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2009 DIGILAW 3456 (ALL)

JANG BAHADUR v. COMMISSIONER, FAIZABAD

2009-11-10

Y.K.SANGAL

body2009
JUDGMENT Hon’ble Y.K. Sangal, J.—This writ petition has been filed to set aside the order passed by respondent No. 1 Commissioner, Faizabad dated 21.8.2009 and also order passed by respondent No. 2 District Magistrate, Ambedkarnagar dated 19.6.2009 and it was further prayed to direct the respondent No. 4 to postpone the mutation proceedings pending before him in respect of the land in dispute till the disposal of O.S. No. 429 Jang Bahadur v. Smt. Dhansira, under Section 229-B of the U. P. Z. A. & L. R. Act (hereinafter referred as Act) pending before opposite party No. 3. 2. Brief facts of the case are that respondent No. 5 showing herself wife of Banshu deceased got mutated her name in the revenue record. When this fact came to the notice of the petitioner, he filed suit before respondent No. 3 under Section 229 B of the Act to expunge the name of respondent No. 5 from the revenue record. Respondent No. 3 vide its order dated 23.10.1999 restrained the opposite party No. 5 from selling the land in dispute to some other person till further orders of the Court, but during the pendency of the suit, with a view to garb the land of the petitioner, respondent No. 5 moved an application before the respondent No. 2 for granting permission to sell the land which was granted to her on 19.6.2009. This order was challenged before the Commissioner, respondent No. 1 in revision No. 840/967 but the learned Commissioner without entering into the merits of the case saying that impugned order is an administrative order and revision against the same is not maintainable, dismissed the revision. Later on respondent No. 5 under the permission, sold the property in dispute to respondent No. 6 vide sale-deed dated 4.7.2009 and respondent No. 6 applied for mutating her name in the revenue record. The matter is pending before the Tahsildar concerned. 3. Counsel for respondent No. 6 put in his appearance and filed Vakalatnama today. Counsel for caveator for respondent No. 5 is also present. 4. Heard counsel for the petitioner, Standing Counsel and the counsel for respondents No. 5 and 6. 5. The matter is pending before the Tahsildar concerned. 3. Counsel for respondent No. 6 put in his appearance and filed Vakalatnama today. Counsel for caveator for respondent No. 5 is also present. 4. Heard counsel for the petitioner, Standing Counsel and the counsel for respondents No. 5 and 6. 5. Undisputed facts are that the name of respondent No. 5 is recorded in the revenue record as tenure holder and she had sold her share in the property in dispute to respondent No. 6 vide sale-deed dated 4.7.2009 after obtaining required permission under the provisions of Section 157-A of the Act respondent No. 6 and had also applied to mutate her name in the revenue record in place of respondent No. 5. It is also not disputed by the counsel for respondents No. 5 and 6 that a suit under Section 229 B of the Act was filed by the petitioner in the Court of respondent No. 3 and stay was issued by the Court and direction was made to respondent No. 5 not to sell the property during the pendency of the suit but learned counsel for respondents No. 5 and 6 argued that the petitioner did not come in the Court with clean hands and concealed the correct facts. The suit of the petitioner was dismissed on 31.3.2002 and stay granted was vacated by the Court, now restoration application is pending since 2006. He further said that no stay order passed by any Court was in force when the sale-deed was executed by respondent No. 5 in favour of respondent No. 6. At this stage, learned counsel for petitioner conceded the correctness of the fact that the suit of the petitioner was dismissed and now restoration application is pending and it is also not disputed that no stay order of the Court of respondent No. 3 is in force. Why these important facts were concealed by the petitioner and he has not come with clean hands before this Court, is not sufficiently explained on behalf of the petitioner. 6. From the facts of the case, it is clear that after obtaining the required permission from the competent authority the respondent No. 5 had executed the sale-deed in favour of respondent No. 6 and respondent No. 6 had applied to mutate her name in the revenue. 6. From the facts of the case, it is clear that after obtaining the required permission from the competent authority the respondent No. 5 had executed the sale-deed in favour of respondent No. 6 and respondent No. 6 had applied to mutate her name in the revenue. It is established law that entries in the revenue record are made for fiscal purposes and by these entries, right, title and interest of the parties in disputed property are not decided.Parties are free to get decided their right and title for the property in dispute from a competent Court even the entries in the revenue record are in favour of the opposite parties. The entries are only made for the purpose of collecting land revenue. If later on it is found that during pendency of the suit under Section 229 B of the Act respondent No. 5 was not having any right to transfer the property in dispute sale-deed will be hit by the principle of Lis pendence under Section 52 of the Transfer of Property Act and this transaction will be deemed as void transaction and competent Court will have the power at the time of final judgment in the case to issue directions to the authorities concerned to strike of the name of respondent No. 6 if recorded in mutation proceedings already pending before the competent authority. In the circumstances, if required relief in this regard is not granted to the petitioner, it will not make any effect in the mater. 7. Further petitioner has challenged the correctness of the order passed by respondent No. 2 granting permission of sale of the land in dispute to respondent No. 5 in favour of respondent No. 6. After exercising its jurisdiction and considering the facts of the case respondent No. 2 had passed the order dated 19.6.2009. There is no dispute that respondent No. 5 belongs to scheduled caste and a permission was required to her under Section157-A of the Act for selling her property from the competent authority. She had shown the need of selling the property in her application. After considering the ground, her application was allowed by Collector. As the order was administrative order, giving reasons, learned Commissioner has also dismissed the revision. What was the reason under Section 157-A of the Act to refuse the permission not explained on behalf of the petitioner. She had shown the need of selling the property in her application. After considering the ground, her application was allowed by Collector. As the order was administrative order, giving reasons, learned Commissioner has also dismissed the revision. What was the reason under Section 157-A of the Act to refuse the permission not explained on behalf of the petitioner. This is now admitted fact that sale-deed has already been executed under the permission granted by respondent No. 2, so the prayer to set aide the order of respondents No. 1 and 2 now become infructuous also. In the circumstances of the case, there was no illegality, invalidity and impropriety in the orders passed by respondents No. 1 and 2 in granting permission to sell the property. If suit filed by the petitioner before the competent Court is decreed finally, it will have its own effect and this permission will not come in the way of the Court concerned to pass necessary orders in the matter also to expunge the name of respondent No. 6 if recorded. 8. From the above all discussion, it is clear that the writ petition has not been filed bonafidely and material facts have been concealed by the petitioner and he has not approached this Court with clean hands. 9. This writ petition is accordingly dismissed. ————