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2014 DIGILAW 1328 (ALL)

Umakant Dev @ Lallu v. State of U. P.

2014-04-24

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya),J. Heard Sri Rakesh Chandra Tiwari for the petitioners. 2. This writ petition has been filed against the order of Revenue Court dated 18.5.2013, restoring the mutation application filed by the contesting respondent and the order dated 28.12.2013 dismissing the revision of the petitioners against the aforesaid order. 3. It is alleged that on the basis of a sale deed dated 23.3.1993, allegedly executed by Smt. Murahi Devi, the contesting respondent filed an application u/s 34 of U.P. Land Revenue Act for mutation of their names. In the meantime, on coming to know about the sale deed, Smt. Murahi Devi filed a civil suit for cancellation of the sale deed. The suit was decreed ex parte by judgment dated 19.5.2007. As the sale deed was cancelled, as such, the mutation application was dismissed in default by order dated 15.10.2007. Thereafter, the contesting respondents filed an application for setting aside the ex parte decree before the Civil Court and the application was allowed by order of Civil Court dated 25.5.2011 and the ex parte decree dated 19.5.2007 cancelling the sale deed was set aside and the suit was restored to it's original number. The contesting respondent also filed an application for recall of the order dated 15.10.2007 dismissing the mutation application in default, along with a delay condonation application. The Tahsildar by the impugned order dated 18.5.2013 found that as by the ex parte decree dated 19.5.2007, the sale deed dated 23.3.1993 was cancelled, as such, the mutation application was got dismissed in default by order dated 15.10.2007. However, as the ex parte decree dated 19.5.2007 has been set aside, as such, the sale deed has revived, therefore, the cause of action for mutation on the basis of the sale deed has also revived in favour of the contesting respondent. On these findings, delay in filing the recall application was condoned and the recall application was allowed and the order dated 15.10.2007 was recalled and the mutation application was restored to it's original number. The petitioner filed a revision against the aforesaid order, which has been dismissed by the Collector by the order dated 28.12.2013. Hence, this writ petition has been filed. 4. The counsel for the petitioner submits that by committing fraud on Smt. Murahi Devi, who was an old and illiterate lady, the sale deed dated 23.3.1993 was obtained. The petitioner filed a revision against the aforesaid order, which has been dismissed by the Collector by the order dated 28.12.2013. Hence, this writ petition has been filed. 4. The counsel for the petitioner submits that by committing fraud on Smt. Murahi Devi, who was an old and illiterate lady, the sale deed dated 23.3.1993 was obtained. However, the tranferee could never get possession over the land in dispute and Smt. Murahi Devi and after her death, her heirs remained throughout in possession over the land in dispute. In case the interim protection is not granted, then as soon as the name of the contesting respondent is mutated over the land in dispute, he will sell the land in dispute and create hindrance in the right of the petitioners. In such circumstances, the order passed by the Tahsildar as well as the Collector, are liable to be set aside. 5. I have considered the arguments of counsel for the petitioners and examined the record. 6. By the impugned order, the mutation application was restored on the ground that earlier, the sale deed on the basis of which mutation application was filed, was set aside by the decree of the Civil Court dated 19.5.2007, but the ex parte decree dated 19.5.2007 was set aside on 25.5.2011, as such cause of action for mutation on the basis of the sale deed dated 23.3.1993 had revived, therefore, the mutation application was restored to it's original number, condoning the delay. The order restoring the mutation application does not suffer from any illegality. 7. So far as the allegation of counsel for the petitioners that the sale deed dated 23.3.1993 was obtained by committing fraud on Smt. Murahi Devi and the contesting respondent did not get possession over the land in dispute on it's basis is concerned, these controversies are still to be decided by the Mutation Court or the Civil Court. It is not proper for this Court to record any finding in this respect. 8. So far as the prayer for granting interim injunction against the contesting respondent is concerned, since the proceeding u/s 34 of U.P. Land Revenue Act is still pending and there is no provision for grant of interim injunction. It is not proper for this Court to record any finding in this respect. 8. So far as the prayer for granting interim injunction against the contesting respondent is concerned, since the proceeding u/s 34 of U.P. Land Revenue Act is still pending and there is no provision for grant of interim injunction. In case the petitioners have any apprehension, they are free to move an appropriate application in the pending civil suit for grant of interim injunction, which shall be decided in accordance with law. 9. The writ petition has no merit and is dismissed.