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2015 DIGILAW 1738 (ALL)

Munni Devi v. Board of Revenue

2015-07-03

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Durvijay Singh, for the petitioner and Sri Mohammad Khalid, for respondent-4. The writ petition has been filed against the orders of Additional Commissioner dated 18.10.2007, allowing the revision of respondent-4 and setting aside the order of Sub-Divisional Officer dated 7.6.2004 and Board of Revenue, U.P. dated 21.1.2015, dismissing the revision of the petitioner, arising out of proceeding under U.P. Land Revenue Act, 1901 (hereinafter referred to as the Act). 2. The dispute between the parties relates to mutation of the name of Mohammad Yunus (respondent-4) on plots 137 (area 0.227 hectare) and 169 (area 0.142 hectare) of village Hasanpur, pargana and district Mainpuri as. co-sharer of 1/8 share. It may be mentioned that land in dispute was previously holdings of Ram Swarup son of Parasuram of village Paithan Khurd Buzurg, pargana Shamshabad Paschim, tahsil Kaimganj, district Farrukhabad, who died on 30.10.1989. 3. Sharda Devi (respondent-3) filed an application (registered as Case No. 199/464),,under section 34 of the Act, for mutation of her name, over the land of Ram Swarup of village Hasanpur, on the basis of an unregistered will dated 30.7.1989, allegedly executed by Ram Swarup in her favour. Tahsildar by order dated 13.7.1990, directed for mutation of the name of Sharda Devi, over.the land in dispute, including other land of Ram Swarup. 4. Bankey Lal and Mangu Ram filed an application for recall of the order dated 13.7.1990, before Tahsildar. Tahsildar by order dated 31.10.1990, recalled the order dated 13.7.1990. Thereafter, by order dated 15.12.1990 dismissed the mutation application of Sharda Devi. Sharda Devi (respondent-3) filed an appeal from the aforesaid order dated 15.12.1990, which was allowed of by Additional Collector by order dated 30.9.1991, on the ground that Tahsildar has to decide as to who was heir of Ram Swarup but he had illegally not decided this issue. Therefore the matter was remanded to Tahsildar to decide the issue as to who was heir of Ram Swarup. Sharda Devi filed a revision (registered as Revision No. 12 of 1991-92) against aforesaid order. Additional Commissioner, by order dated 28.9.1993 dismissed the revision. The.. matter is still pending before Tahsildar. 5. In the meantime, Sharda Devi executed a sale deed dated 24X1996, in respect of 1/8 share in plots 137 (area 0.227 hectare) and 169 (area 0.142 hectare) of village Hasanpur, in favour of Mohammad Yunus. Additional Commissioner, by order dated 28.9.1993 dismissed the revision. The.. matter is still pending before Tahsildar. 5. In the meantime, Sharda Devi executed a sale deed dated 24X1996, in respect of 1/8 share in plots 137 (area 0.227 hectare) and 169 (area 0.142 hectare) of village Hasanpur, in favour of Mohammad Yunus. Mohammad Yanus filed an application (registered as Case No. 285), under section 34 of the Act, for mutation of his name, over it, on the basis of sale deed. Tahsildar by order dated 31.5.1996 directed for mutation of the name of Mohammad Yanus. Munni Devi filed an application for recall of the order, dated 31.5.1996, which was rejected by order of Tahsildar dated 17.6.1997 on the ground that Munni Devi has filed an application for setting aside the order of Tahsildar dated 4.8.1995 allowing mutation application of Sharda Devi, in respect of property of Ram Swarup of village Paithan Khurd Buzurg, pargana Shamshabad Paschim district Farrukhabad. Additional Commissioner, by order dated 21.3.1997 submitted a reference to Board of Revenue U.P. for allowing the revision and setting aside the order dated 26.8.1995 and reinstating the order of mutation of the name of Sharda Devi dated 4.8.1995. As such Will of Ram Swarup dated 30.7.1989 in favour of Sharda Devi, which Was in respect of entire property of Ram Swarup has been accepted while this case related to two plots only as such order dated 31.5.1996 was not liable to be recalled. 6. The petitioner filed an appeal (registered as Appeal No. 83 of 1996-97) from the aforesaid order. Sub-Divisional Officer by his order dated 7.6.2004 allowed the appeal and set aside the orders dated 31.5.1996 and 17.7.1997 passed by Tahsildar and remanded the matter for deciding the mutation application of Mohammad Yanus along with Mutation Case No. 199/464 filed by Sharda Devi. Mohammad Yunus filed a revision (registered as Revision No. 64 of 2004) from the aforesaid order. The revision was heard by Additional Commissioner, who by order dated 18.10.2007 allowed the revision and set aside the order of Sub-Divisional Officer dated 7.6.2004 and maintained the orders of Tahsildar. The petitioner filed a revision (registered as Revision No. 790/LR/2007-08) from the aforesaid order, which was dismissed by Board of Revenue, U.P. by order dated 21.1.2015. Hence this writ petition has been filed. 7. The petitioner filed a revision (registered as Revision No. 790/LR/2007-08) from the aforesaid order, which was dismissed by Board of Revenue, U.P. by order dated 21.1.2015. Hence this writ petition has been filed. 7. It may be mentioned that in the meantime, reference sent by Additional Commissioner, by order dated 21.3.1997 to Board of Revenue U.P. for allowing the revision and setting aside the order dated 26.8.1995 and reinstating the order dated 4.8.1995, has been accepted by Board of Revenue, U.P. by order dated 6.12.2004 and recall application filed by the petitioner has also been rejected by order dated 9.8.2010. The petitioner filed Writ B No. 53672 of 2010 against aforesaid orders. This Court by order dated 3.9.2010 although entertained writ petition but rejected stay application. Today by a separate order, Writ B No. 53672 of 2010 is dismissed on the ground of alternative remedy of suit, which had already been filed by the petitioner i.e. Suit No. 70 of 1991 under section 299-B of U.P. Act No. 1 of 1951. 8. The Counsel for the petitioner submitted that the order of mutation dated 13.7.1990, directing for mutation of the name of Sharda Devi has already been recalled on 31.10.1990. Mutation application of Sharda Devi is still pending. Sharda Devi had no right to sell the land in dispute. Mutation application of Mohammad Yunus filed on the basis of sale-deed dated 24.1.1996 executed by Sharda Devi in his favour was not maintainable and liable to be dismissed. In any case both the mutation cases filed by Sharda Devi and Mohammad Yunus were liable to be consolidated and decided together as directed by Sub-Divisional Officer. Additional Commissioner has illegally allowed the revision of Mohammad Yunus. Board of Revenue has illegally dismissed the revision of the petitioner. Mutation case of district Farrukhabad and orders passed in it were irrelevant for the purposes of this case. No reliance can be placed on it. Impugned orders have been passed on irrelevant consideration and are illegal and liable to be set aside. 9. I have considered the arguments of the Counsel for the parties and examined the record. It is not disputed that Ram Swarup owned properties in villages, Paithan Khurd Buzurg, pargana Shamshabad Paschim district Farrukhabad and Hasanpur, pargana and district Mainpuri. Impugned orders have been passed on irrelevant consideration and are illegal and liable to be set aside. 9. I have considered the arguments of the Counsel for the parties and examined the record. It is not disputed that Ram Swarup owned properties in villages, Paithan Khurd Buzurg, pargana Shamshabad Paschim district Farrukhabad and Hasanpur, pargana and district Mainpuri. Sharda Devi based her title on the Will dated 30.7.1989 allegedly executed by Ram Swarup in her favour in respect of his entire properties. According to the petitioner, Ram Swarup did not execute the Will dated 30.7.1989, which is a fabricated document. Ram Swarup died issueless and was inherited by his brother Bankey Lal, who has also died. Bankey Lal has executed a Will dated 13.2.1990 in favour of Munni Devi. Thus same Will of Ram Swarup is being relied by Smt. Sharda Devi in respect of the land of two villages. Similarly, the petitioner also relies upon same Will dated 13.2.1990 executed by Bankey Lal in her favour for both the villages. The name of the petitioner has not been mutated so far in any of the village while name of Sharda Devi has been mutated over the land of village Paithan Khurd, The order dated 4.8.1995, directing for mutation of the name of Sharda Devi being between the same parties, based on the same Will dated 30.7.1989 was relevant and it cannot be said that Additional Commissioner and Board of Revenue, U.P. have based its orders on irrelevant consideration. 10. Munni Devi has filed a suit (registered as Suit No. 70/1991) under section 229-B of U.P. Act No. 1 of 1951, for declaring her as owner of the land in dispute, on the basis of will dated 13.2.1990, which is still pending. In this suit validity of the will dated 30.7.1989 set up by Sharda Devi has been challenged. In view of section 40-A of the Act, the order passed under section 34, can be challenged in the suit. Mutation order is passed in summary proceeding and does not decide the title of the parties finally. In case, the suit filed by the petitioner is decreed and Will dated 30.7.1989 is not found genuine or the mutation application of Sharda Devi which is still pending before Tahsildar Mainpuri is dismissed then mutation order dated 31.5.1996 shall be liable to be set aside as it is based on pendente lite transfer. In case, the suit filed by the petitioner is decreed and Will dated 30.7.1989 is not found genuine or the mutation application of Sharda Devi which is still pending before Tahsildar Mainpuri is dismissed then mutation order dated 31.5.1996 shall be liable to be set aside as it is based on pendente lite transfer. In view of the aforesaid discussions, the writ petition is dismissed. However as the mutation application of Sharda Devi is pending since 1990 as such Tahsildar shall decide it expeditiously preferably within a period of four months after hearing the parties, without being influenced by the observations of this Court, made in this judgment. ………………