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2014 DIGILAW 3798 (ALL)

Anil Kumar Srivastav (Dead) v. Addl. Commissioner

2014-12-19

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri R.C. Singh, for the petitioner and Standing Counsel for State of U.P., for the respondents. The writ petition was filed against the orders of Sub-Divisional Officer, dated 30.10.2011 and Commissioner dated 16.4.2014, passed in proceeding under section 33/39 of U.P. Land Revenue Act, 1901 (hereinafter referred to as the 'Act'). 2. The dispute relates to plot 702-D (area 1.14 acre) of village Kurawal, tappa Bankat, tahsil Gola, district Gorakhpur. Admittedly, plot 702 (area 41.549 acre) (old plot 1234 (area 41.59 acre) of village Kurawal, tappa Bankat, tahsil Gola, district Gorakhpur was recorded as river 'Kuano' in the khatauni 1323-F. It is also admitted that the land in dispute is affected by alluvial and delivual action of the river 'Kuano', in paragraph-4 of the writ petition. In khatauni 1389-F-1394-F, an area of 1.14 acre = 0.462 hectare of plot 702-D was recorded in khata 219 along with plot 292, in the name of Ram Narain Lal, father of the petitioners from 1394-F as bhumidhar with transferable right. After death of Ram Narain Lal, the names of his sons Anil Kumar, Shiv Kumar and Pramod Kumar (petitioners) were recorded over it. 3. Surya Prakash, Dinesh Yadav, Brahm Deo and Ram Shakal Yadav filed a complaint before Sub-Divisional Officer that plot 702 was the land of river. By committing forgery, names of various persons were recorded on this plots over different area. Sub-Divisional Officer directed Tahsildar to conduct an inquiry in this respect. The petitioners filed their objection before Tahsildar and stated that as the land in dispute was recorded in the name of their ancestor as such long standing entry cannot be corrected in the proceeding under section 33/39 of the Act. They also got filed an affidavit of then Pradhan stating therein that Gaon Sabha had no concern with the land in dispute, which was in possession of the petitioner from time of their ancestor. Dinesh Yadav and Ram Shakal Yadav also filed their affidavits denying their signatures on the complaint. Tahsildar submitted his report dated 1.10.2003 stating therein that Gaon Sabha was competent to protect the properties of Gaon Sabha, complaint by private person for Gaon Sabha property was not maintainable. Dinesh Yadav and Ram Shakal Yadav also filed their affidavits denying their signatures on the complaint. Tahsildar submitted his report dated 1.10.2003 stating therein that Gaon Sabha was competent to protect the properties of Gaon Sabha, complaint by private person for Gaon Sabha property was not maintainable. Names of the petitioners were recorded from the time of their ancestors and long standing entry cannot be corrected in the proceeding under section 33/39 of the Act Sub-Divisional Officer by order dated 12.11.2003 dropped the proceeding. Surya Prakash then filed a revision against the aforesaid order. Additional Commissioner by order dated 29.6.2004 dismissed the revision. 4. Surya Prakash then again filed another complaint dated 30.11.2009 before the Commissioner, who by order dated 4.12.2009 called for a report from Tahsildar. Tahsildar submitted a report dated 29.12.2009 stating therein that the names of the petitioners were recorded in the revenue record by making forgery over plot 702-D (area 1.14 acre). On this report, Assistant Collector by order dated 17.2.2010 directed for deleting the names of the petitioners from the land in dispute. The petitioners filed Writ-C No. 13008 of 2010 against the aforesaid order, which was allowed by this Court on 15.3.2010 and order dated 17.2.2010 was set aside and the matter was remanded to Deputy Collector for deciding the case afresh, after giving opportunity of hearing to the petitioners. Then the petitioners filed an objection dated 22.3.2010 before Deputy Collector stating therein that Ram Narain Lal was in possession of the land in dispute for last 30 years and his name was recorded as such. The village was placed under consolidation operation by notification dated 8.11.1969 and entry of the name of Ram Narain Lal was maintained in consolidation. Khatauni of the year 1359-F and basic consolidation year were not available. Entry made during consolidation cannot be deleted in the proceeding under section 33/39 of the Act. The complaint filed by Surya Prakash in this respect was already dismissed by Sub-Divisional Officer by order dated 12.11.2003 and revision filed against the aforesaid order was also dismissed on 29.6.2004. 5. Deputy Collector, after hearing the parties, by his order dated 31.10.2011 held that as the Commissioner as well as High Court has directed to make inquiry as such issue of maintainability of the proceeding, raised by the petitioner has become redundant. 5. Deputy Collector, after hearing the parties, by his order dated 31.10.2011 held that as the Commissioner as well as High Court has directed to make inquiry as such issue of maintainability of the proceeding, raised by the petitioner has become redundant. The petitioners could not prove as to how their names came to be recorded over the land in dispute. Since the land in dispute was land of river and vested in State of U.P. The land being of the category specified under section 132of U.P. Act No. 1 of 1951, no right can accrue to any one over it. On these findings he directed for deleting the names of the petitioners from the land in dispute by order dated 31.10.2011. The petitioners filed a revision (registered as Revision No. 89-G of 2011) from the aforesaid order. The revision was heard by Commissioner, who by order dated 16.4.2014 held that land in dispute was recorded as river 'Kuano' in khata 342 of khatauni 1323-F. The name of Ram Narain was recorded over an area of 1.14 acre of the land in dispute without any basis and without order of any competent authority. Forged entry, howsoever be long, can be corrected in the proceeding under section 33/39 of the Act and provisions of section 49 of U.P. Consolidation of Holdings Act, 1953 are not attracted. The land being of the category specified under section 132 of U.P. Act No. 1 of 1951, no right can accrue to any one over it. The revisions filed by Smt. Janki Devi and Ravindra Nath, raising similar issues, have already been dismissed by this Court. On these findings the revision of the petitioners was dismissed by order dated 16.4.2014. Hence this writ petition has been filed. 6. The Counsel for the petitioners submitted that Commissioner found that in CH Forms 11 and 23, area of plot 1234 was recorded as 28.58 acre. After consolidation new plot 702-Gha was made from old plot 1234 and in CH Form 45 its area was recorded as 24.16 acre. Thus remaining area of 41.59 acre of plot 1234, which was recorded in 1323 F was already gone to various tenure holders. Admittedly, khatauni 1359-F or basic consolidation year and CH Form 11 were torn. The name of Ram Narain Lal, father of the petitioners was recorded over the land in dispute since before date of vesting. Thus remaining area of 41.59 acre of plot 1234, which was recorded in 1323 F was already gone to various tenure holders. Admittedly, khatauni 1359-F or basic consolidation year and CH Form 11 were torn. The name of Ram Narain Lal, father of the petitioners was recorded over the land in dispute since before date of vesting. Entry was maintained during consolidation. The land in affected with fluvial action of river 'Kuano'. After recovery of some area of the land from river, it were settled to various persons and they were cultivating since long time. They have become sirdar/bhumidhar of the land in their possession. Their names were remained recorded during consolidation. The complaint is barred under section 49 of U.P. Consolidation of Holdings Act, 1953. Such an entry cannot be said to be forged entry and cannot be deleted in the proceedings under section 33/39 of the Act. Copy of the alleged report of Tahsildar was not supplied to the petitioners and no reliance can be placed on it. The complaint filed by Surya Prakash in this respect has already been dismissed by Sub-Divisional Officer by order dated 12.11.2003 and revision filed against the aforesaid order was also dismissed on 29.6.2004. Successive complaint made of Surya Prakash was not maintainable and inquiry made on it, is an abuse of process of the Court. Impugned orders are illegal and liable to be set aside. 7. I have considered the arguments of the Counsel for the petitioners and examined the record. The petitioners in their objection filed on 22.3.2010 have stated that Ram Narain Lal was in possession of the land in dispute from last 30 years. The earliest document filed by the petitioners is khatanui 1389-F-1394-F, as Annexure-1 to the writ petition, in which the land in dispute was recorded in the name of Ram Narain Lal since 1394-F corresponding to 1986. The petitioners could not file any document to show that the name of their ancestors were recorded prior to consolidation operation, which was started by notification dated 8.11.1969. Thus the contention that the name of Ram Narain Lal was recorded since before date of vesting is not liable to be accepted. Contrary to it, from own documents, it is found that the name of Ram Narain Lal came to be recorded for the first time in the year 1394-F. 8. Thus the contention that the name of Ram Narain Lal was recorded since before date of vesting is not liable to be accepted. Contrary to it, from own documents, it is found that the name of Ram Narain Lal came to be recorded for the first time in the year 1394-F. 8. Admittedly the land in dispute was the land of 'Kuano' river and falls in the category specified under section 132 of U.P. Act No. 1 of 1951 as such no right can accrue to any person over it, merely on the basis of possession. Otherwise also on the basis of possession, right cannot be claimed over the land vested in State of U.P. In the absence of any evidence to prove that the land in dispute was settled to Ram Narain Lal before date of vesting and in the light of khatauni 1389-F-1394-F in which the land in dispute was recorded in the name of Ram Narain Lal since 1394-F corresponding to 1986, findings that name of Ram Narain was recorded without any basis and without order of competent authority, does not suffer from any illegality. 9. So far as maintainability of the complaint is concerned, after the order of this Court dated 15.3.2010 passed Writ C No. 13008 of 2010 filed by the petitioners, this issue has become redundant and cannot be raised again by them. Entry of their names has been found to be forged as such provision of section 49 of U.P. Consolidation of Holdings Act, 1953 is not attracted. In view of the aforesaid discussions, there is no merit in the writ petition and it is dismissed.