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2009 DIGILAW 3380 (ALL)

GYAN CHAND v. BOARD OF REVENUE

2009-10-30

S.S.CHAUHAN

body2009
JUDGMENT Hon’ble S.S. Chauhan, J.—The present petition has been filed challenging the order dated 31.8.1993 passed by the Board of Revenue and the order dated 3.2.1992 passed by the Additional Commissioner, Moradabad Division, Moradabad. 2. The dispute relates to plot No. 47 measuring 3.94 acres, plot No. 52 measuring 2.56 acres, plot No. 162 measuring 4.12 acres and plot No. 209 measuring 7.07 acres; the total area of all the plots is 17.69 acres. Name of Hari Prakash son of Darbari Ram/respondent and Musammat Khilanda Bai widow of late Hemraj (aunt of the petitioners) was entered jointly in the khatauni of 1373 fasli to 1375 fasli. In the same khatauni, name of Kishun Chand son of Khilanda Bai also came to be recorded. The petitioners came to India at the time of partition along with a group of Manak Chand, who was the group leader. Hemraj alias Hema Ram was alive at the time of partition and was a member of the said group. At the time of rehabilitation, the disputed property was given to Hemraj alias Hema Ram who died before commencement of Chakbandi operations. Smt. Khilanda Bai wife of Hemraj alias Hema Ram succeeded to the disputed property and died issueless. After her death, the petitioners being the sons of Sobha Ram being the natural heirs succeeded to the property. Father of Hari Prakash, namely, Darbari Ram had died in Pakistan and half of the area of the disputed plot was in the name of Hari Prakash and the other half in the name of Musammat Khilanda Bai. When the petitioners came to know about this, they filed objection under Section 34 of the U.P. Land Revenue Act (for short “the Act”) inter alia on the ground that Khilanda Bai widow of Hemraj died issueless and the petitioners are their heirs. Hemraj was brother of Sobharam and uncle of the petitioners. By virtue of the order passed by the Tehsildar, name of Hari Prakash and others was expunged. Name of the petitioners was entered in the half area of the plot and an appeal under Section 210 of the Act was filed before the Sub Divisional Magistrate, who allowed the appeal. Against the order of the Sub Divisional Magistrate dated 7.7.1980, a revision was preferred before the Commissioner. Against the order of the Commissioner, an appeal was preferred before the Board of Revenue which too was dismissed. Against the order of the Sub Divisional Magistrate dated 7.7.1980, a revision was preferred before the Commissioner. Against the order of the Commissioner, an appeal was preferred before the Board of Revenue which too was dismissed. Thereafter a Writ Petition No. 200 of 1990 was preferred before this Court at Lucknow Bench which is alleged to be pending. 3. The petitioners filed a suit under Section 229-B of the U.P. Z.A. and L.R. Act (for short “the Z.A. Act”) for declaration of their rights. The suit was decreed in favour of the petitioners. An appeal was filed against the judgment of the Sub Divisional Magistrate before the Additional Commissioner, who allowed the appeal. Against the order of the Additional Commissioner, a second appeal was filed before the Board of Revenue and the Board of Revenue proceeded to reject the appeal by its judgment and order dated 31.8.1993. Hence this writ petition. 4. Submission of learned counsel for the petitioners is that the evidence on record has not been evaluated and considered as required under law but the Court of Additional Commissioner as well as Board of Revenue has misdirected themselves in relying upon the finding recorded during the proceedings under Section 34 of the Act. The findings recorded under Section 34 of the Act are not conclusive and final but in fact these proceedings are summary in nature and so any evidence adduced in these proceedings cannot be made a basis for allowing the appeal. Learned counsel has further submitted that by relying upon the evidence of the mutation Courts, the rights of the petitioners have been adjudicated in an illegal and arbitrary manner and such finding cannot be said to be binding and neither any finding can be based on such evidence. The first appellate Court as well as the second appellate Court was required to consider the evidence lead before the Sub Divisional Magistrate in the suit filed under Section 229-B of the Z.A. Act. 5. Learned counsel for the opposite parties, on the other hand, has submitted that a cogent finding has been recorded on the basis of evidence and, therefore, no interference is required by this Court. The petitioners have no claim over the land in dispute. The trial Court has erroneously proceeded to allow the claim of the petitioners. The question of heirship has also been disputed by the counsel for the opposite parties. 6. The petitioners have no claim over the land in dispute. The trial Court has erroneously proceeded to allow the claim of the petitioners. The question of heirship has also been disputed by the counsel for the opposite parties. 6. I have heard learned counsel for the parties and gone through the record. 7. The record reveals that the Additional Commissioner and the Board of Revenue have proceeded to rely upon the finding recorded by the mutation Court under Section 34 of the Act and have based their judgment solely on the aforesaid finding. The finding recorded under Section 34 of the Act are summary in nature and they do not decide any title and moreover, in summary proceedings elaborate procedure of evidence is not adopted, nor the evidence is lead in extenso as in a regular suit. In summary proceedings only for the purposes of prima facie determining the title of the parties, the evidence is taken. If it is presumed that the said evidence is binding, there would be no occasion to allow the party to file a suit for declaration of his right which is settled law of this Court. Learned counsel for the petitioner has relied upon a judgment rendered in the case of Shiv Raj Gupta v. Board of Revenue, U.P. and others, 1989 RD 35, to buttress his argument that the competent Court while entertaining the regular suit ignores any such observation made by the Board of Revenue in mutation proceedings in regard to the title of the parties. He has also placed reliance upon an unreported revenue case rendered by this Court in Ram Kishan and others v. Deputy Director of Consolidation and another, to impress upon that while reversing the finding of fact, it is imperative on the part of the Deputy Director of Consolidation to give due consideration to all the facts and circumstances which were discussed by the Settlement Officer (Consolidation). He should record his finding after considering the entire evidence and the surrounding circumstances. Failure to take into account some of the vital facts amounts to a manifest error on the face of the record resulting in failure of justice. 8. He should record his finding after considering the entire evidence and the surrounding circumstances. Failure to take into account some of the vital facts amounts to a manifest error on the face of the record resulting in failure of justice. 8. Learned counsel for the petitioner has also placed reliance upon a judgment rendered by Hon’ble Supreme Court in the case of Inder Singh and another v. Financial Commissioner, Punjab and others, JT 1996 (10) SC 374, wherein it has been held as follows : “.....................Since the proceedings before the authorities is of summary nature, the doctrine of res judicata has no application. The act does not prescribe any principle of res judicata as such. The proceedings before the authorities are of summary nature. It would not be correct to apply the principle of res judicata. We find force in the contention. It is not in dispute that the order passed by the authorities is without any elaborate trial like in a suit but in a summary manner. It is well settled law that the doctrine of res judicata envisaged in Section 11 of C.P.C. has no application to summary proceedings unless the statute expressly applies to such orders. The authorities are not civil Court nor the petition a plaint. No issues are framed nor tried as a civil suit. Under these circumstances, the Division Bench of the High Court was clearly in error to conclude that the earlier proceedings operate as res judicata.” 9. In the case in hand also it is apparent that first appellate Court and the second appellate Court have proceeded to base their conclusive finding on the basis of finding recorded during the mutation proceedings. Such approach of the Courts below cannot be appreciated and on the face of it, it is evident that both the Courts below have committed manifest error of law in deciding the claim of the petitioners ignoring the relevant evidence which was available and adduced before the trial Court while deciding the suit. No such evidence has been discussed, neither any reference has been made to the evidence lead before the Sub Divisional Magistrate in the suit under Section 229-B of the Z.A. Act. The thrust of the finding of both the Courts below i.e. the Additional Commissioner and the Board of Revenue are solely based and persuaded on account of the finding recorded by the mutation Court. The thrust of the finding of both the Courts below i.e. the Additional Commissioner and the Board of Revenue are solely based and persuaded on account of the finding recorded by the mutation Court. Such approach of the Courts below is wholly illegal and cannot be sustained in law. 10. The writ petition is accordingly allowed. The order dated 31.8.1993 passed by the Board of Revenue and the order dated 3.2.1992 passed by the Additional Commissioner, Moradabad Division, Moradabad are hereby set aside. The matter is remitted to the Court of Additional Commissioner, Moradabad Division, Moradabad to restore the appeal to its original number and decide the same in the light of the observation made in this judgment within a short period, say preferably within a period of six months. The parties shall appear before the Additional Commissioner on 23.11.2009. 11. This direction is being issued on account of the fact that the matter is pending since long and it needs special attention of the Court. 12. There shall be no order as to costs. ————