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2014 DIGILAW 1644 (ALL)

Rama Nand v. Abunasar

2014-05-20

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya),J. Counter affidavit and rejoinder affidavit filed today are taken on record. 2. Heard Sri Tarun Varma for the petitioner and Sri D.P. Singh, Senior Advocate, assisted by Sri Ravindra Kumar Yadav for the contesting respondents. 3. The writ petition has been filed against the order of Commissioner dated 26.5.2010 allowing the revision of the respondents and deleting the names of the petitioners from the land in dispute and recording the name of the respondents as bhumidhar of the land in dispute and Board of Revenue dated 12.2.2014 dismissing the revision of the petitioners from the aforesaid order. 4. The contesting respondents filed an application (registered as Case No.88 of 2009) under Section 33/39 of U.P. Land Revenue Act, 1901(hereinafter referred to as "the Act"), for deleting the names of the petitioners from the land in dispute which is situated in two villages , namely, Hansupur and Turkmanpur, tappa Kasba, Pargana Haveli, tehsil Sadar, district Gorakhpur. The allegation of the respondents in the application was that the land in dispute was the land of which they were Zamindars, which was recorded as such in the khewat in their names. The Lekhpal without any authority has recorded the names of the petitioners over it in column 8 of the khatauni and subsequently without any order of any competent authority the names of the petitioners were recorded as bhumidhar of the land in dispute by making entries in favour of the petitioners and the forged entries be deleted. On this application Tehsildar conducted an enquiry and submitted a report. The Tehsildar in his report found that although the land in dispute was the land of khewat of the respondents but under the permission granted by the respondents the petitioners have been cultivating the land in dispute and their names were recorded in column 8 of the khatauni. However, the Tehsildar gave his opinion that the names of the petitioners were recorded in column 8 of the khatauni without an order of the competent court and accordingly it was mentioned in his report that the entry in favour of the petitioners was a forged entry and was liable to be deleted. Thereafter the matter was heard by the Sub Divisional Officer. Thereafter the matter was heard by the Sub Divisional Officer. The Sub Divisional Officer by order dated 27.6.2009 held that the names of the petitioners were continuing in the khatauni since 1333 fasli in Ziman 8 of the khatauni as such a long standing entry cannot been deleted in the proceeding under Section 33/39 of the Act and on this finding the application was dismissed by order dated 27.6.2009. The respondents filed a revision(registered as Revision No.397/273/G of 2009) from the aforesaid order. The revision was heard by the Commissioner who by the order dated 26.5.2010 found that the names of the petitioners were recorded in the khatauni without any order of the competent authority as such the entry of the names of the petitioners was forged entry and forged entry may be a continuous entry for a long time but on its basis no right can be accrued to the petitioners. On this finding the revision was allowed. The names of the petitioners were directed to be deleted from the land in dispute and the names of the contesting respondents were directed to be recorded as bhumidhar of the land in dispute. The petitioners filed a revision (registered as Revision No.2921/LR/2009-10) from the aforesaid order, which has been dismissed by the Board of Revenue by order dated 12.2.2014. Hence this writ petition has been filed. 5. The counsel for the petitioners submits that the names of the petitioners were recorded in 1333 fasli in column 8 of the khatauni. Under the provisions of U.P. Land Records Manual (as it was then applicable) the Lekhpal was competent to record the names of the tenant over it as such the entry made by the Lekhpal in khatauni of the names of the petitioners cannot be termed as forged. The Commissioner as well as the Board of Revenue has not considered the provisions of U.P. Land Records Manual as it was applicable prior to abolition of Zamindari and it has been wrongly held that the entry of the names of the petitioners was not made by any competent authority. He submits that after 1333 fasli another settlement took place and the entry was continued there is no presumption of correction as such no legal presumption for settlement under Section 57 of the U.P. Land Revenue Act, 1901is bound to be raised by the authorities. He submits that after 1333 fasli another settlement took place and the entry was continued there is no presumption of correction as such no legal presumption for settlement under Section 57 of the U.P. Land Revenue Act, 1901is bound to be raised by the authorities. They cannot ignore the entry saying that it was an illegal entry. In any case the settlement entry cannot be corrected, exercising of powers under Section 33/39 of the Act as held by this Court in Sita Ram vs. State of U.P. and others, 2014(1) ADJ 213 . 6. I have considered the arguments of the counsel for the parties and examined the record. 7. The Sub Divisional Officer as well as the Additional Commissioner both proceeded on the basis that Zamindari of the area has not been abolished. Therefore, the provision of U.P. Land Records Manual as it was applicable in the area where Zamindari has not been abolished are relevant. Under the provisions of U.P. Land Records Manual, Chapter 8 is applicable for non ZA area. Lekhpal is competent to make entry in the khatauni. The entry made in 1333 fasli is settlement khatauni and thereafter there is another settlement in the year 1359 fasli. Therefore, two settlement have passed the entry remained as such. The settlement entry cannot be allowed to be corrected under Section 33/39 of the Act. The remedy of the respondents was to file a regular suit under the provisions of U.P. Tenancy Act if the Zamindari has not been abolished. 8. In the result the writ petition succeeds and is allowed. The order of Commissioner dated 26.5.2010 and Board of Revenue dated 12.2.2014 are set aside. The order of the Sub Divisional Officer dated 27.6.2000 is confirmed.