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2013 DIGILAW 1843 (ALL)

Kripal Singhan Another v. Kusumaand Another

2013-07-12

A.P.SAHI

body2013
Amreshwar Pratap Sahi, J.— Heard learned counsel for the petitioners. The petitioners claim that they had purchased the property from Udai Veer Singh and had also transacted the matter by making certain payments. Sri Udai Veer Singh died leaving behind his sons whose names were recorded as it was only an agreement to sell which had been executed between the petitioner and Udai Veer Singh. It appears that the sons did not honour the agreement and they executed another sale-deed in favour of the respondent No.1 in respect of the same disputed holding. The petitioner has claimed that he had a sale-deed in his favour that was executed by the power of attorney holder of two of the sons on 12.4.1999. Thus, the petitioner's sale-deed through the power of attorney holder is stated to have been executed prior to the sale-deed set up by the Respondent No.1. On the strength of the said sale-deed, the petitioners succeeded in getting a mutation order in their favour. A recall application was filed by the vendors of the respondent and the order of mutation dated 3.10.2000 in favour of the petitioner was recalled and the said application became pending. The respondent No.1, after having obtained the sale-deed, filed a fresh mutation application in which an order was passed on 7.1.2002. The petitioner filed a recall application and objection to the said order and the same was rejected on 10.6.2002. The petitioner filed an appeal against the same which was dismissed by the Sub-Divisional Officer on 18.9.2004. Against which, the petitioner filed a revision before the learned Addl. Commissioner, who allowed it and set aside the orders and remitted the matter to Tehsildar for decision afresh. Aggrieved by the said order in revision, the respondent No.1 approached the Board of Revenue and the Board of Revenue set aside the order of the learned Addl. Commissioner upholding the order passed by the authority below. Hence this petition. Sri Umesh Vatts contends that the mutation application filed b the petitioners remained pending whereas in the second mutation application filed by the respondent No.1 was decided. Thus, the Addl. Commissioner was right in remitting the matter back so that both the matters be heard simultaneously. Sri Umesh Vatts further submits that the order passed by the Addl. Sri Umesh Vatts contends that the mutation application filed b the petitioners remained pending whereas in the second mutation application filed by the respondent No.1 was decided. Thus, the Addl. Commissioner was right in remitting the matter back so that both the matters be heard simultaneously. Sri Umesh Vatts further submits that the order passed by the Addl. Commissioner was justified keeping in view the nature of the dispute raised and the documents which had been relied upon by the parties. He, therefore, submits that the Board of Revenue erroneously interfered with the order of the Addl. Commissioner. Sri Satendra Kumar Singh, on the other hand, contends that the execution of the sale-deed in favour of the petitioner was by a person whose power of attorney had already been revoked. In such a situation, the only sale-deed which was there was that of the answering respondent No.1. He, therefore, contends that the authority below has not committed any error in proceeding to reject the application filed by the petitioner and merely because the mutation application remained pending, the same does not in any way come to the advantage of the petitioner to re-agitate the entire matter again. He further submits that the Appeal filed by the petitioner was time barred yet the learned Addl. Commissioner interfered with the order of the Sub-Divisional Officer which has rightly been set aside by the Board of Revenue. Having heard learned counsel for the parties, it appears that the main ground of challenge in the present writ petition is that the power of attorney was not cancelled validly and that there was no evidence to indicate a valid cancellation. It is also apparent from the pleadings in the writ petition itself particularly paragraph No.21 that the petitioners have already filed an Original Suit No.174 of 2001 for specific performance and also for cancellation of the sale-deed executed in favour of the respondent No.1. In reply thereto, the counter-affidavit in paragraph Nos. 17 and 18 indicates that the Suit has been dismissed in default even prior to the filing of the writ petition. Whatever be the status of the Suit, the remedy has rightly been availed by the petitioner of filing a Suit in respect of the cancellation of the sale-deed about which pleadings have been raised in this Court in the present writ petition. Whatever be the status of the Suit, the remedy has rightly been availed by the petitioner of filing a Suit in respect of the cancellation of the sale-deed about which pleadings have been raised in this Court in the present writ petition. The petitioners having availed of the appropriate remedy, the present proceedings arising out of mutation under Section 34 of the U.P. Land Revenue Act, 1901, would be subject to the outcome of the result of the Suit. In such circumstances, I am not inclined to entertain this writ petition and it is hereby dismissed with the aforesaid observations. _____________