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2017 DIGILAW 2832 (ALL)

Pradeep Kumar Jaiswal v. State of Uttar Pradesh

2017-12-05

MANOJ MISRA

body2017
JUDGMENT : Manoj Misra, J. Heard learned counsel for the petitioners; the learned Standing Counsel for the respondents 1 to 4; Sri Kshitij Shailendra for the respondents 5 and 6; and perused the record. 2. The present petition challenges an order dated 04.07.2017 passed by the Board of Revenue in Revision No. 69/2017 and 2548/14-15/L.R./2016, under Section 219 of the Land Revenue Act. In addition to above, the petitioners have also challenged the order dated 25.04.1992 passed in Case Nos. 12419 and 10768 under Section 54(6) of the U.P. Land Revenue Act (in short the L.R. Act). 3. It appears that the petitioners had set up a claim on the basis of a sale deed dated 08.12.1964 executed by Ram Lakhan and others in favour of the predecessor-in-interest of the petitioner, namely, Uma Shanker. 4. The case of the petitioners is that the sale-deed was acted upon and Uma Shanker entered into possession of the disputed plot but erroneously the name of Uma Shanker was recorded in class 9 and not in the column of the tenure-holder and, therefore, in the survey operations, an objection was taken, under Section 54 of the L.R. Act, for correcting the entry. It is the case of the petitioners that the Assistant Record Officer erroneously rejected the application by order dated 25.04.1992 against which an appeal was preferred which was allowed by the Record Officer by his order dated 30.10.2013. 5. It has been submitted that in the meantime, another set of proceeding, under Section 34 of the L.R. Act, was initiated pursuant to subsequent sale deeds executed by the recorded tenure-holders and in reference to those proceedings, certain orders were passed and therefore revisions were filed before the Board of Revenue under Section 219 of the L.R. Act. It has been submitted that the Board of Revenue by the impugned order dated 04.07.2017 has erroneously set aside the order passed by the Record Officer in favour of the petitioners without testing the validity of the claim of the petitioners on the basis of the sale-deed dated 08.12.1964. 6. It has been submitted that the Board of Revenue by the impugned order dated 04.07.2017 has erroneously set aside the order passed by the Record Officer in favour of the petitioners without testing the validity of the claim of the petitioners on the basis of the sale-deed dated 08.12.1964. 6. It has also been submitted that the other side claims under a sale-deed executed by the transferee of Ram Lakhan and others and the sale-deed executed in favour of the predecessor-in-interest of such transferees, was after the execution of the sale-deed in favour of the predecessor-in-interest of the petitioners, and therefore the sale-deed executed in favour of the predecessor-in-interest of the petitioners ought to have been accorded precedence over the subsequent sale-deed. It has also been submitted that there were few claims set up by transferees lis pendence, which could not have taken precedence over the claim made by the petitioners. 7. Sri Kshitij Shailendra, who appears on behalf of contesting respondents, has submitted that admittedly the name of the predecessor-in interest of the petitioners was not entered in the column of the tenure-holder for more than 30 years and, therefore, such claim could not have been entertained in summary proceeding under Section 54 of the L.R. Act and since sub-section (8) of section 54 of the L.R. Act specifically provides that any order passed in these proceedings shall be subject to the result of any suit which the aggrieved person may file, this is not a fit case where this Court should enter into complex questions of fact concerning title in these writ proceedings particularly when the petitioners have adequate alternative remedy of getting a declaration as well as appropriate relief in a suit instituted under the provisions of the U.P.Z.A.& L.R. Act or the corresponding provisions of the U.P. Land Revenue Code, 2006. It is thus the case of the contesting respondents that this petition should be dismissed on ground of alternative remedy. 8. I have given thoughtful consideration to the submissions of the learned counsel for the parties. 9. It is thus the case of the contesting respondents that this petition should be dismissed on ground of alternative remedy. 8. I have given thoughtful consideration to the submissions of the learned counsel for the parties. 9. Once it is not in dispute that the entries were not promptly made pursuant to the sale-deed dated 08.12.1964 in the revenue record and the earlier entry continued over a period of few decades, even after the alleged sale-deed, the appropriate course for the petitioners would be to seek for a declaration in a suit instituted under the provisions of the U.P.Z.A.& L.R. Act or the corresponding provisions of the U.P. Revenue Code, 2006 than to take aid of summary proceeding under Section 54 of the L.R. Act. It would be apposite to refer to the provisions of Section 40-A of the L.R. Act, which provides that no order passed under sections 33, 35, 39, 40, 41 and 54 shall bar any suit in a competent Court for relief on the basis of a right in a holding. Similar is the intent of sub-section (8) of section 54 of the L.R. Act. 10. Under the circumstances, without expressing any opinion on the merits of the claim of the parties, this Court considers it appropriate to dispose of this petition with liberty to the petitioners to take recourse to appropriate legal remedy of instituting a suit on the basis of their rights in the holding, as may be advised. 11. With the aforesaid liberty, the petition stands disposed of.