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2016 DIGILAW 2731 (ALL)

Lalmuni Devi v. Collector Azamgarh

2016-08-08

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. – Heard Sri S.C. Verma for the petitioner and Sri Rakesh Pandey , Senior Advocate assisted by Sri Ghanshyam Rai for the contesting respondents. 2. The writ petition has been filed against the order of Collector dated 14.5.2012 passed in the proceeding under Section 33/39 of UP Land Revenue Act, 1901 (hereinafter referred to as the 'Act'). 3. By the impugned order it has been found that during life time of Udairaj, names of the petitioners have been recorded in the revenue records on the basis of alleged order of Sub Divisional Officer dated 11.7.1986 passed in Suit No. 784 under Section 229 B of UP Act No. 1 of 1951. But the registration of the aforesaid suit in the misalband Register was not found to be proved, therefore, it has been held that entry made in favour of the petitioners is a forged entry. This finding could not be challenged by the petitioners. The petitioners further could not give any satisfactory answer that as to how the name of daughter can be recorded during life time of father in the absence there being any transfer or gift deed. Thus the entry is totally baseless and it has been rightly set aside by the Collector in exercise of powers under Section 33/39 of the Act. 4. The argument of the counsel for the petitioners that respondents have filed an application for recall of the order of Sub Divisional Officer dated 11.7.1986 and that application was dismissed. Thereafter they had challenged the order of dismissal in appeal. Therefore it cannot be said that no case was registered. In case there has been no case, then no restoration application could be filed. The argument of the counsel for the respondents in this respect is misconceived. The entry created a cloud against the right of the respondents. Therefore they were bound to challenge the order. But merely challenging the order does not legalise the forged and fabricated entry under the law. 5. The counsel for the petitioner argued that village had already been notified under Section 4(2) under UP Consolidation of Holdings Act, 1953. Therefore the Collector has no jurisdiction to proceed with the case and all the matters relating to correction of record ought to have been abated under Section 5(2) of UP Consolidation of Holdings Act, 1953. 5. The counsel for the petitioner argued that village had already been notified under Section 4(2) under UP Consolidation of Holdings Act, 1953. Therefore the Collector has no jurisdiction to proceed with the case and all the matters relating to correction of record ought to have been abated under Section 5(2) of UP Consolidation of Holdings Act, 1953. But the Collector in spite of noticing the notification under Section 4(2), has passed the impugned order. 6. Section 5(2)(a) of UP Consolidation of Holdings Act, 1953 provides as follows : - "Section 5(2)(a) : Every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated." A bare reading of the aforesaid provision shows that there is no automatic abatement under the provisions of Section 5(2)(a) of U.P. Consolidation of Holdings Act, 1953. It is only on the order passed, the proceeding will abate. Otherwise the order is valid as held by this Court in Triveni v. State of U.P. and others, 1968, ALJ 570 (D.B.) and Jangi Lal v. Deputy Director of Consolidation and others, 2007 (103) RD, 426. 7. The counsel for the petitioner further argued that at present Udairaj had died and the petitioner-1 is admittedly daughter of Udairaj as such she is one of the heir of Udairaj as such her name is not liable to be demolished. So far as death of Udairaj is concerned, it was occurred subsequent to the date of entry. The cause of action claiming heirship of Udairaj arose to the petitioners subsequent to the entry which has been found to be proved. The petitioners have liberty to establish their right before the appropriate forum. 8. No interference is required by this Court. Writ petition has no merit. It is dismissed. Petition Dismissed.