Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 1154 (ALL)

Omkar Singh v. State of U. P.

2014-04-09

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Vikrant Rana for the petitioners. The writ petition has been filed against the order of the Additional Commissioner dated 15.10.2013 by which the revision has been allowed and the judgment and decree of the Trial Court dated 6.12.2012 has been set aside and the matter has been remanded to the Trial Court for decision on merit and the order of the Board of Revenue dated 3.1.2014 dismissing the revision of the petitioners. 2. Smt. Suresh Devi filed a suit under section 229-B of U.P. Act No. 1 of 1951 claiming herself as an heir of Smt. Mahendri Devi and declaring herself to be tenure-holder as bhumidhari right was inherited by her after the death of Mahendri Devi. In this suit the issues were framed. However, the Trial Court proceeded to decide the preliminary issue relating to maintainability of the suit. The Trial Court by judgment dated 6.12.2012 held that as the land in dispute was given on patta to Smt. Mahendri Devi under the provisions of the Government Grants Act, 1895 as such right over it shall be derived only on the basis of term of grant and not on basis of inheritance. On this finding the suit was dismissed. Smt. Suresh Devi filed a revision against the aforesaid order. Omkar Singh, petitioner also filed an appeal from the aforesaid order. The appeal was got dismissed as withdrawn. The revision was heard by the Additional Commissioner, who by judgment dated 15.10.2013 allowed the revision and held that the suit was filed for declaration of right in respect of the land, therefore, the suit was maintainable. The Trial Court instead of deciding the suit after framing issues has illegally dismissed the suit only on the ground that it was not maintainable as such he set aside the judgment and decree of the Trial Court and remanded the matter to the Trial Court for framing issues and deciding it after giving opportunity of evidence to the parties. The petitioners filed a revision before the Board of Revenue against the aforesaid order, which has been dismissed by the Board of Revenue by judgment and order dated 3.1.2014. Hence, this writ petition has been filed. 3. The petitioners filed a revision before the Board of Revenue against the aforesaid order, which has been dismissed by the Board of Revenue by judgment and order dated 3.1.2014. Hence, this writ petition has been filed. 3. The Counsel for the petitioners submits that the observation of the Commissioner that the issues have not been framed is incorrect as the issues have been framed and thereafter the suit was decided. He further argued that the matter relating to inheritance/succession can not be decided by the Revenue Court, accordingly, the Trial Court has rightly dismissed the suit as the suit was cognizable by the Civil Court. He further submits that the proceeding under section 167 of U.P. Act No. 1 of 1951 was going on, therefore, the suit was not maintainable. 4. I have considered the arguments of the Counsel for the petitioners and examined the record. 5. It may be mentioned here that the petitioners themselves claimed that the land in dispute was allotted to Smt. Mahendri Devi. Therefore, if the case of the petitioners is accepted then the land in dispute was bhumidhari of Mahendri Devi on the date of her death. Then certainly the suit was maintainable and the Trial Court has illegally dismissed the proceeding on the presumption that the matter relating to inheritance/succession cannot be decided by the Revenue Court. The suit specifically falls within the jurisdiction of the Revenue Court as such right over the land in dispute by inheritance/succession has been claimed in the suit as such dismissal of the suit on the ground of maintainability was not correct. It may be further mentioned that the Trial Court has not examined the patta. Although the land in dispute was recorded in Ziman 4(ka) of khatauni even then it has been treated as land of Government Grant which is recorded in Ziman-7 as mentioned in the Land Records Manual, therefore, the judgment and decree of the Trial Court proceeded on illegal presumption and it has been rightly set aside by the Commissioner. 6. So far as the arguments of the Counsel for the petitioners that proceeding under section 167 of U.P. Act No. 1 of 1951 has been initiated as such the regular suit under section 229-B of the Act is not maintainable, is concerned, this argument is wholly misconceived. 6. So far as the arguments of the Counsel for the petitioners that proceeding under section 167 of U.P. Act No. 1 of 1951 has been initiated as such the regular suit under section 229-B of the Act is not maintainable, is concerned, this argument is wholly misconceived. The petitioners and respondent-5 are claiming themselves to be successor and can prove their case in this suit. No proceeding under section 167 of U.P. Act No. 1 of 1951 can be taken during pendency of this suit. The Commissioner has merely remanded the matter and the parties will have full opportunity to raised their grievances before the Trial Court no interference is required by this Court. The writ petition has no merit and it is dismissed.