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Allahabad High Court · body

2014 DIGILAW 1587 (ALL)

Dushasan v. State of U. P.

2014-05-14

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J.: - Heard Sri D.K. Mishra for the petitioner. 2. Sri Anupam Kulshreshtha states that the case is related to district Agra, however, by endorsing district as Allahabad in the writ petition, the petitioner has successfully bypassed the caveat filed by him. As the respondents have filed caveat through Sri Anupam Kulshreshtha, heard Sri Anupam Kulshreshtha for the caveator. 3. The writ petition has been filed against the order dated 17.6.2005 passed by the Sub Divisional Officer rejecting the restoration application of the petitioner and the order dated 12.2.2013 passed by the Additional Commissioner dismissing the revisions filed by the petitioner and the other parties against the aforesaid order and the order dated 24.3.2014 passed by the Board of Revenue dismissing the second revision of the petitioner against the aforesaid order. 4. A suit for partition under Section 176 of U. P. Act No.1 of 1951 was filed by Jagdish. A preliminary decree in the suit was passed and thereafter the court had directed the Lekhpal to prepare the final decree. The Lekhpal prepared kurras and submitted in the court. No one filed any objection to the kurras prepared by the Lekhpal as such final decree was passed on its basis on 20.11.2003. Thereafter Chhotelal filed an application for setting aside the final decree. In the application the petitioner had stated that no notice or summons was sent to the petitioner as such no question arose of signing kurras prepared by the Lekhpal, by the petitioner, as such order dated 20.11.2003 was liable to be set aside and the suit was liable to be restored to its original number. After filing the aforesaid application, the petitioner filed another application on 24.3.2004 in which he had stated that some of the defendants were dead, even then it was alleged that they had signed kurras prepared by the Lekhpal and gave consent for preparation of kurras to the Lekhpal as such Lekhpal had prepared kurras in collusion with some defendants without any information to the parties. The application for setting aside order dated 20.11.20003 was heard by the Sub Divisional Officer, who by order dated 17.6.2005 held that the applicant Chotelal had already put appearance before the court through an advocate as such no fresh summons was required to be issued to him. The application for setting aside order dated 20.11.20003 was heard by the Sub Divisional Officer, who by order dated 17.6.2005 held that the applicant Chotelal had already put appearance before the court through an advocate as such no fresh summons was required to be issued to him. Although there were 28 cosharers but apart from Chhotelal the final decree was not challenged by any of the cosharers, even heirs of alleged dead defendants had not challenged the final decree passed in the suit. On this allegation the application of Chhotelal was dismissed. Thereafter the petitioner, who is son of Chhotelal, filed two revisions and one revision was filed by Bhagwan Singh and others. All the revisions were consolidated and decided by the Additional Commissioner, who by order dated 12.2.2013 found that the Lekhpal had prepared kurras on the basis of consent of the parties and various cosharers filed their affidavit also in this respect. No objection was filed against kurras and after passing of the final decree, only an application was filed by Chhotelal alone for setting aside the final decree as such it was rightly rejected by the Sub Divisional Officer. On this finding the revisions were dismissed. Against the aforesaid order the petitioner filed a revision before the Board of Revenue. The revision has been heard by the Board of Revenue and the Board of Revenue by order dated 24.3.2014 has found that notice had been issued and was served personally on Chhote son of Prabhu. Chhote has also filed vakalatnama before the court below before passing preliminary decree dated 30.10.2002. Thereafter the Lekhpal was directed to prepare kurras and he submitted kurras on 7.11.2003. As Chhote was appearing in the court as such fresh summons was not required to be issued to him. As no objection was filed by any of the parties against kurras prepared by the Lekhpal as such it was rightly accepted and final decree was passed on its basis on 20.11.2003. There is no illegality committed by the trial court while passing the final decree dated 20.11.2003. Accordingly, the application for setting aside the final decree has been rightly rejected and on this finding the revision was dismissed. Hence this writ petition has been filed 5. There is no illegality committed by the trial court while passing the final decree dated 20.11.2003. Accordingly, the application for setting aside the final decree has been rightly rejected and on this finding the revision was dismissed. Hence this writ petition has been filed 5. By order dated 25.4.2014 the counsel for the petitioner was directed to file restoration application filed by Chhote before the court below along with order-sheet of the trial court. In pursuance of the aforesaid order a supplementary affidavit has been filed in which only restoration application has been filed and order-sheet has not been filed. A perusal of the restoration application shows that Chhote had not specifically denied his signature on the kurras prepared by the Lekhpal rather he took shelter that summons were not served upon him, therefore, no question of signing kurras by him was arising. This is not clear denial of the signature on the kurras. Apart from it, the courts below have found that Chhote was appearing before the court at the time of passing preliminary decree through an advocate. Chhote in the restoration application had not denied the fact that he had not engaged any advocate in the suit. It is needless to say that the petitioner had not adduced any evidence to prove that his signature on the kurras was forged. 6. The petitioner has taken shelter that some of the defendants were dead, therefore, final decree could not have been passed against the dead persons although heirs of none of the dead parties had challenged the final decree as such only on this ground final decree was not liable to be set aside. 7. The counsel for the petitioner submits that since Chhote had denied the sanctity as well as genuineness of kurras prepared by the Lekhapal, therefore, it was the bounden duty of the trial court to make an enquiry and to satisfy about the genuineness of the papers produced by the Lekhpal. 8. 7. The counsel for the petitioner submits that since Chhote had denied the sanctity as well as genuineness of kurras prepared by the Lekhapal, therefore, it was the bounden duty of the trial court to make an enquiry and to satisfy about the genuineness of the papers produced by the Lekhpal. 8. On putting a query to the counsel for the petitioner to point out any law by which burden was shifted upon the court to examine the genuineness of a document merely on denial of a party, the counsel for the petitioner has pointed out Sections 195 and 340, Cr.P.C. Section 195 Cr.P.C. imposes restriction for taking cognisance in respect of contempt of lawful authority of public servant for offences against public justice and for offences relating to documents given in evidence except on the complaint made in writing by any court. Thus, there was no complaint by the court as such this section does not help the petitioner in any way. Section 340 Cr.P.C. lays down the procedure in cases mentioned under Section 195 Cr.P.C.When Section 195 Cr.P.C. itself is not applicable as such no procedure as mentioned under Section 340 Cr.P.C. is required to be followed. The argument in this respect is wholly misconceived. 9. All the three courts below have recorded a concurrent finding of fact that the petitioner was appearing before the court below and had not filed any objection against the preparation of kurras, which were rightly confirmed and final decree was passed on its basis. The final decree in the suit cannot be set aside, as the petitioner was appearing in the suit. 10. There is no illegality in the impugned orders. The writ petition is dismissed.