sold their share to Mustaq, Eshtiyak and Mustakeem who in their turn sold share to present appellants Mohd. Khalil and others and purchasers name has all along been mutated on the basis of sale deeds and no objection was filed from the side of respondent No. 3 (petitioner in this writ petition) at any stage. The village was also notified under consolidation operation but the respondent did not take any steps and the entries of appellants name stood in the records on the basis of sale deed and mutation order, it is worth considering that the names of the other side are not found recorded in the revenue record after 1950 and long standing entries in the revenue records cannot be overturned or disbelieved. The appellants are the owner in possession over the whole land in dispute by way of successive registered sale deed and it is also well-settled in law that the registered sale deeds of 1963 are binding until they are declared void by the competent Court of law. The sale certificate executed by the custodian is a record and categorical proof that the whole land in dispute was composite and evacuee property and the lower appellate Court has ignored the same and as such has committed a manifest error of law in not believing the same. Thus, the remand of the case is unwarranted and in violation of the provisions of law. The orders passed by the competent authority under the Act of 1950 and Act of 1954 cannot be looked or examined by any Court. The trial Court has considered each and every aspect of the case, legal and factual, and the order passed on 30-9-1977 is just, legal and sustainable". 5. The aforesaid findings of fact are categorical and clear, and in the absence of the petitioner bringing on record anything to the contrary, the same cannot be disturbed. 6. Although the petitioner has not filed the sale deed dated 8-7- 1963, the same has been filed by the private respondents alongwith the counter-affidavit. A perusal of the same makes it clear that entire plot No. 1 alongwith other plot Nos. 2 and 29, which were all evacuee property, had been transferred by Government of India in favour of Jivan Das and Kripa Ram on 8-7- 1963 which was subsequently transferred to some other persons and then to the respondents herein. The categorical findings of fact recorded by the trial Court that entire plot No. 1 had been transferred by the Government of India by a sale deed, and thus the property in question would be an evacuee property, had not even been upset by the first appellate Court. The petitioner has also not been able to satisfy this Court that there was any manifest error of fact or law apparent on the face of the record in arriving at that finding of fact. The petitioner has also not been able to satisfy this Court that there was any manifest error of fact or law apparent on the face of the record in arriving at that finding of fact. Since the property in question, for which a suit had been filed by the petitioner for a declaration under Section 229b of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, was an evacuee property, the trial Court has rightly declined to entertain the suit in view of the bar under the Acts of 1950 and 1954. referred to above. 7. Besides the aforesaid, the petitioner has approached this Court under its extraordinary writ jurisdiction which is a discretionary jurisdiction and the Court can always decline to interfere in a matter when equity is not in favour of the petitioner. In the present case, in the facts as enumerated above, equity is totally against the petitioner and is in favour of the respondents, and as such also no interference is called for with the impugned orders. 8. For the foregoing reasons, this writ petition lacks merit and is, a accordingly, dismissed. No order as to cost. Petition dismissed. .