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2014 DIGILAW 1631 (ALL)

ALOK KUMAR v. BOARD OF REVENUE

2014-05-20

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Hon’ble Ram Surat Ram (Maurya), J.—Heard Sri P.C. Singh for the petitioners. 2. The writ petition has been filed against the order of Board of Revenue dated 31.3.2014 allowing the revision of the contesting respondents and setting aside the order of Additional Commissioner dated 9.4.2013 and reinstating the order of Tehsildar dated 24.8.2012. 3. The dispute between the parties is in respect of inheritance of the property of Ram Mohan. The petitioners are grand sons of Ram Mohan while Shiv Mohan, respondent -3 is son of Ram Mohan. It is alleged that Ram Mohan executed an unregistered Will dated 18.1.2003 and thereafter he died on 30.1.2003 and on the basis of aforesaid Will they have become heirs of Ram Mohan and their names were liable to be mutated. The petitioners filed an application registered as Case No. 179/53/012 under Section 39 of U.P. Land Revenue Act for mutation of their names on the basis of the Will dated 18.1.2003. The Naib Tehsildar by order dated 21.2.2012 allowed the application of the petitioners and directed for recording their names over the land in dispute. Shiv Mohan thereafter filed an application on 15.6.2012 for recall of the order dated 21.2.2012. In the application it has been stated that after death of Ram Mohan his name was recorded over the land in dispute on the basis of PA-11 and ignoring the order of mutation and without giving any notice and without issuing proclamation according to the procedure prescribed under Revenue Record Manual the impugned order has been passed ex parte and the application was allowed by Tehsildar by order dated 24.8.2012 finding that the order dated 21.2.2012 was an ex parte order. The petitioners filed a revision against the aforesaid order. The revision was heard by Additional Commissioner who by order dated 9.4.2013 held that in the order dated 24.8.2012 it has been stated that the earlier order dated 21.2.2012 was an ex parte order but it has not been found that how this order was ex parte. Accordingly, the revision was allowed and order dated 24.8.2012 was set aside and the earlier order dated 21.2.2012 was reinstated. The order was challenged by the contesting respondents in the Revision (registered as Revision No. 1579 (LR) of 2012-13) before the Board of Revenue which has been allowed by the impugned order dated 31.3.2014. Hence this writ petition has been filed. 4. The order was challenged by the contesting respondents in the Revision (registered as Revision No. 1579 (LR) of 2012-13) before the Board of Revenue which has been allowed by the impugned order dated 31.3.2014. Hence this writ petition has been filed. 4. The counsel for the petitioners submits that the order of Naib Tehsildar was passed on 21.2.2012 after following the procedure and issuing the notices to the contesting respondents. The respondent -3 is the father of the petitioners and he is residing in the same house as such it is not possible that he could not have any notice of the proceeding before the Naib Tehsildar. In any case the Civil Suit has been filed for cancellation of the sale-deeds dated 28.7.2006 and 29.7.2006 executed by respondent -3 in which also notices have been served upon respondent -3 and the suit was decreed by judgment dated 18.5.2010 as such respondent -3 had challenged the proceeding before the Naib Tehsildar. In any case the Naib Tehsildar has found that proclamation has been issued in accordance with law as such the order passed by Naib Tehsildar was not an ex parte order. He further submits that the order was passed on 21.2.2012 while the recall application was filed on 15.6.2012. Although the limitation for filing the recall application is 15 days under Section 201 of the Act. In such circumstances, the respondents was required to file an application for condonation of delay and without condoning the delay the Tehsildar has no jurisdiction to allow the recall application. The order of Tehsildar dated 24.8.2012 was ex parte also inasmuch as notices of the application were not issued to the petitioners, it is only after long time of the application the notices had been directed to be issued. In such circumstances, the Additional Commissioner has rightly allowed the revision of the petitioners however the Board of Revenue has illegally set aside the order of Additional Commissioner. 5. I have considered the arguments of the counsel for the petitioner and examined the record. 6. So far as the ground raised that the restoration application was time barred and there being no application for condonation of delay, the recall application could not have been allowed and ought to have been rejected. 5. I have considered the arguments of the counsel for the petitioner and examined the record. 6. So far as the ground raised that the restoration application was time barred and there being no application for condonation of delay, the recall application could not have been allowed and ought to have been rejected. In this respect Section 201 of U.P. Land Revenue Act provides that ‘re-hearing on proof of good cause for non-appearance’; the application for re-hearing is required to be filed within 15 days from the date of the order and if the defendant, after 15 days of such order, has been communicated to him. Therefore the 15 days limitation will run from the date when the order is communicated to the defendant. Admittedly, the order of Naib Tehsildar was not communicated to the defendant as such the application filed by the contesting respondents cannot be said that it was beyond 15 days from the date of communication of the order. In any case under this Section itself the power for admitting the application has been given to the Court concerned. If it satisfied to the Court for not coming to the Court within 15 days no separate application under Section 5 of the Limitation Act is required to be filed. In such circumstances, the Tehsildar was satisfied that the order was ex parte and it was not communicated to respondent -3 and he was having sufficient cause for not coming to the Court after 15 days therefore he allowed the application filed by respondent -3 and Additional Commissioner has no jurisdiction to interfere in the discretion exercised by Tehsildar. A perusal of the order of Additional Commissioner shows that the Additional Commissioner has proceeded that the Tehsildar has presumed that the order was ex parte but basis for such finding was not given. A perusal of the affidavit filed by respondent-3 shows that he has clearly mentioned that proclamation has not been served according to the provisions of Revenue Record Manual as such no proclamation has been issued. He further denied the service of personal summon to him. In such circumstances, the allegation made in the affidavit the order was ex parte and details of its being ex parte has been mentioned in the affidavit but the Additional Commissioner has illegally ignored the affidavit of respondent -3. He further denied the service of personal summon to him. In such circumstances, the allegation made in the affidavit the order was ex parte and details of its being ex parte has been mentioned in the affidavit but the Additional Commissioner has illegally ignored the affidavit of respondent -3. So far as the question of getting knowledge of the proceedings of the Civil Suit No. 82 of 2006, is concerned. Suffice to say that Civil Suit has already been decided ex parte on 18.5.2006 while this proceeding was concluded by the order dated 22.2.2012, therefore the order dated 22.2.2012 was not in existence at the time of passing of Civil Court decree. In any case this decree of Civil Court was also ex parte decree. In such circumstances, Board of Revenue has not committed any illegality in allowing the revision and restoring the case. The petitioners have remedy to contest the matter on merit before the Naib Tehsildar. 6. No interference is required by this Court. The writ petition is dismissed.