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2016 DIGILAW 4001 (ALL)

Dinesh Kumar v. Board of Revenue

2016-12-13

MANOJ KUMAR GUPTA

body2016
JUDGMENT Manoj Kumar Gupta, J. – Heard counsel for the petitioners, learned standing counsel for respondents no.1 & 2 and Sri Satya Prakash Pandey for respondent no.3. 2. By means of this writ petition, the petitioners have challenged the order dated 30.1.2012 passed by Board of Revenue in Revision No.1013/LR/2006-07 as well as the order dated 8.1.2007 passed in Mutation Case No.783/354 of 2006. 3. Indisputably, the disputed property belongs to one Munna who is son of Satanand. The petitioners claiming that Munna had died, got their names mutated in place of Munna. After lapse of considerable time, the third respondent filed an application before the Sub Divisional Officer claiming that the name of the petitioners had been mutated on the basis of forged and manipulated proceedings, inasmuch as he is the person to whom the property belonged and he is still alive. On such application being filed by the third respondent, the Sub Divisional Officer in purported exercise of power under Sections 33 and 34 of the U.P. Land Revenue Act, 1901, by order dated 22.10.1997, allowed the application filed by the third respondent and directed for name of Munna @ Pitamber S/o of Satanand to be entered in the revenue records. The name of the petitioners was directed to be expunged. Aggrieved by the said order, the petitioners filed a revision before the Board of Revenue. The Board of Revenue, by order dated 21.4.2004, has set aside the order dated 22.10.1997, passed by the Sub Divisional Officer and has remitted the matter to the Tehsildar for passing a fresh order after affording opportunity to the parties to lead evidence. In pursuance of the remand order, the parties led evidence, both documentary and oral, before the Tehsildar. The Tehsildar framed four issues and recorded a specific finding that the third respondent is not the same person as Munna to whom the property belonged. It has been held that the third respondent is the son of Satanand, whose father's name was Gaya Prasad, whereas Satanand, father of Munna, to whom the property belonged, was the son of one Bhagwandeen. The other finding recorded by the Tehsildar which is against the petitioners is that they failed to prove that Munna, to whom the property belonged, had in fact died. Consequently, the Tehsildar formed the opinion that in the revenue records, the name of Munna S/o Satanand should continue. 4. The other finding recorded by the Tehsildar which is against the petitioners is that they failed to prove that Munna, to whom the property belonged, had in fact died. Consequently, the Tehsildar formed the opinion that in the revenue records, the name of Munna S/o Satanand should continue. 4. Aggrieved by the said order dated 8.1.2007, the petitioners filed a revision before the Board of Revenue. However, the third respondent did not file any revision, though the order of the Tehsildar was also against him. The revision filed by the petitioners has been dismissed by the Board of Revenue by impugned order dated 30.1.2012. Aggrieved thereby, the instant writ petition has been filed. 5. Counsel for the petitioners submitted that since Munna died long back and thereafter, their name was mutated in the revenue records in the year 1980 itself and there was no challenge to the same until 1995 when an application was filed for the first time by the third respondent claiming that he is the same person to whom the property belonged, there was no occasion for the petitioners to have led evidence to prove that Munna had in fact died. It is further submitted that the application filed by the third respondent, several years after the name of the petitioners was mutated, was itself not maintainable. He further submitted that a notice under Section 80 CPC was given by the third respondent for filing a suit, but no suit was filed before the civil court. However, a suit was filed under Section 229-B of U.P.Z.A. & L.R. Act, 1950, but later on, it was got dismissed as withdrawn. It is urged that in such circumstances, the claim set up by the third respondent was not sustainable in law. 6. On the other hand, learned counsel for the third respondent submitted that the petitioners succeeded in getting their names mutated fraudulently. There is no Will in existence and the alleged Will set up by the petitioners is a forged document. 7. I have considered the submissions made by learned counsel for the parties and perused the record. 8. The Tehsildar, while passing the impugned order dated 8.1.2007, has entered a specific finding that the petitioners could not prove that the recorded tenure holder Munna had in fact died. 7. I have considered the submissions made by learned counsel for the parties and perused the record. 8. The Tehsildar, while passing the impugned order dated 8.1.2007, has entered a specific finding that the petitioners could not prove that the recorded tenure holder Munna had in fact died. The petitioners, who claim mutation of their names on the basis of testamentary succession, were under obligation to prove that the testator had in fact died. However, in the absence of any evidence having been led in that regard, the Tehsildar rightly held that the petitioners were not entitled to mutation of their names in place of the recorded tenure holder. 9. By means of a supplementary affidavit, the petitioners have sought to bring on record a certificate issued by the Pradhan of the village relating to the death of the recorded tenure holder on 23.8.1980. Concededly, the said certificate was not before the Tehsildar nor in revision before the Board of Revenue. The correctness and authenticity of the said certificate is thus not established. This Court, therefore, declines to rely on the said certificate filed before it for the first time. Further, in order to establish their claim, the petitioners will also have to prove the alleged Will. In such view of the matter, this Court does not find any illegality in the finding recorded by the Tehsildar holding that the petitioners were not entitled to mutation of their names in place of the recorded tenure holder. 10. The Tehsildar in its order dated 8.1.2007 has also entered a specific finding that the third respondent is not the same person as Munna, the recorded tenure holder, as the name of the grand father of both the persons are different. A specific finding has been recorded that name of grand father of Munna, recorded tenure holder was Bhagwandeen, whereas the name of grand father of the third respondent is Gaya Prasad. The said finding recorded against the third respondent was not subjected to challenge by him by filing any revision. Thus, the finding returned against him in the order by the Tehsildar has attained finality. Consequently, it is not open to the third respondent to contend in the instant writ petition that his name has been wrongly expunged. 11. The said finding recorded against the third respondent was not subjected to challenge by him by filing any revision. Thus, the finding returned against him in the order by the Tehsildar has attained finality. Consequently, it is not open to the third respondent to contend in the instant writ petition that his name has been wrongly expunged. 11. Proceedings under Sections 33, 34 and 39 of the U.P. Land Revenue Act are summary in nature and are subject to the adjudication made on the regular side. In case, the parties feel aggrieved by the orders passed by the Tehsildar, it is always open to them to get their rights declared in the regular proceedings. 12. In such view of the matter, this Court declines to interfere with the impugned orders. The writ petition lacks merit and is dismissed. Petition Dismissed.