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2016 DIGILAW 2461 (ALL)

Kifayat Husain v. D. D. C.

2016-07-15

ANJANI KUMAR MISHRA

body2016
JUDGMENT Anjani Kumar Mishra, J. – I have heard Shri B.K. Pandey for the petitioner in writ petition no. 30161 of 2015, Shri K.D. Tiwari for the petitioner in writ petition no. 7235 of 2012 and Shri Umesh Shanker for the respondents. I have also heard learned Standing Counsel for the State-respondents in this writ petitions. 2. The writ petition no. 7235 of 2012 filed by Kifayat Husain is directed against an order dated 16.12.2011 passed by the respondent no. 4 which appears to have been passed in exercise of powers under Section 48 of the Act. 3. Against this order dated 16.12.2011, Ali Bahadur and Mohammad Jaan filed a restoration application, which was dismissed by the Deputy Director of Consolidation. These two persons filed a writ petition before this Court, which was disposed of vide order dated 03.08.2013 granting them liberty to file an appropriate application before the District Magistrate/Collector, Rampur. This application was duly filed, but it was rejected by the District Magistrate on 30.09.2013, on the ground of pendency of writ petition no. 7235 of 2012. 4. The writ petition no. 30161 of 2015 filed by Ali Bahadur is directed against the order of the District Magistrate dated 16.12.2011. A mandamus is also sought for necessary action in pursuance of the order dated 16.12.2011. 5. When the petition no. 30161 of 2015 came up for admission, the record of writ petition no. 7235 of 2012 was summoned and both these petitions have been heard and are being decided finally. The decision in writ petition no. 7235 of 2012 is likely to dispose of writ petition no. 30161 of 2015 also. 6. The dispute in the writ petition no. 7235 of 2012 pertains to plot no. 304/2 area 1.13 hectares of Village Amberpur, Tehsil Bilaspur, District Rampur. The claim of the petitioner in this writ petition is that this plot no. 304 area 2.26 hectares was recorded under class 3 in CH Form 23 and 45 of 1367 Fasli in his name and in the name of Abdul Gafoor, father of respondent no. 4, in this writ petition. The recorded co-tenure holder, Abdul Gafoor, took a loan from the Bank and mortgaged his half share in the disputed land. Since the loan was not repaid, the mortgaged land was auctioned for recovery of the loan. 4, in this writ petition. The recorded co-tenure holder, Abdul Gafoor, took a loan from the Bank and mortgaged his half share in the disputed land. Since the loan was not repaid, the mortgaged land was auctioned for recovery of the loan. The auction purchaser, one Sukhvinder Singh filed a suit for partition, which was decreed and his share was numbered as plot no. 304/1. The remaining portion namely plot no. 304/2 belongs to the petitioner. 7. A suit under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act was filed against the petitioner by the Gaon Sabha. The suit was decreed on the ground that period of the Asami lease had expired. 8. The petitioner preferred appeal no. 39 of 2003-04, which was allowed on 25.01.2006 and the matter was remanded back to the Sub Divisional Magistrate for a fresh decision. 9. The Sub Divisional Magistrate passed a judgment and order dated 27.07.2010, dismissing the suit on the ground that it was not proved that the khata in question was an Asami khata. 10. Thereafter the respondent no. 4 in this writ petition filed a complaint/application before the Deputy Director of Consolidation who by the order impugned, dated 16.12.2011, directed that the name of the petitioner be expunged from the land in question. He returned categorical findings, upon appreciation of the evidence on record, that the name of the petitioner was incorporated in CH Form 23 and 24 by resorting to overwriting. It was observed that it was a case of overwriting, because in the CH Form 11 filed, only the name of Abdul Gafoor was recorded over the land in question. A further direction was issued that the papers be forwarded to the District Magistrate for passing appropriate orders and also for taking action against the persons responsible for this interpolation in the revenue records, made without any order having been passed by any competent authority in this regard. 11. The contention of learned counsel for the petitioner is that his name is recorded in CH Form 23 and 45. It is not in issue that Abdul Gafoor, his co-tenure holder had mortgaged his share. This share of Abdul Gafoor was auctioned for recovery of the loan and, thereafter, the auction purchasers filed a suit for partition, which has been decreed. It is not in issue that Abdul Gafoor, his co-tenure holder had mortgaged his share. This share of Abdul Gafoor was auctioned for recovery of the loan and, thereafter, the auction purchasers filed a suit for partition, which has been decreed. Subsequently, the suit filed by the Gaon Sabha under Section 202 of the Act for eviction of the petitioner, was first decreed but was subsequently decided in favour of the petitioner. In none of these proceedings, any claim was raised by Abdul Gafoor or his successors. The complaint before the Deputy Director of Consolidation was therefore, bogus and by an unconcerned persons. The Deputy Director of Consolidation, therefore, committed manifest illegality in considering the same and directing that the name of the petitioner be expunged. 12. Learned counsel appearing for the respondents have supported the impugned order. 13. In view of the categorical findings of fraud, overwriting and interpolation in the revenue records, a specific query was put to learned counsel for the petitioner as to how and under what circumstances his name came up to be recorded in CH Form 23 and 45, which entries are the basis of his claim. Learned counsel for the petitioner had no answer to this pointed query. 14. It is relevant to note that the Deputy Director of Consolidation, has in the impugned order, observed that the petitioner, even before him, could not point out any basis for these entries. 15. Even otherwise, the findings that have been returned by the Deputy Director of Consolidation regarding overwriting and fraudulent interpolation in the revenue records, is findings of fact. There is no averment in the writ petition, assailing these findings nor it is the case of the petitioner that the order impugned suffers from any perversity. 16. In such view of the matter, the impugned order, in my considered opinion, warrants no interference and the writ petition is liable to be dismissed. 17. Before parting with the case, it appears relevant to advert to another aspect of the matter. It is admitted on record that a suit under Section 202 of the U.P.Z.A. & L.R. Act was instituted against the petitioner. This suit was dismissed on the finding that it was not proved on record that the land, wherefrom the petitioner was sought to be evicted, was land held as an Asami. It is admitted on record that a suit under Section 202 of the U.P.Z.A. & L.R. Act was instituted against the petitioner. This suit was dismissed on the finding that it was not proved on record that the land, wherefrom the petitioner was sought to be evicted, was land held as an Asami. This order of the Sub Divisional Magistrate is available on record of this writ petition and I have perused the same. This order, in my considered opinion is patently illegal. The petitioner in this writ petition has categorically admitted that he was recorded over the land in question under class 3. This necessarily means that he claims to be an Asami of the land in question. Similar findings have been returned by the Deputy Director of Consolidation in the impugned order. It is also the categorical case of the petitioner that he and Abdul Gafoor were joint tenure holders and both were recorded under class 3. It necessarily follows that even the respondent no. 4 in the writ petition who claims through Abdul Gafoor, is also an Asami. The Asami lease is said to be of the year 1966-67. 18. Rule 176A of the U.P. Zamindari Abolition and Land Reforms Rules states that an Asami lease cannot be for a period of more than five years. Therefore, the lease in favour of Abdul Gafoor, through whom the respondent no. 4 claims, has also expired long back. 19. Learned Standing Counsel is directed to remit a copy of this order to the Collector, Rampur to ensure that proper proceedings are initiated, as regards the land in question in this writ petition, which is in the possession of an Asami and the term of his Asami lease has, prima facie, expired. 20. In view of the above, writ petition no. 7235 of 2012 is dismissed. 21. The writ petition no. 30161 of 2015 is disposed of in terms of the directions/observations made herein above. Petitions Disposed of.