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2011 DIGILAW 1968 (ALL)

VIJAY KUMAR v. ADDL. COMMISSIONER

2011-08-23

A.P.SAHI

body2011
JUDGMENT Hon’ble A.P. Sahi, J.—Heard learned counsel for the petitioners and Sri Ajit Srivastava holding brief of Sri S.K. Srivastava for respondent No. 3. 2. The petitioners have questioned the correctness of the jurisdiction of the authorities to proceed under Sections 33 and 39 of the U.P. Land Revenue Act for correction of entries on the ground that the petitioners’ predecessor in interest Smt. Lalta Kuwari had purchased the property from the widow of Kharpat and Mitthu in 1965 and since then they are continuing in the possession of the land in dispute and recorded as such. 3. The respondent No. 3 is the daughter of Late Kharpat, who moved an application on 28.11.2008 praying therein to expunge the name of the petitioners on the ground that the land could not have been subject-matter of sale. The Tehsildar submitted some report and orders was passed on 13.1.2011 by the respondent No. 2 as a result whereof the names of the petitioners were expunged. 4. On coming to know of this ex parte order, the petitioners filed a restoration application on 14.3.2011 and the Sub-Divisional Magistrate stayed his own order on 22.3.2011. The restoration application was finally allowed on 2.6.2011. Against which, the respondent No. 3 preferred a revision before the Commissioner, who entertained the same treating it to be maintainable and has passed an interim order. Aggrieved Sri R.C. Singh, counsel for the petitioners, contends that the restoration application has only be allowed and the application filed by the respondent No. 3 is yet to be adjudicated on merit and, as such, the revising authority exercised its jurisdiction erroneously by granting the interim order. 5. Sri Srivastava, learned counsel for respondent No. 3, contends that on merit the petitioners have no claim and even otherwise the application, which has been filed by the answering respondent, narrated the correct facts and hence the order dated 13.1.2011 was perfectly justified. He prays that the matter be disposed of finally at this stage itself as he does not propose to file any counter-affidavit at this moment. Learned Standing Counsel submits that the matter being purely legal, the same can be disposed of at this stage itself. Accordingly, under Rules of the Court, the matter is being disposed of finally. 6. He prays that the matter be disposed of finally at this stage itself as he does not propose to file any counter-affidavit at this moment. Learned Standing Counsel submits that the matter being purely legal, the same can be disposed of at this stage itself. Accordingly, under Rules of the Court, the matter is being disposed of finally. 6. Having heard learned counsel for the parties, it is evident that the application moved by the respondent No. 3 was of the year 2008 which was almost after 43 years of the sale-deed stated to have been executed in favour of the petitioners predecessor in interest. The contention raised by the petitioners is that Sections 33 and 39 is for summary proceedings which cannot be utilized for the purpose of upsetting the title under the sale-deed and in case any party had any grievance, then the appropriate remedy was to file an appropriate Suit questioning the sale-deed on the basis whereof title is being claimed by the petitioners. This having not been done, the remedy of Sections 33 and 39 could not have been adopted as this was not a case of correction of entries. 7. In view of the submissions so raised, the learned Commissioner, without considering the impact of the said submission, has admitted the revision and passed an interlocutory order. In my opinion, the Commissioner has committed an error by proceeding to entertain the revision and further by granting an interim order has brought about an impediment in the proceedings in relation to the application filed by the respondent No. 3. It is also in the interest of the respondent No. 3 that her application should be decided on merit after contest by the parties. In such a situation, the revision ought not to have been entertained. Accordingly, the order dated 1.7.2011 is set aside. The revision stands dismissed. The matter stands remitted to the respondent No. 2 for deciding the matter in accordance with law on the application of the respondent No. 3. The parties shall appear before the respondent No. 2 within 15 days and the matter shall be disposed of within 6 weeks thereafter. 8. It is made clear that the observations made herein above should not be construed as any finding of this Court and it shall be open to the Sub-Divisional Magistrate to decide the case on merits. 9. The parties shall appear before the respondent No. 2 within 15 days and the matter shall be disposed of within 6 weeks thereafter. 8. It is made clear that the observations made herein above should not be construed as any finding of this Court and it shall be open to the Sub-Divisional Magistrate to decide the case on merits. 9. With the aforesaid observations, the writ petition stands disposed of. —————