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2016 DIGILAW 2964 (ALL)

Kamlawati v. State of U. P.

2016-08-29

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. Supplementary affidavit filed today is taken on record. Heard Sri K.N. Mishra for the petitioners. The writ petition has been filed against the order of Board of Revenue, U.P. at Lucknow dated 31.5.2016 allowing the revision and confirming the order of mutation dated 17.11.1999 passed in the proceeding under Section 34 of U.P. Land Revenue Act, 1901(hereinafter referred to as "the Act"). Smt. Kiran Devi (respondent-3) filed an application under Section 34 of the Act for mutation of her name over plot nos. 776 and 777 of village Mahuadeeh, pargana Silhat, tehsil and district Deoria on the basis of registered sale deed dated 7.9.1999 executed by Jag Lal (petitioner-2) in her favour. The case was contested by the petitioners on the ground that respondent-3 did not belong to Scheduled Caste, while the petitioners belonged to Scheduled Caste and, therefore, sale deed was obtained after committing fraud and concealing the caste. Petitioner-2 is a man of unsound mind and taking advantage of his mental condition the sale deed was obtained after committing fraud. The matter was heard by Tehsildar, who by order dated 17.11.1999 found that the sale deed was obtained after permission of the Collector dated 31.3.1999. Petitioner-2 in his statement had stated that he did not receive full consideration, therefore, objection was filed by him but at that time full consideration was received by him. The execution of the sale deed has not been denied, therefore, Tehsildar by order dated 17.11.1999 directed for mutation of the name of respondent-3 over the land in dispute. Thereafter the petitioners filed an application for recalling the order dated 17.11.1999 on 6.8.2012. The recall application was heard by Tehsildar, who by order dated 29.12.2014 held that permission was granted on the condition that the land would be purchased by the transferor from sale consideration but no land was purchased as such condition in the permission has not been complied with. On this finding he recalled the order dated 17.11.1999 and restored the case to its original number. Respondent-3 filed a revision against the aforesaid order before Board of Revenue, U.P. Board of Revenue, U.P. by the impugned order had found that sale deed dated 7.9.1999 was challenged in civil suit by the petitioners and the suit has been dismissed. On this finding he recalled the order dated 17.11.1999 and restored the case to its original number. Respondent-3 filed a revision against the aforesaid order before Board of Revenue, U.P. Board of Revenue, U.P. by the impugned order had found that sale deed dated 7.9.1999 was challenged in civil suit by the petitioners and the suit has been dismissed. The sale deed was obtained after prior permission of the Collector, therefore, there was no reason for recalling the order dated 17.11.1999 although the order was passed after hearing both the parties. On this finding he allowed the revision and set aside the order dated 29.12.2014 and restored the order dated 17.11.1999. Hence this writ petition has been filed. I have considered the arguments of the counsel for the petitioners. Along with supplementary affidavit the order of civil court dated 8.12.1999 passed in O.S. no.2062 of 1999 (Jag Lal vs. Smt. Kiran Devi) has been filed as Annexure-SA-1. a perusal of the order dated 8.12.1999 shows that the petitioners were permitted to withdraw the suit without giving any liberty to file a fresh suit. Thus, suit was filed for cancellation of the sale deed dated 7.9.1999 and as no liberty was granted to the petitioners for filing a fresh suit, as such the sale deed cannot be challenged by the petitioners in view of Order XXIII, Rule 1(4), CPC. Board of Revenue as well as Naib Tehsildar has recorded a finding that prior to execution of the sale deed petitioner-2 has obtained permission of the Collector as required under Section 157A of U.P. Act No.1 of 1951 on 31.3.1999. The execution of the sale deed was also admitted by Jag Lal before Naib Tehsldar. The sale deed being a registered document and has been executed in accordance with law, the revenue court has no authority to ignore it. Therefore, order of mutation was rightly made by Naib Tehsildar. So far as the order of Tehsildar is concerned, the order was not an ex parte order, therefore, Tehsildar has no jurisdiction to recall the order dated 17.11.1999 as he had no jurisdiction to review his order. Otherwise also, the mutation order was passed on the basis of registered sale deed, which was executed in accordance with law. So far as the order of Tehsildar is concerned, the order was not an ex parte order, therefore, Tehsildar has no jurisdiction to recall the order dated 17.11.1999 as he had no jurisdiction to review his order. Otherwise also, the mutation order was passed on the basis of registered sale deed, which was executed in accordance with law. The reason given by Tehsildar in the impugned order that although permission was granted on the condition that the transferor will purchase other land from sale consideration but no land was purchased by him is concerned, it is the fault of transferor(petitioner-2) and he cannot take advantage of his fault. There is no finding that sale deed was obtained without sale consideration. In such circumstances, the impugned orders do not suffer from any illegality. The writ petition has no merit and it is dismissed.