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2016 DIGILAW 3824 (ALL)

Ram Gopal v. Board of Revenue Thru Chairman Lko

2016-11-28

ANIL KUMAR

body2016
JUDGMENT Anil Kumar, J. – Heard Shri Mahesh Prasad Rao, learned counsel for the petitioners, Shri M. E. Khan, learned Standing Counsel, Shri Mohd. Arif Khan, learned Senior Advocate assisted by Shri Mouiddin Khan, learned counsel for the respondents. 2. Facts in brief of the present case are that the controversy involved in the present case relates to suit-land i.e. plot no.1842 area 0.260 hect. Situated in village-Barabanki (Urban) (N.Z.A.) Pergana and Tehsil-Nawabganj, District-Barabanki, which lies in Patti Khata Khewat No.2 (Haqiyat Mutfarika Rafiuddin) of Mohal Asgar Ali. Abdul Bari (father of opposite party no.4 Ahmadul Bari) was the Zamindar of the suit-land to the extent of ½ share and after the death of Abdul Bari, opposite party no.4 became Zamindar of the suitland to the extent of ½ share. 3. Opposite party no.4/Ahmadul Bari filed an application under Section 33/39 of Land Revenue Act, 1901 (hereinafter referred to as Act) registered as Case No.01/09-10 before the opposite party no.3/Sub-Divisional Officer, Nawabganj, District-Barabanki for expunging the name of the petitioner from the revenue record. 4. By order dated 26.02.2010, opposite party no.3 has rejected the said application, challenged by the opposite party no.4 by filing Revision No.940/1449 before the opposite party no.2/Additional Commissioner (Judicial), Faizabad Division, Faizabad. 5. Revisional Authority has allowed the same by order dated 02.01.2014 on the ground that urban area pertaining to areas where zamindari has not been abolished (NZA), the khetauni is prepared every year. It is further stated that in the Khetauni of 1411 Fasli the name of the petitioners do not find place as Hereditary tenant, if the alleged entries in the name of the petitioners in the Khetauni of 1412 Fasli were genuine entries, then the names of the petitioners ought to have find place in the Khetauni of 1411 Fasli but the records are otherwise. It is further observed by the revisional authority that for the first time the petitioners got recorded their names fraudulently with the connivance of erstwhile Lekhpal in Khetauni of 1412 Fasli over Khata No.31 showing themselves to be hereditary tenants of Ziman (4 Sa) with the period of tenancy of 36 years without any basis. 6. It is further observed by the revisional authority that for the first time the petitioners got recorded their names fraudulently with the connivance of erstwhile Lekhpal in Khetauni of 1412 Fasli over Khata No.31 showing themselves to be hereditary tenants of Ziman (4 Sa) with the period of tenancy of 36 years without any basis. 6. Revisional authority, in the order dated 02.01.2014, held that petitioners have failed to prove by way of any cogent evidence that term of their hereditary tenancy is 26 years, whereas, on the material on record, it is clearly established that for the first time, their names came in the Khetauni of 1412 Fasli year whereas the said names do not find place in the Khetauni of Fali year 1411. Further finding given by opposite party no.2 that as per stand taken by the petitioners, land in question has been obtained by grandmother of the petitioners and her name was recorded in the Khetauni pertaining to Fasli Year 1363 with the period of cultivation of 23 years, although the petitioners have not been able to substantiate their stand by adducing and documentary evidence. 7. Order dated 02.01.2014 passed by opposite party no.2 was challenged by the petitioners by filing revision No.943/13-14 Barabanki, under Section 219 of L. R. Act before the opposite party no.1/Board of Revenue, U.P., Lucknow. By order dated 29.01.2016, opposite party no.1 had affirmed the findings given by the opposite party no.2 and held that the land in question is a Non Zamindari Land and the petitioners have not been able to prove that the land belongs to his ancestral and for the first time, name of the petitioners came in the Khetauni pertaining to Fasli Year 1412 whereas in the Fasli Year 1411, name of the petitioners was not recorded in the revenue record. 8. Learned counsel for the petitioners while challenging the impugned order submits that opposite party nos.1 and 2 while passing the impugned order, had failed to take into consideration that land in question was recorded in the name of grandmother of the petitioner in the khetauni pertaining to the Fasli Year 1331. Therefore, taking into consideration the said facts, long standing entries recorded in the name of the petitioners cannot expunged in the summary proceedings under Section 33/39 of the Act. 9. Therefore, taking into consideration the said facts, long standing entries recorded in the name of the petitioners cannot expunged in the summary proceedings under Section 33/39 of the Act. 9. It is further submitted by learned counsel for the petitioner that in view of the provisions as provided under Section 19 of U. P. Z. A. & L. R. Act, it was rightly held by Sub-Divisional Officer, Nawabganj, District-Barabanki by order dated 26.02.2010 that application under Section 33/39 of Land Revenue Act moved by the opposite party no.4 is not maintainable. 10. It is further submitted on behalf of the petitioner that opposite party no.4, by way of cogent evidence, has not been able to prove that the land in question is a Zamindari Land and it lies within the purview of urban area, therefore, opposite party nos.1 and 2 have got no jurisdiction to pass the impugned orders as it is settled proposition of law that intricate question of title cannot be decided in summary proceeding under Section 33/39 of the Act. 11. Lastly, it is submitted that the principle underlying the section is an accordance with para-17 of Boards circular judicial Ex-668-B, dated 10th January 1938 the Board would also point out that changes are to be recorded in accordance with the rules which are to be found in (a) chapter (XXII) of the revenue manual and (a) the land record manual make it the primary duty of the Lekhpal and Kannongo to record such changes in the Khatauni, when the Lekhpal and Kannongo cannot make any entry owing to a dispute then only must the case be referred to the Tehsildar for enquiry and for final decision by the Sub Divisional Officer, if a wrong entry be made, the party aggrieved may apply for correction under paragraphs- 199 of the revenue court manual, the criterion for deciding whether the application for correction should be accepted or whether the applicants should be filed a suit, is the period within which the application is made since the change gives rise to the application. 12. In support of his arguments, he has placed reliance on the judgment given by this Court in Writ Petition No.3172 (MS) of 2010 decided on 28.05.2015, Civil Misc. Writ Petition No.15760 of 2003 decided on 29.08.2011, Writ Petition No.1904 (MS) of 2011 decided on 21.08.2015 and Civil Misc. 12. In support of his arguments, he has placed reliance on the judgment given by this Court in Writ Petition No.3172 (MS) of 2010 decided on 28.05.2015, Civil Misc. Writ Petition No.15760 of 2003 decided on 29.08.2011, Writ Petition No.1904 (MS) of 2011 decided on 21.08.2015 and Civil Misc. Writ Petition No.597 of 2006 decided on 31.05.2011. 13. Accordingly, it is submitted by learned counsel for the petitioners that the impugned orders dated 29.01.2016 and 02.01.2014 passed by opposite party nos.1 and 2 respectively are contrary to law and are liable to set aside. 14. Shri Mohd. Arif Khan, learned Senior Advocate while supporting the impugned orders submits that from the perusal of the material on record, the position which emerges out is that for the first time, petitioners got recorded their names fraudulently with the connivance of erstwhile Lekhpal in Khetauni of 1412 Fasli over Khata No.31 showing themselves to be hereditary tenants of Ziman (4 Sa) with the period of tenancy of 36 years without any basis. 15. Shri Mohd. Arif Khan, learned Senior Advocate further submits that the stand taken by the petitioners that the name of the petitioners was recorded in the Khetauni pertaining to Fasli Year 1412 showing the period of cultivation as 36 years. If the name of the petitioner's grandmother was recorded in the Khetauni pertaining to Fasli Year 1363 with the period of cultivation as 23 years, then in the Khetauni pertaining to Fasli Year 1412, the period of cultivation ought to be mentioned 72 years but in the Khetauni of 1412 Fasli Year, the period of cultivation is mentioned as 36 years, which falsifies the stand taken by the petitioners. 16. In support of his argument, he has placed reliance on the judgment given by Hon'ble the Apex Court in the case of Vikram Singh Junior High School v. District Magistrate (Fin. & Rev.) and others (2002) 9 SCC 509 , wherein it has been held as under : - "The matter may also be examined from another angle. The appellant was neither a bhumidhar sirdar nor asami of the land in dispute. The alleged resolution dated 25.8.1973 had no legal sanctity in the absence of an approval of the assistant collector, first class, in charge of the sub-division and, therefore, the resolution did not convey any title, whatsoever, in favour of the appellant. The appellant was neither a bhumidhar sirdar nor asami of the land in dispute. The alleged resolution dated 25.8.1973 had no legal sanctity in the absence of an approval of the assistant collector, first class, in charge of the sub-division and, therefore, the resolution did not convey any title, whatsoever, in favour of the appellant. The entry in the revenue record must have a legal basis. Further there was no adjudication of dispute as regard continuance of the wrong entry. The appellant could not have claimed any title over the land in dispute merely on the basis of wrong entry which continued in its favour through negligence or failure of the revenue officer or the consolidation officer to correct the record, in pursuance of the order of the board of revenue which had attained finality. In the consolidation proceedings, the collector is also the district deputy director of consolidation under the U.P. Consolidation of Holding Act and is authorised to correct any wrong entry continued in the consolidation record in that capacity in the exercise of power under Section of the U.P. Consolidation of Holdings Act. Merely because a wrong provision was quoted by the collector for exercising his power while deleting the name of the appellant from the revenue record would not invalidate the order if it is shown that such an order could be passed under other provisions of the Act viz. under Section of the U.P. Consolidation of Holdings Act. In that view of the matter, we do not find any infirmity in the order passed by the collector." 17. I have heard learned counsel for the parties and gone through the records. 18. Undisputed facts of the present case are that opposite party no.4/Ahmadul Bari moved application under Section 33/39 of the Act, rejected by the opposite party no.3/Sub-Divisional Officer, Nawabganj, District-Barabanki against which opposite party no.4 filed a revision, allowed by order dated 02.01.2014 passed by opposite party no.2/Additional Commissioner (Judicial), Faizabad. The same was challenged by the petitioners by filing revision under Section 219 of L. R. Act, which was dismissed. 19. The same was challenged by the petitioners by filing revision under Section 219 of L. R. Act, which was dismissed. 19. The sole basis of the petitioners is to the effect that land in question was recorded in the name of the grandmother of the petitioners in the Khetauni pertaining to Fasli Year 1363 in the revenue record with the period of cultivation of 23 years, so keeping in view the above said facts, petitioners have succeeded by way of succession in the land in question, which is a correct argument in view of the material on record as well as finding given by the opposite party nos.1 and 2 while passing the impugned order because in the present case, it is clearly established that without any basis, the period of cultivation has been mentioned in the Khetauni pertaining to Fasli Year 1412 as 36 years, which falsifies the stand taken by the petitioners. If the period of cultivation in the year 1963 Fasli as alleged by the petitioners was 23 years, then in the Khetauni pertaining to Fasli Year 1412, the period of cultivation ought to be mentioned 72 years not 36 years. 20. So far as the stand taken by the petitioners that grandmother of the petitioners is hereditary tenant, is not in accordance with the Section 29 of U. P. Tenancy Act, 1939, which is quoted herein below : - "Hereditary Tenants - Every person belonging to one or another of the following classes shall be a hereditary tenant, and subject to any contract which is not contrary to the provisions of Section 4, shall be entitled to all the rights conferred, and be subject to all the liabilities imposed on hereditary tenants by this Act, namely, - "(a) every person who is at the commencement of this Act, a tenant of land otherwise than a permanent tenure-holder, a fixed-rate tenant, a tenant holding on special terms in Oudh, an ex-proprietary tenant, an occupancy tenant, or except as otherwise provided in this Act, as a sub-tenant as a tenant or a tenant of sir ; (b) every person who is, after the commencement of this act admitted as a tenant, otherwise than as a tenant of sir or as a sub-tenant ; (c) every person, who in accordance with the provisions of this Act, acquires hereditary rights. (Explanation : For the purposes of this section, 'sub-tenant' does not include a person who holds land from a relation, dependant or servant of the land-holder, unless such relation, dependant or servant droves to the satisfaction of the court that he is genuine tenant of such land has not been admitted to prevent the accrual of hereditary rights in favour of such persons.)" 21. From the perusal of the above said facts, it is established that the petitioners have not been able to substantiate their stand that they are the hereditary tenants of the suit-land as they have not been able to establish their origin by any revenue records. They also failed to establish that when their alleged Nani or themselves were admitted by the erstwhile Zamindar as hereditary tenant of the suit-land and they failed to produced any Lease Deed or Agreement of Tenancy. 22. So far as the argument advanced by learned counsel for the petitioners, that long standing entries recorded in the revenue record cannot be expunged in a proceeding under Section 33/39 of the Act and intricate question of title cannot be decided in a summary proceeding under Section 33/39 of the Act, has got no force because from the perusal of the record, it is clearly borne out that in the Khetauni pertaining to Fasli Year 1411, the name of the petitioners do not find place as Hereditary tenant and for the first time, their names find place in the Khetauni of 1412 Fasli which are not genuine entries because of the names of the petitioners do not find place in the Khetauni of 1411 Fasli, then in what circumstances, their names came in the Khetauni of 1412 Fasli. 23. Moreover, from the record, it is also established that for the first time, the petitioners have got recorded their names fraudulently with the connivance of erstwhile Lekhpal in Khetauni of 1412 Fasli over Khata No.31 showing themselves to be hereditary tenants of Ziman (4 Sa) with the period of tenancy of 36 years without any basis. 24. Accordingly, the case of the petitioners, that long standing entries cannot be expunged in a proceeding under Section 33/39 of the Act and intricate question of title cannot be decided in a summary proceeding under Section 33/39 of the Act, does not support with the material on record. 24. Accordingly, the case of the petitioners, that long standing entries cannot be expunged in a proceeding under Section 33/39 of the Act and intricate question of title cannot be decided in a summary proceeding under Section 33/39 of the Act, does not support with the material on record. Further the judgments, which are cited on behalf of the petitioners in support of the arguments of learned counsel for the petitioners that long standing entries cannot be expunged in a proceeding under Section 33/39 of L. R. Act, will not applicable in the facts of the present case as there is no long standing entries recorded in the revenue record in the name of the petitioners. 25. For the foregoing reasons, I don't find any illegality or infirmity in the impugned order under challenge in the present writ petition. So the present writ petition is liable to be dismissed. 26. In the result, the writ petition lacks merit and is dismissed. Petition Dismissed.