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2014 DIGILAW 134 (UTT)

Savita v. State

2014-03-27

ALOK SINGH

body2014
Judgment Alok Singh, J. Present writ petition is filed seeking writ of mandamus directing the respondent Nos. 1 and 2 not to auction the property, being khasra No. 92, in village Ahmedpur Khedi, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar, pursuant to the citation dated 28.02.1994, annexure No.6 to the writ petition. 2. Brief facts of the present case, inter alia, are that land in question, khasra No. 92, Village Ahmedpur Khedi, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar was owned and cultivated by Chauhal Singh. Chauhal Singh had only one son, namely, Ilam Singh @ Ilam Chand. Undisputedly, petitioner is daughter of Ilam Singh @ Ilam Chand. After the death of Chauhal Singh, respondent No.4, Munni Devi was successful in getting her name mutated in the revenue record on the basis of forged will allegedly executed by Chauhal Singh. Ilam Singh @ Ilam Chand expired during the life time of Chauhal Singh, therefore, petitioner was the only legal heir of Chauhal Singh, being her natural grand daughter. Having come to know about the ex-parte order in favour of Munni Devi respondent No.4 herein, petitioner herein challenged the order dated 08.02.2001 by way of filing appeal, being Appeal No. 1162 before the Settlement Officer of Consolidation. Appeal so filed by the petitioner was allowed by the Consolidation Officer vide judgment dated 27.12.2001 and order passed by the Consolidation Officer dated 08.02.2001 mutating the name of respondent No.4 herein on the basis of will of Chauhal Singh was set aside and case was remitted back to the Consolidation Officer to decide the same afresh at its own merit in accordance with law. Thereafter, Consolidation Officer, Rookee, vide his order dated 25.03.2003, has held that will allegedly executed by Chauhal Singh in favour of respondent No.4 could not be proved, therefore, Munni Devi could not be held to have inherited the property of Chauhal Singh and directed mutation in the name of petitioner herein being sole legal heirs of Chauhal Singh. Meanwhile, during the pendency of the legal proceedings before the Consolidation Authority, pertaining to the title over the land, in question, Munni Devi respondent No. 4 was successful in getting loan from the respondent No.3, State Bank of India, Branch Bhagwanpur. Meanwhile, during the pendency of the legal proceedings before the Consolidation Authority, pertaining to the title over the land, in question, Munni Devi respondent No. 4 was successful in getting loan from the respondent No.3, State Bank of India, Branch Bhagwanpur. Munni Devi, respondent No.4 herein has filed one affidavit before the Bank at the time of seeking loan to the effect that property in question was free from all litigations and she was the only owner of the property in question. She deliberately suppressed the fact that question of title was pending disposal between the respondent No.4 and petitioner. Respondent No.3, without making thorough inquiry about the title of Munni Devi sanctioned the loan in favour of respondent No.4. When respondent No. 4 failed to repay the loan borrowed by her, Bank proceeded to recover the agriculture loan amount by issuing recovery certificate to the Tehsildar as arrears of land revenue. Having received the recovery request from the Bank, Tehsil authority proceeded to auction the property in question to recover the loan amount outstanding against the respondent No.4. 3. Having come to know about the recovery proceedings, petitioner has filed the present writ petition. 4. I have heard Mr. Tapan Singh, learned counsel for the petitioner, Mr. R.C. Arya, learned Standing Counsel for respondent Nos. 1 and 2 and Mr. D.S. Patni, learned Counsel for the respondent No.3. However, none is present for respondent Nos. 4, 5 and 6. 5. This is settled position of law that judgment passed by the Consolidation Authority declaring the title after the closing of consolidation proceedings under Section 52 of the U.P. Consolidation of Holdings Act attains finality. Therefore, order passed by the Consolidation Officer in favour of the petitioner declaring her to be the sole bhumidhar in possession of the property, in question, being legal heir of Chauhal Singh has attained finality. 6. Learned counsel, appearing for the respondent Nos. 1 to 3, vehemently argued that since property in question was mortgaged by respondent No.4 in favour of the bank, therefore, same can be sold for recovery of the agricultural loan extended in favour of the respondent No. 4. 7. I do not agree with the learned counsel, appearing for respondent Nos. 6. Learned counsel, appearing for the respondent Nos. 1 to 3, vehemently argued that since property in question was mortgaged by respondent No.4 in favour of the bank, therefore, same can be sold for recovery of the agricultural loan extended in favour of the respondent No. 4. 7. I do not agree with the learned counsel, appearing for respondent Nos. 1, 2 and 3, for the simple reason that undisputedly petitioner has already been declared bhumidhar in possession of the property in question by the competent Consolidation Authority and judgment of the Consolidation Authority has attained finality which cannot be challenged in any subsequent proceedings in view of Section 49 of the U.P. Consolidation of Holdings Act. 8. It seems that Munni Devi has played fraud with the Bank while taking loan saying herself bhumidhar of the property in question by suppressing material fact that question of title was pending disposal before the Consolidation Officer. It seems that officers of the Bank without verifying the correctness of the affidavit submitted by Munni Devi proceeded to grant and release loan in favour of Munni Devi. Had officers of the Bank been vigilant, they would have come to know that question of title was pending before the Consolidation Authority. 9. Submission of Mr. D.S. Patni, learned counsel for respondent No. 3 that bank believing the mutation in favour of respondent No.4, extended the loan, does not hold water in view of the fact that question of title was pending disposal before the competent Consolidation Court. Respondent No.4 cannot be held to be owner/bhumidhar of property, in question in view of fact that ultimately petitioner was held to be owner/bhumidhar of the property in question by the Consolidation Court. Since petitioner has successfully proved her title, therefore, respondent Nos. 1, 2 and 3 cannot be permitted to go ahead by auctioning the property belonging to the petitioner for recovery of loan outstanding against the respondent No.4. 10. Therefore, writ petition is allowed. Respondent No. 1, 2 and 3 are hereby restrained not to proceed further to auction the property in question which belongs to the petitioner for the recovery of the loan outstanding against the respondent No.4. Respondent Nos. 1, 2 and 3 shall be at liberty to proceed against the respondent No.4 and her guarantors for recovery of loan amount in accordance with law. 11. No order as to costs.