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2015 DIGILAW 2657 (ALL)

Lal Chand v. Board of Revenue

2015-08-28

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. Heard Sri S.S. Sharma, for the petitioners, Sri Rajesh Kumar and Sri Vivekanand Rai, for the contesting respondent-4. 2. This writ petition has been filed against the orders of Additional Commissioner dated 10.03.2015 and Board of Revenue, U.P. dated 12.05.2015, passed in mutation proceeding under Section 34 of U.P. Land Revenue Act, 1901. 3. Previous facts of the case are that during consolidation dispute between the parties arose in respect of land of chak 149 (consisting plots 154, 157, 158 and 177) of village Salarpur, pargana Shivpur, district Varanasi. During consolidation, chak 149 was carved out in the name Sheo Das, who inherited it, from his mother Smt. Naujaddi wife of Mohan. Smt. Naujaddi inherited it, from her father Luttur son of Sheo Ambar. Lal Chandra (respondent-4) filed an objection (registered as Case No. 306) under Section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the "Act"), for recording his name over the land in dispute, on the basis of sale deed dated 19.05.1981, executed by Civil Judge, Varanasi, in execution of the decree for specific performance of contract dated 01.10.1975 passed in O.S. No. 176 of 1976. It has been stated by Lal Chandra that Smt. Naujaddi inherited the land in dispute from her father Luttur. Smt. Naujaddi took money from him time to time since 1970. She executed a registered agreement to sell dated 01.10.1975 of the land in dispute to Lal Chandra for total Rs. 5000/- out of which Rs. 4000/- was paid up to the date of agreement, which was acknowledged in it. Possession over the land in dispute was also given in lieu of part performance of the contract. Sheo Das son of Naujaddi also took Rs. 800/- on 15.10.1975 and executed a receipt in which he acknowledged payment of Rs. 4000/- and execution of agreement to sell dated 01.10.1975 by Naujaddi. However Naujaddi died in the meantime and was inherited by Sheo Das, who has refused to execute the sale deed. The suit was contested by Sheo Das. Civil Judge, Varanasi by judgment dated 22.08.1979 decreed the suit. Sheo Das did not comply with the decree. Then Lal Chandra filed Execution Case No. 5 of 1980, in which Civil Judge Varanasi executed a sale deed dated 19.05.1981 of the land in dispute in his favour. 4. The suit was contested by Sheo Das. Civil Judge, Varanasi by judgment dated 22.08.1979 decreed the suit. Sheo Das did not comply with the decree. Then Lal Chandra filed Execution Case No. 5 of 1980, in which Civil Judge Varanasi executed a sale deed dated 19.05.1981 of the land in dispute in his favour. 4. The case was contested by Sheo Das son of Mathura and Dayaram son of Ram Nath on the ground that sale deed dated 19.05.1981 was executed without obtaining necessary permission to sell from competent authorities under Section 5 (1) (c) of the Act and Section 26 and 27 of Urban Land (Ceiling and Regulation) Act, 1976 as such sale deed is void and name of Lal Chandra cannot be mutated over the land in dispute on its basis. Consolidation Officer, consolidated this objection along with Case No. 309, under Section 12 of the Act, filed by one Alauddin and heard together, who by order dated 06.03.1991, held that Consolidation Officer, in Case No. 980/2394, under Section 9-A of the Act, by order dated 30.09.1980 held that Sheo Das son of Mathura was heir of Smt. Naujaddi and had 1/3 share in the land of khata 196 and sole owner of the land of khata 197. Chak-149 was carved out in lieu of land of khata 196 and 197 of Smt. Naujaddi. It was admitted to Lal Chandra that village Salarpur was within purview of Urban Land (Ceiling and Regulation) Act, 1976 as such permission to sell, from Competent Authority was necessary. In the judgment dated 22.08.1979, also Civil Judge directed Sheo Das to obtain permission to sell from Competent Authority and execute sale deed within three months and in case permission to sell is refused then directed the defendant to return earnest money of Rs. 4800/ along with interest. Lal Chandra could not prove that necessary permission to sell was obtained before execution of the sale deed dated 19.05.1981. As such sale deed is void under Section 5 (3) and 10 (4) of Urban Land (Ceiling and Regulation) Act, 1976. On these findings objection of Lal Chandra was dismissed. 5. Lal Chandra filed an appeal (registered as Appeal No. 1908/2994) from aforesaid order. As such sale deed is void under Section 5 (3) and 10 (4) of Urban Land (Ceiling and Regulation) Act, 1976. On these findings objection of Lal Chandra was dismissed. 5. Lal Chandra filed an appeal (registered as Appeal No. 1908/2994) from aforesaid order. Settlement Officer Consolidation, by order dated 05.10.2002, held that Civil Judge Varanasi moved an application for permission to sell before Competent Authority under Urban Land (Ceiling and Regulation) Act, 1976 which was registered at Serial No. 547 in the Permission Register, on which "No objection" was mentioned, which is sufficient for execution of the sale deed under Section 26 and 27 of Urban Land (Ceiling and Regulation) Act, 1976. On the backside of the sale deed, Sub-Registrar has also noted "No objection" from Competent Authority. As such sale deed dated 19.05.1981 is not liable to be ignored. On these findings he allowed the appeal, set aside the order of Consolidation Officer and directed for recording the name of Lal Chandra over the land in dispute and his share has been decided. 6. Bhonu and others filed a revision (registered as Revision No. 851/988) from the aforesaid order. One Dasrath Singh also filed a revision (registered as Revision No. 869/1009) from the aforesaid order. Deputy Director of Consolidation, consolidated both the revisions and heard together, who by order dated 15.06.2004 held that under Section 26 of Urban Land (Ceiling and Regulation) Act, 1976, notice of the sale is required to be given to Competent Authority. If Competent Authority is not willing to purchase the land within sixty days of notice, then tenure holder can sell the land according to his will. In this case notice under Section 26 has been given by Civil Judge Varanasi, which is registered at Serial Number 547. Even if certificate of "No objection" is not issued then also after expiry of sixty days, sale deed can be executed as such sale deed dated 19.05.1981 is valid. Order of Settlement Officer Consolidation does not suffer from any illegality. On these findings, he dismissed the revisions. Bhonu and others filed Writ B No. 58534 of 2009, in which interim order restraining the parties from changing nature/status of the land in dispute and alienating the land and trees standing over it has been granted on 05.11.2009 but it was not extended on 16.08.2011. On these findings, he dismissed the revisions. Bhonu and others filed Writ B No. 58534 of 2009, in which interim order restraining the parties from changing nature/status of the land in dispute and alienating the land and trees standing over it has been granted on 05.11.2009 but it was not extended on 16.08.2011. That writ petition was also heard along with this writ petition, which is dismissed today by separate judgment. 7. On the basis of interim order dated 05.11.2009, Bhonu and others filed an application before Naib Tahsildar (registered as Case No. 1731 of 2011) under Section 34 of U.P. Land Revenue Act, 1901, for mutation of their names in place of their father Sheo Das, which was dismissed by Naib Tahsildar by order dated 29.03.2014. Bhonu and others filed a revision (registered Revision No. 201140000547 of 2014) against the aforesaid order. The revision was heard by Additional Commissioner, who by order dated 10.03.2015 held that as the land in dispute was recorded in the name of Sheo Das, who is dead. Dispute based on agreement to sale executed by Smt. Naujaddi dated 01.10.1976 has not become final and still pending before High Court as such no prejudice will be caused to Lal Chandra in mutating the names of Bhonu and others, who are admittedly heirs of Sheo Das. On these findings, he allowed the revision and directed for recording the names of Bhonu and others over the land in dispute. Lal Chandra filed a revision (registered as Revision No. 987 of 2015), which was dismissed by Board of Revenue, U.P. by judgment dated 12.05.2015. Hence this writ petition has been filed. At the time, when writ petition was heard as fresh case, the contesting respondents put appearance before this Court and with the consent of the parties, this writ petition was heard along with Writ B No. 58534 of 2009 finally as all the relevant facts for deciding the controversy between the parties were already on record in Writ B No. 58534 of 2009, where pleading were complete. 8. I have considered the arguments of the counsel for the parties and examined the record. As title and possession of Lal Chandra (the petitioner) was sub-judice before this Court in Writ B No. 58534 of 2009, Additional Commissioner directed for mutating the names of Bhonu and others over the land in dispute. 8. I have considered the arguments of the counsel for the parties and examined the record. As title and possession of Lal Chandra (the petitioner) was sub-judice before this Court in Writ B No. 58534 of 2009, Additional Commissioner directed for mutating the names of Bhonu and others over the land in dispute. Now Writ B No. 58534 of 2009 is dismissed by a separate judgment today as such orders of Settlement Officer Consolidation and Deputy Director of Consolidation directing to record the name of Lal Chandra over the land in dispute is upheld as such name of Lal Chandra (the petitioner) is liable to be recorded over the land in dispute. 9. In the result, the writ petition succeeds and is allowed. The orders of Additional Commissioner dated 10.03.2015 and Board of Revenue, U.P. dated 12.05.2015 are set aside. Naib Tahsildar is directed to record the name of the petitioner over the land in dispute.