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2016 DIGILAW 2167 (ALL)

RAM KHILAWAN v. BOARD OF REVENUE

2016-06-09

ANJANI KUMAR MISHRA

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JUDGMENT Hon’ble Anjani Kumar Mishra, J.—Heard Sri Arvind Srivastava, learned counsel for the petitioner, Sri Rohan Gupta for the Kanpur Development Authority and Sri Rajeev Mishra for the respondent No. 3. 2. The writ petition arises out of proceedings under Section 34 of the U.P. Land Revenue Act and seeks quashing of the order dated 3.7.2015 passed by the Commissioner as also the order dated 16.10.2015 passed by Board of Revenue U.P. at Lucknow. By order dated 3.7.2015, the opposite party No. 3 was ordered to be mutated over the land in dispute on the basis of free hold deed executed in his favour by the Kanpur Development Authority. This revisional order passed by the Commissioner been affirmed by the Board of Revenue. 3. The opposite party No. 3 applied for mutation on the basis of a free hold deed executed in his favour. The Tehsildar by the order dated 29.12.2014 rejected the mutation application on the finding that the petitioner was in possession over the land in question and that the Kanpur Development Authority had no title to the land in question and could not have executed the free hold deed. 4. The respondent No. 3 filed the revision before the Commissioner, which was registered as Revision No. 9/14-15. 5. The Commissioner by his order dated 3.7.2015 allowed the Revision filed by the respondent, holding that the land in question have been resumed by the State by means of notification dated 5.9.1986. 6. The consequential revision filed by the petitioner being Revision No. 1855/LR/2015 was dismissed by the Board of Revenue on 16.10.2015. 7. The case set up by the petitioner in his objection, in proceedings under Section 34 of the Land Revenue Act, before the Tehsildar as also before this Court, is that the father of the petitioner was recorded in the Khatauni of 1347 to 1391 Fasali. During consolidation operations, they continued in possession but by mistake, the land was recorded as Navin Parti. Reliance has also placed upon certain documents obtained under the Right to Information Act to show that the land in question never vested in the Kanpur Development Authority as it was never resumed by the State. During consolidation operations, they continued in possession but by mistake, the land was recorded as Navin Parti. Reliance has also placed upon certain documents obtained under the Right to Information Act to show that the land in question never vested in the Kanpur Development Authority as it was never resumed by the State. Even if the same was resumed, it was never given in the Management of the Kanpur Development Authority and therefore, it could not have been transferred by the Kanpur Development Authority in favour of the respondent No. 3. 8. It has also been submitted that the petitioner has filed a suit for declaration under Section 229-B of the Act as also a suit before the Civil Court for cancellation of the free hold deed in favour of the respondent No. 3. 9. It is next contended that the petitioner is in possession over the land in question and therefore mutation order passed in favour of the respondent No. 3 is illegal because mutation proceedings are to be decided, primarily, on the basis of the possession. 10. It is lastly contended that the proceedings are barred by Section 49 of the U.P. Consolidation of Holdings Act. 11. Sri Rohan Gupta, appearing on behalf of the Kanpur Development Authority has supported the impugned orders. He submits that the land in question was resumed by the State by means of a notification under Section 117 of the U.P. Zamindari abolition and Land Reforms Act, issued on, 5.9.1986. The property thereafter vested in the Kanpur Development Authority, which transferred the same in favour of the respondent No. 3, who has rightly been mutated over the same. He submits that the writ petition is liable to be dismissed. 12. His further contention is that since the petitioner has admittedly filed suits for declaration as also cancellation of the free hold deed, the writ petition should be dismissed. 13. Sri Rajeev Mishra, counsel for the respondent No. 3 has adopted the arguments of Sri Rohan Gupta. Additionally, he has submitted that the suit for declaration under Section 229-B of the Act filed by the petitioner pertain to only four plots, namely 1806, 1807, 2059-Kha and 2060 situated in village Katri Kherwa, Pargana & Tehsil Kanpur Nagar. 13. Sri Rajeev Mishra, counsel for the respondent No. 3 has adopted the arguments of Sri Rohan Gupta. Additionally, he has submitted that the suit for declaration under Section 229-B of the Act filed by the petitioner pertain to only four plots, namely 1806, 1807, 2059-Kha and 2060 situated in village Katri Kherwa, Pargana & Tehsil Kanpur Nagar. In paragraph 14 of the counter-affidavit filed by him, it has been averred that old survey plot No. 1202M area 11 Bighas and 10 Biswansi was bifurcated in survey plot Nos. 1802, 1803, 1804, 1805, 1806 and 1807. The old survey plot No. 1202M was recorded in Khata No. 168 and 674. Khata No. 168 was recorded in the name of seven sons of Indu including Sita Ram, the father of the petitioner, Ram Khelawan. He was therefore, a co-tenure holder to the extent of 1/6 share in Khata No. 168. Plot No. 1802, 1803, 1804, 1805 have already been sold out by the petitioner by means of a registered sale-deed dated 24.9.2004 as also by his brother, Ram Babu. It is therefore his case that the petitioner has no concern with plot Nos. 1802, 1803, 1804 and 1805, as on date, having already sold it. 14. As regards, remaining plot Nos. 1806 and 1807, it has been averred that these plots were recorded as Navin Parti during survey and record operations. No objection was filed regarding these plots during consolidation operations, and therefore, the petitioner cannot lay any claim on these plots. He states that these relevant facts have been concealed by the petitioner and therefore he has not come to this Court with clean hand and is therefore not entitled to any relief in exercise of my equity jurisdiction under Article 226 of the Constitution of India. 15. As regards, the suit for cancellation of the free hold deed, it has been averred and submitted that the Trial Court directed the petitioner and other plaintiffs to file advalorem Court fees. Against this order, a first appeal from order was preferred which was dismissed in default on 9.9.2015. Even the suit has been dismissed in default and a restoration application is pending consideration. 16. I have considered the submissions made by the parties and have persued the record. 17. Against this order, a first appeal from order was preferred which was dismissed in default on 9.9.2015. Even the suit has been dismissed in default and a restoration application is pending consideration. 16. I have considered the submissions made by the parties and have persued the record. 17. It emerges from the submissions made, as also from the record, that out of 16 plots over which, respondent No. 3 has been ordered to be mutated, the petitioner lays claim to only four plots. Out of these four plots, it is further revealed, that plot No. 1806 and 1807 were not recorded in the name of the petitioner or his father and were recorded as Navin Parti during the survey and record operations. Admittedly, consolidation operations intervened, but, the petitioner did not file any objection during consolidation operations asserting his the title to these plots. It is therefore not open for the petitioner to claim to the contrary in mutation proceedings. 18. In any case, a restoration application is pending. If, the suit is restored, his suit title or interest shall be determined therein and the mutation orders shall necessarily abide by the final decision in the suit. Admittedly a suit for declaration is also pending before the revenue Court. 19. I therefore, do not find any good ground to interfere with the orders impugned, which have been passed in the summary proceedings, under Section 34 of the U.P. Land Revenue Act, which do not determine the title of the parties therein. These proceedings are purely fiscal in nature and the findings returned therein do not operate as estoppel or res judicata in title proceedings before a Court of competent jurisdiction. 20. Accordingly and in view of the above, the writ petition warrants no interference. It is therefore dismissed. ———————