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2014 DIGILAW 1275 (ALL)

Vinod Kumar v. State of U. P.

2014-04-21

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Surendra Pal Singh for the petitioners and Sri Ashish Kumar Srivastava for the contesting respondents. This writ petition has been filed against the order of Board of Revenue U.P. dated 26.2.2014, allowing the Second Appeal and setting aside the judgment and decree of Appellate Court dated 29.11.2003 and restoring the decree of Trial Court dated 24.8.1998 in the proceeding under section 229-B of U.P. Act No. 1 of 1951. 2. The dispute between the parties is in respect of plot No. 3274 (area 0.80 acre) of village Karimganj, pargana and district Mainpuri. Smt. Rajan Shree (respondents) filed a suit (registered as Suit No. 107/1992-93) under section 229-B of U.P. Act No. 1 of 1951 for declaring her as bhumidhar with transferable of land in dispute. It has been stated by Smt. Rajan Shree that plots 2985, 3015, 3157, 3274 and 3467 were allotted to her on 13.7.1979 on the basis of resolution of Land Management Committee dated 2.6.1979. Her name was mutated in khatauni 1384-F to 1389-F. Lekhpal without order of competent authority deleted the name of respondents from plot No. 3274, on 16.8.1986 and recorded it in the name of Hazari Lal without any basis. The suit was contested by the petitioners on the ground that the land in dispute was allotted to Hazari Lal by Land Management Committee on 30.11.1977. As the land in dispute was already allotted to Hazari Lal in the year 1977, Land Management Committee has no authority to allot it to respondent-6 in 1979. As the patta in favour of Hazari Lal was prior in time as such Supervisor Kanoongo by order dated 16.8.1986 directed to mutate the name of Hazari Lal and delete the name of respondent-6. The name of Hazari Lal was mutated over the land in dispute on basis of the patta. In the meantime, Hazari Lal died and on the basis of the report under PA-11, names of the petitioners were mutated by order dated 16.8.1986. Since the land in dispute had already been allotted to the petitioners, as such, it was not vacant to be allotted to the respondent and the subsequent allotment in favour of respondent-6 was illegal. The patta of respondent-6 was not given effect to in the revenue records for a long time. Respondent-6 was not a landless lady as such allotment made to her was illegal. The patta of respondent-6 was not given effect to in the revenue records for a long time. Respondent-6 was not a landless lady as such allotment made to her was illegal. 3. It may be mentioned that Hazari Lal filed an application under section 198(4) of the Act for cancellation of the patta dated 13.7.1979, granted to Smt. Rajan Shree, which was allowed by order dated 20.8.2010. Smt. Rajan Shree filed a revision against the aforesaid order, in which the operation of the order dated 20.8.2010 has been stayed by Additional Commissioner by order dated 23.3.2011. The revision is still pending. On the pleadings of the parties, various issues were framed by the Trial Court. The Trial Court by judgment dated 24.8.1998 found that the file relating to the patta granted to Hazari Lal was not available in the office. The patta which has been produced by the defendant does not show that it has been validly issued. Since the patta was not approved and the papers produced by the defendants were suspicious documents, as such, the mutation of the name of Hazari Lal on 3.1.1982 or subsequent mutation of the names of the defendants on 16.8.1986 does not confer any right to them and the defendants do not appear to be bhumidhars of the land in dispute on the basis of patta dated 4.12.1977. He further found that as the patta in favour of the petitioner was not proved, however, from the evidence of Lekhpal, it is proved that the patta has been granted to the plaintiffs on 13.7.1979. The land in dispute was available to Land Management Committee for grant of patta. On these findings it was held that the patta produced by the petitioner was forged document. The other issues were also decided in favour of the plaintiffs. On these findings, the Trial Court decreed the suit and held that Smt. Rajan Shree as bhumidhar of the land in dispute. 4. The petitioner filed an appeal from the aforesaid order which was heard by Additional Commissioner, who by the order dated 29.11.2003, held that Lekhpal in his statement has stated that mutation of the names the allottees, who were granted patta on 13.7.1979, were on page Nos. 306 to 308, while the order of mutation of the name of Smt. Rajan Shree was at page No. 309. 306 to 308, while the order of mutation of the name of Smt. Rajan Shree was at page No. 309. It was also admitted that the supplementary khatauni has not been checked by any of the higher authorities, as such, the mutation of the name of Smt. Rajan Shree appeared to be suspicious. On these findings, the appeal was allowed and the matter was remanded to the Trial Court for fresh decision, after giving opportunity of evidence to the parties. Smt. Rajan Shree filed a second appeal (registered as Second Appeal No. 9 of 2003-04) from the aforesaid order, which has been allowed by Board of Revenue U.P. by order dated 26.2.2014. The Board of Revenue found that the patta set up by the petitioners was not found to be proved by the Trial Court and the finding of the Trial Court in this respect does not suffer from any illegality. In such circumstances, the Appellate Court has illegally allowed the appeal and remanded the matter for fresh trial before the Trial Court. On these findings, the Second Appeal was allowed and the order of the Appellate Court was set aside and the order of Trial Court has been reinstated. Hence, this writ petition has been filed. 5. The Counsel for the petitioner submits that Land Management Committee has validly executed the patta in favour of the petitioner and the patta in Z.A. Form 58 has been issued to the father of the petitioner, which is in accordance with Rule 176-A of the Rules. The file relating to allotment has been deliberately withheld. The Pradhan was not examined, as such, the finding in respect of the patta in favour of the petitioners was recorded without material evidence on record. The patta of the petitioner was prior in time. His name was also mutated in the revenue records on it's basis. Findings that the patta of the petitioners was not proved is incorrect. The Board of Revenue has not considered the arguments raised by the petitioner in this respect and has illegally allowed second appeal, although it was against the remand order and no substantial question of law arises. 6. I have considered the arguments of Counsel for the petitioners and examined the record. 7. The Board of Revenue has not considered the arguments raised by the petitioner in this respect and has illegally allowed second appeal, although it was against the remand order and no substantial question of law arises. 6. I have considered the arguments of Counsel for the petitioners and examined the record. 7. So far as the arguments raised by Counsel for the petitioners that second appeal was against the remand order and has been illegally allowed is concerned, a perusal of the judgment of Additional Commissioner shows that Additional Commissioner has allowed the appeal only for the reason that mutation of the name of Smt. Rajan Shree has been found to be on page No. 309, although, Lekhpal in his statement has stated that mutation of the pattas granted on 13.7.1979 were made from page Nos. 306 to 308. On this basis alone, the appeal was allowed and the matter was remanded to the Trial Court. The First Appellate Court has not gone into the controversy and has not considered the findings of the Trial Court that patta executed in favour of Hazari Lal was granted without approval of Sub-Divisional Officer, which was a condition precedent under section 195 U.P. Act No. 1 of 1951. Trial Court has found that patta in favour of the petitioners was not proved. The file relating to patta of the petitioner was not available. In the patta produced by the petitioner before the Court below, area of the land allotted to Hazari Lal was not mentioned. The mutation of the name does not confer any title in favour of any person. If the basis on which the name was mutated is itself illegal, then the mutation will not validate the patta. So far as the patta produced by Smt. Rajan Shree is concerned. Trial Court found that the patta was validly executed in her favour with prior approval of Sub-Divisional Officer. Her name was also mutated on its basis. Only for the reason that Lekhpal has stated that the names of allottees dated 13.7.1979 were mutated on pages 306 to 308 while name of Smt. Rajan Shree was mutated on page No. 309 does not make the patta as invalid. In such circumstances, without considering the finding of the Trial Court, the matter has been remanded by the First Appellate Court and the Board of Revenue has rightly interfered in the matter. 8. In such circumstances, without considering the finding of the Trial Court, the matter has been remanded by the First Appellate Court and the Board of Revenue has rightly interfered in the matter. 8. So far as the argument of Counsel for the petitioner that the Pradhan was the best evidence and was not examined, therefore, the material evidence has been withheld and in the absence of statement of Pradhan, the finding recorded against the petitioner was not correct, is concerned, findings has been recorded that patta produced by the petitioners was not approved by Sub-Divisional Officer. By the statement of Pradhan, the approval or disapproval cannot be proved. It is a matter of documentary evidence and can be proved only on the basis of documents. The file relating to allotment of the land is preserved in the Office of Tahsildar. No such the file is available in the office of Tahsildar, as such, even if the statement of Pradhan is recorded, no useful purpose could have been served in respect of approval or disapproval of the patta. The patta produced by the petitioners was contrary to the provisions of section 195 of the Act as such it does not confer any title to the petitioners. 9. Rule 176 of the Rules requires that while sending the papers relating to grant of patta, the Land Management Committee is required to send the list of persons so selected in Z.A. Form 57-B, a certificate of admission to land in Z.A. Form 58 and a counter part in Z.A. Form 58-A. When the Sub-Divisional Officer approves the resolution, he not only signs list Z.A. Form 57-B, but also signs Z.A. Form 58, making endorsement relating to approval also. Since the patta which has been produced by the petitioners does not contain any endorsement relating to approval of the patta. In the absence of original record and in the absence of approval of the patta of the petitioners, the finding recorded by the Trial Court cannot be interfered. Since the patta of the petitioners was not approved only on the basis of mutation, no right is conferred on the petitioners. As the petitioners have no right over the land in dispute, no interference is required by this Court. The writ petition has no merit and is dismissed.