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2015 DIGILAW 2489 (ALL)

Laxman v. Parshadi

2015-08-19

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. Heard Sri Y.S. Bohra, for the petitioners and Sri Nitin Kumar Agrawal, for respondent-2/1. 2. The writ petition has been filed against orders of Sub-Divisional Officer dated 27.07.2002, decreeing suit for declaration of respondents-1 and 2, as owner of the land in dispute and directing ejectment of the petitioners, Additional Commissioner dated 16.04.2004 and Board of Revenue, U.P. dated 06.05.2015, dismissing the appeal and second appeal of the petitioners, in the suit under U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act). 3. The dispute related to old plots 784, 800, 801 and 802 (new plot 572) (total area 3-7-5 bigha) of village Afzalpur, majra Diwai, tahsil Anoopshahar, district Bulandshahar. Shobha son of Jorawar (now represented by the petitioners) was bhumidhar of the land in dispute. Initially Shobha executed a mortgage deed dated 30.09.1967 of plots 800 and 802 (area 3-2-8 bigha) in favour of Parsadi son of Chhiddu, for the period of 10 years. Thereafter, Shobha obtained permission to sell from Settlement Officer Consolidation and executed a sale deed dated 21.01.1969 of the land in dispute in favour Parsadi son of Umed and Horam son of Kalyan (now represented by respondents-1 and 2/1). Parsadi son of Umed and Horam filed an application for mutation of their names over the land in dispute before Consolidation Officer. Shobha filed an application dated 10.06.1969 before Consolidation Officer, giving his consent for mutation of the names of the respondents. Consolidation Officer by order dated 18.06.1969 allowed the application of the respondents and mutated their names over the land in dispute. 4. Parsadi son of Chhiddu filed a suit (registered as O.S. No. 276 of 1969) for permanent injunction restraining the respondents from interfering with his possession over the land in dispute. This suit was contested by the respondents. Shobha also filed his written statement in this suit, supporting title and possession of the respondents. Munsif, by judgment dated 31.05.1976, dismissed the suit. Parsadi son of Chhiddu filed an appeal (registered as Civil Appeal No. 216 of 1976) from the aforesaid decree, which was dismissed by judgment dated 07.12.1978. 5. Parsadi son of Chhiddu filed an appeal from the order of Consolidation Officer dated 18.06.1969, which was dismissed by Settlement Officer Consolidation by order dated 10.03.1972. Parsadi son of Chhiddu filed a revision (registered as Revision no. 47) against the aforesaid order. 5. Parsadi son of Chhiddu filed an appeal from the order of Consolidation Officer dated 18.06.1969, which was dismissed by Settlement Officer Consolidation by order dated 10.03.1972. Parsadi son of Chhiddu filed a revision (registered as Revision no. 47) against the aforesaid order. Deputy Director of Consolidation by order dated 03.08.1972 held that as mortgage of bhumidhari holding is prohibited as name of Parsadi son of Chhiddu cannot be mutated over the land in dispute on the basis of mortgage. The witnesses of Parsadi son of Umed and Horam could not prove their possession over the land in dispute which was necessary for mutation, as such order of Consolidation Officer directing to mutate their names was illegal. On these findings he allowed the revision and restored the entry of the name of Shobha over the land in dispute. The respondents filed a writ petition (registered as Writ Petition No. 5337 of 1972), which was disposed of with direction that order of Deputy Director of Consolidation would be subject to decree passed in Civil Suit No. 276 of 1969, treating it as an order passed in mutation proceeding, which is a summary proceeding. 6. As Deputy Director of Consolidation by order dated 03.08.1972 restored the name of Shobha over the land in dispute as such after death of Shobha, names of his sons Laxman and Sohanpal (the petitioners) were mutated in the revenue records. The petitioners filed an application dated 18.04.1979, under Section 145 Cr.P.C. alleging that there was dispute in respect of possession over the land in dispute between them on one side and the respondents on the other side. On this application, the police submitted a report for initiation of proceedings under Section 145 Cr.P.C. On which preliminary order and order of attachment of crops was passed on 02.05.1979. Sub-Divisional Magistrate by his order dated 31.07.2004 passed in Criminal Case No. 14 of 2003 under Section 145 Cr.P.C. held that on the date of attachment, the petitioners were in possession of the disputed land as such he directed to release the disputed land to the petitioners and the parties were directed to get their right decided by court of competent jurisdiction. The respondents filed a revision (registered as Criminal Revision No. 333 of 2004) against aforesaid order which was dismissed by order dated 16.12.2008. The respondents filed a revision (registered as Criminal Revision No. 333 of 2004) against aforesaid order which was dismissed by order dated 16.12.2008. It may be mentioned that during the proceedings under Section 145 Cr.P.C., the respondents filed a civil suit (registered as O.S. No. 62 of 1986), which was dismissed by judgment dated 22.01.1999 on the ground that subject matter of suit was bhumidhari holdings and the respondents had already filed a suit in Revenue Court, which has exclusive jurisdiction, for declaration of their title and ejectment of the petitioners. 7. The respondents filed a suit (registered as Suit No. 141 of 2000) under Sections 229-B and 209 of U.P. Act No. 1 of 1951, for declaring them as bhumidhar of the disputed land and ejectment of the petitioners from it, on 27.12.1982. The suit was contested by the petitioners, who filed their written statement on 27.03.1990. They took the plea that the respondents obtained sale deed dated 21.01.1969, by committing fraud on Shobha. The respondents never get possession over the disputed land on the basis of sale deed. Shobha and after his death, his sons were through out remained in possession over disputed land. Limitation for obtaining possession on the basis of sale deed has expired. They also filed an additional written statement stating therein that O.S. No. 62 of 1986 filed by the respondents was dismissed on 22.01.1999 and their possession has been upheld in proceedings under Section 145 Cr.P.C. 8. The suit was tried by Sub-Divisional Officer, who by judgment dated 27.07.2002 held that Shobha obtained permission from Settlement Officer Consolidation and executed sale deed dated 21.01.1969, in favour of the respondents. Shobha, in his application filed before Consolidation Officer and written statement filed before Munsif in Civil Suit No. 276 of 1969, admitted execution of sale deed dated 21.01.1969 and delivery of possession to the respondents over the land in dispute. No proceeding has been taken by the petitioners for cancellation of the sale deed. The respondents are bhumidhar of the land in dispute on the basis of the sale deed. As the suit was filed for ejectment of the petitioners as such the respondents were not in possession of the land in dispute but continuous possession of the petitioners from 21.01.1969 was not proved. The respondents are bhumidhar of the land in dispute on the basis of the sale deed. As the suit was filed for ejectment of the petitioners as such the respondents were not in possession of the land in dispute but continuous possession of the petitioners from 21.01.1969 was not proved. On these findings, suit was decreed, the respondents were declared as bhumidhar and the petitioners were directed for ejectment from of the land in dispute. 9. The petitioners filed an appeal (registered as Appeal No. 40 of 2002) from the aforesaid decree. The appeal was heard by Additional Commissioner, who by his order dated 16.04.2004, upheld the findings of Trial Court and dismissed the appeal. The petitioners filed a second appeal (registered as Second Appeal No. 118 Z.M. Of 2003-04) from the aforesaid decree, which was dismissed by Board of Revenue, U.P. by judgment dated 06.04.2015. Hence this writ petition has been filed. 10. The counsel for the petitioners submits that the land in dispute was mortgaged at the time of sale deed dated 21.01.1969. Sale deed dated 21.01.1969 was not executed by Shobha rather it was a fabricated document and void abnitio. As such the respondents could not obtain possession over disputed land. Deputy Director of Consolidation, in his order dated 03.08.1972, held that the respondents were not in possession over disputed land. In the proceedings under Section 145 Cr.P.C. also possession of the petitioners has been found by the order dated 31.07.2004. None of the Revenue Courts have recorded any findings in respect of possession of the respondents. The observation of Trial Court that the petitioner had not filed any suit for cancellation of the sale deed is irrelevant as the sale deed is a void document is liable to be ignored in this suit. The suit for ejectment was filed on 27.12.1982 although limitation for obtaining possession of the disputed land on the basis of sale deed dated 21.01.1969 has already expired long before it. The decree of courts below are illegal and liable to be set aside. 11. I have considered the arguments of the counsel for the parties and examined the records. The suit for ejectment was filed on 27.12.1982 although limitation for obtaining possession of the disputed land on the basis of sale deed dated 21.01.1969 has already expired long before it. The decree of courts below are illegal and liable to be set aside. 11. I have considered the arguments of the counsel for the parties and examined the records. Shobha obtained permission to sell from Settlement Officer Consolidation and executed the sale deed dated 21.01.1969 of the land in dispute in favour Parsadi son of Umed and Horam son of Kalyan, in which it has been mentioned that possession over the transferred land was given to transferees. Parsadi son of Umed and Horam filed an application for mutation of their names over the land in dispute before Consolidation Officer. Shobha filed an application dated 10.06.1969 before Consolidation Officer, giving his consent for mutation of the names of the respondents admitting their title and possession over it. Consolidation Officer by order dated 18.06.1969 allowed the application of the respondents and mutated their names over the land in dispute. Parsadi son of Chhiddu (mortgagee) filed a suit (registered as O.S. No. 276 of 1969) for permanent injunction restraining the respondents from interfering with his possession over the land in dispute. This suit was contested by the respondents. Shobha also filed his written statement in this suit, supporting title and possession of the respondents. Deputy Director of Consolidation, in his order dated 03.08.1972 has illegally ignored the own admission of Shobha and held that the respondents were not in possession of the land in dispute. Order of Deputy Director of Consolidation was made subject to result of Civil Suit No. 276 of 1969, by this Court, which was decided in favour of the respondents by judgment dated 31.05.1976. In this suit, the respondents also filed receipts relating to payment of irrigation dues, which also corroborate possession of the respondents over the land in dispute before its attachment in the proceeding under Section 145 Cr.P.C. Thus from the aforesaid facts it is proved that Shobha during his life time admitted title and possession of the respondents over disputed land before Consolidation Officer and in Civil Suit No. 276 of 1969 and till the attachment of the disputed land on 11.06.1979, the petitioners never raised any dispute relating to title and possession of the respondents. So far as title and possession claimed by Parsadi son of Chhiddu (mortgagee), he has lost from civil court and his suit as well as appeal was finally dismissed on 07.12.1978. From 11.06.1979 to 31.07.2004, disputed land remained in attachment. Possession of custodia legis is treated as possession of the person, whose title is upheld in the suit as held by this Court in Aneg Singh Vs. Ram Nath, 1973 RD 290 and Supreme Court in Deo Kuer Vs. Shiv Pratap Singh, AIR 1966 SC 359 and Shanti Kumar Panda Vs. Shankarlata Devi, 2013 (12) AIC 116 (SC)= AIR 2004 SC 115 . According to the respondents, they were deprived from possession by attachment of the property in dispute on 11.06.1979. Thus suit for ejectment was well within time from the date of attachment. 12. Neither Shobha nor the petitioners earlier denied title and possession of the respondents. In fact, Shobha, in application dated 10.06.1969 filed before Consolidation Officer, gave his consent for mutation of the names of the respondents. Order of Consolidation Officer directing to mutate the names of the respondents was not challenged by Shobha or the petitioners. It is only in the revision filed by Parsadi son of Chhiddu, Deputy Director of Consolidation, ignoring own admission of Shobha, restored the name of Shobha in the revenue records. Taking advantage of this entry, the petitioners began to dispute possession of the respondents from 18.04.1979. Thus in view of the aforesaid facts and evidence on record, Revenue Courts have not committed any illegality in decreeing the suit of the respondents 13. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.