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2015 DIGILAW 3638 (ALL)

Ram Akchhaivar v. Hon. Board of Revenue Alld.

2015-11-20

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. – Heard Sri A.K. Singh, learned counsel for the petitioner, Sri A.K. Tripathi, learned counsel for respondent No. 6, Sri R.B. Yadav, learned counsel for the Gaon Sabha and learned Standing Counsel for the State respondents. 2. The petitioner has sought quashing of orders dated 30.6.2015 passed by the respondent No. 2, Sub Divisional Officer, Gyanpur, Bhadohi, District Sant Ravi Das Nagar and the order dated 11.8.2015 passed by the respondent No. 1, the Board of Revenue. 3. The facts of the case briefly stated are that the petitioners filed a suit under Section 229-B seeking to be declared Bhumidhar of plot No. 87/1 of village Jamunipur, Vaad Farros, Tehsil Bhadohi, District Sant Ravi Das Nagar. 4. The suit was decreed on 27.8.1994 declaring the petitioners to be Bhumidhar with non-transferable rights. This order was recalled on a recall application filed by the Gaon Sabha vide order dated 27.8.1994. Against this order, petitioners filed a revision and the matter was referred to the Board of Revenue. The Board of Revenue by order dated 15.5.1995 set aside the order passed on the recall application of the Gaon Sabha and remanded the matter for fresh consideration of the recall application. 5. The Trial court again set aside the judgement and decree in favour of the petitioner. The petitioners again filed a revision which was allowed by the Additional Commissioner on 19.9.1998 for fresh consideration of the recall application. 6. Upon remand the restoration application of the Gaon Sabha was dismissed on 28.7.2000. On 31.10.2013, it appears that the respondent No. 6 filed an application for recall of the order dated 27.8.1994. The delay in filing this restoration application was condoned and the restoration application was allowed setting aside the orders dated 17.5.2000 and 27.8.1994. 7. The petitioners filed a restoration application to recall this order dated 31.10.2013 which was dismissed on 26.9.2014. The petitioner, thereafter, filed writ petition being Writ Petition No. 53549 of 2014. This writ petition was dismissed on 15.10.2014. A further direction was issued to the Sub Divisional Officer to decide the case after affording opportunity to the parties to adduce evidence. A review application was also dismissed on 18.4.2015. 8. The suit of the petitioner, therefore, stood restored to its original number and was required to be decided on the basis of evidence of the parties. A further direction was issued to the Sub Divisional Officer to decide the case after affording opportunity to the parties to adduce evidence. A review application was also dismissed on 18.4.2015. 8. The suit of the petitioner, therefore, stood restored to its original number and was required to be decided on the basis of evidence of the parties. At this stage, the Gaon Sabha filed an application that the question of maintainability of the suit be decided first. The matter, thereafter, appears to have been adjourned on several dates. On 27.6.2015, the petitioners were directed to file written arguments and also to advance oral arguments. This was not done and vide order dated 30.6.2015, the suit was dismissed holding it to be not maintainable. 9. This order of the Trial Court has been affirmed by the Board of Revenue in revision vide order dated 11.8.2015. Hence, this writ petition challenging the orders dated 30.6.2015 and 11.8.2015. 10. When this matter initially came up for admission, this Court vide order dated 29.9.2015 noticed that the only contention raised in the writ petition was that the Sub Divisional Officer has not fixed any date for evidence, the order of the Trial Court was passed without giving opportunity to the petitioners to adduce evidence. This order also records that several dates were fixed in the matter but neither any evidence nor any written argument or oral submissions were advanced. Noticing the fact that the matter has been pending since 1995 and the petitioner had not adduced any evidence, the Counsel for the petitioner was granted time to file the evidence sought to be relied upon by the petitioner before this Court. 11. This supplementary affidavit has been filed on record in pursuance of order dated 29.9.2015. Along with this supplementary affidavit, the Khasra of 1397 has been filed as Annexure -1. In this Khasra, the name of Triloki is mentioned in the remarks column as being in possession. This is the only documentary evidence filed by the petitioner in support of his case which primarily is that the petitioners belong to the scheduled caste and having remained in possession over land belonging to the Gaon Sabha from before the cut off date, they are liable to be declared it Bhumidhars with non transferable rights. This is the only documentary evidence filed by the petitioner in support of his case which primarily is that the petitioners belong to the scheduled caste and having remained in possession over land belonging to the Gaon Sabha from before the cut off date, they are liable to be declared it Bhumidhars with non transferable rights. It has also been averred in this supplementary affidavit that the name of the petitioners was recorded over the land in question on the basis of the ex parte decree in their favour and they are recorded also in possession over since. In paragraph no. 9 it has been averred that the petitioners were not afforded opportunity to adduce oral evidence whereby they could have substantiated their possession from before the cut off date. 12. Learned counsel for the respondents have submitted that the suit of the petitioner was decreed in the year 1994 without their being any documentary evidence available on record to substantiate the possession of the petitioner over land in question. This fact has also been noticed in the order of this Court passed in Writ Petition No. 53549 of 2014. It is further submitted that in the year 1990, upon resolution of the Gaon Sabha the land in question had been reserved for a Bus Depot, a Kanya Pathshala, Guest House, Panchayat Bhawan and Ramlila Maidan. The Board of Revenue upon consideration of this submission has recorded that it is clear that the land in question has been resumed by the State. It is further recorded that the land in question is land of public utility covered by Section 132 of the U.P. Zamindari Abolition and Land Reforms Act, wherein no rights can accrue in favour of the petitioner in view of sub Section 4F of Section 122-B. 13. I have considered the submissions made by the learned counsel for the parties and have perused the record. 14. At the very outset, it would be relevant to note that the suit was instituted on 23.5.1994. At this time, the cut off date for granting benefit of sub Section 4-F of Section 120-B was 30.6.1985. The Khasra that has been filed as evidence along with the supplementary affidavit is of 1997 Fasli which would correspond to the year 1990. At the very outset, it would be relevant to note that the suit was instituted on 23.5.1994. At this time, the cut off date for granting benefit of sub Section 4-F of Section 120-B was 30.6.1985. The Khasra that has been filed as evidence along with the supplementary affidavit is of 1997 Fasli which would correspond to the year 1990. It therefore necessarily follows that the petitioners have failed to adduce any evidence even before this Court that would establish that they were in possession over the land of the Gaon Sabha from prior to or even on the cut off date. 15. Even otherwise, this Court in several judgements including the judgement in the case of Ghanshyam Singh v. State of U.P., 2005 (1) RD 489-B has held that the benefit of sub Section 4-F of Section 122-B should not be extended to any person relying exclusively upon either the oral testimony or upon reports of the revenue authorities. Such benefit should be granted only, in cases, where a person is recorded in the Khasra from before the cut off date or in cases where proceedings under Section 122-B, for eviction, have been initiated and were pending on the cut off date. It is, therefore, clear that there is no evidence on record which would substantiate the allegations of the petitioner. The petitioners have, therefore, failed to establish that they were in unauthorized occupation of plots in question recorded in the name of the Gaon Sabha from before or even on the cut off date. 16. This Court is, therefore, constrained to hold that the impugned orders have been rightly passed and the suit of the petitioner has been rightly dismissed. The revision of the petitioner has also been rightly and for cogent reasons dismissed by the Board of Revenue and in my considered opinion both these orders call for no interference. 17. The writ petition is, therefore, found to be without force and is, accordingly, dismissed. Petition Dismissed.