Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 145 (ALL)

Meena Devi v. Board of Revenue U. P.

2018-01-12

SUNITA AGARWAL

body2018
JUDGMENT & ORDER : SUNITA AGARWAL, J. 1. Heard Sri Rahul Mishra learned counsel for the petitioner and Sri Shashi Nandan learned Senior Counsel assisted by Sri Punit Kumar Gupta learned counsel for the respondent no. 4. 2. With the consent of learned counsel for the parties the writ petition is being decided at the admission stage itself without calling for a counter affidavit. 3. By means of the present petition, the order dated 15. 11. 2017 passed by the Board of Revenue, Meerut and the order dated 09. 04. 2010 passed by the Additional Commissioner, Meerut Division, Meerut in revision filed by the respondent no. 4 against the order dated 02. 02. 2009 passed in appeal filed by the petitioner has been challenged. 4. It appears that the petitioner had filed a suit for specific performance of agreement executed by Smt. Rafiqan who was the original tenure holder of the land in question. 5. The said suit was decreed on 17. 05. 1996 in the appeal filed by Smt. Rafiqan, on 23. 04. 2008, on an application moved by the appellant namely the judgment debtor, issue no. 1 framed by the trial court was re-framed and four new issues namely issue nos 2-A to 5-A were framed and were remitted back to the trial court for recording fresh finding on those issues after taking evidence of the parties. The issues and amended issue no. 1 framed by the trial court was re-framed and four new issues namely issue nos 2-A to 5-A were framed and were remitted back to the trial court for recording fresh finding on those issues after taking evidence of the parties. The issues and amended issue no. 1 framed by the appellate court as noted above are as under:- 1- D;k Áfroknuh us fnukad 10-4-1980 dks oknh ds i{k esa foØ; lafonk fd;k rFkk 5144@& :i;s vfxze Hkqxrku ds :i esa ÁkIr fd;s tSlk fd okni= dh /kkjk&1 esa mfYyf[kr gS\ 2- D;k oknh foØ; lafonk dh 'krksZ ds vuqlkj vuqikyu djus ds fy, ges'kk rS;kj jgk gS rFkk vc Hkh gS ;fn gka rks bldk ÁHkko\ 3- D;k okn dky ckf/kr gS\ 4- D;k dfFkr foØ; vuqcU/k] Áfrokfnuh ij ck/;dkjh ugha gS ;fn gka rks bldk ÁHkko\ 5- oknh dk vuqrks"k D;k gS\ 6- D;k Áfrokfnuh ds ifr Jh vCnqy 'kdwj e`rd }kjk] fookfnr Hkwfe dk iathd`r fgcsukek fnukad 29-11-1971 ds vk/kkj ij] Áfrokfnuh dks fookfnr Hkwfe dk cSukek ;k eqgk;nk c; dk vf/kdkj ugha Fkk tSlk fd Áfrokn i= dh /kkjk&12 ,oa mldh mi/kkjkvksa esa dgk x;k gS ;fn gka rks bldk ÁHkko\ 7- D;k okn ds nks fHkUu&fHkUu dkj.k mRiUu gksus ds dkj.k] ,d gh okn ;ksftr djus ds dkj.k] ;g okn la/kkj.kh; ugha gS tSlk fd Áfrokni= esa dgk x;k gS] ;fn gka rks bldk ÁHkko\ 8- D;k Áfrokfnuh us 5000@& :i;s C;kt lfgr oknh dks okil dj fn, gSa tSlk fd Áfrokn i= esa mfYyf[kr gS] ;fn gka rks bldk ÁHkko\ la'kksf/kr okn fcUnq la[;k&1 ^^D;k Áfroknuh us fnukad 10-04-1980 ,oa fnukad 24-4-1981 dks Á'uxr lEifRr ds foØ; ds vuqcU/k i= oknh ds i{k esa fu"ikfnr djrs gq;s Øe'k% vfxze /kujkf'k ds :i esa vadu 5]144@& :i;s ,oa vadu 40]000@& :i;s fofHkUu frfFk;ksa ij ÁkIr fd;s] tSlk fd okni= esa vfHkdfFkr gS\** 6. It appears that in the meantime, Smt. Rafiqan, the judgment debtor died and the names of her heirs were recorded in the records of rights namely the revenue records. They had executed a sale deed in favour of the respondent no. 4 on the basis of which mutation proceedings were drawn by respondent no. 4. It appears that in the meantime, Smt. Rafiqan, the judgment debtor died and the names of her heirs were recorded in the records of rights namely the revenue records. They had executed a sale deed in favour of the respondent no. 4 on the basis of which mutation proceedings were drawn by respondent no. 4. In the said mutation proceeding, objections was taken by the petitioner that she was holding a decree of specific performance passed by the competent court whereby the judgment debtor namely Smt. Rafiqan was directed to execute sale deed in her favour. It was also contended by the petitioner therein that in an injunction suit filed by Smt. Rafiqan subsequent to passing of the decree dated 17. 05. 1996, the competent court had returned findings regarding possession of the petitioner over the land in question. 7. On a query made by the Court, learned counsel for the petitioner drew attention to the Court to the judgment and decree dated 17.05.1996 passed in the suit for specific performance namely Original suit no. 1279 of 1988. 8. A perusal of the said decree indicates that no issue was framed on the question of possession nor there is a finding regarding the possession having been delivered to the petitioner at the time of execution of the agreement to sell. There is no finding at all. The findings regarding possession of the petitioner has been recorded on the basis of the statement in the written statement of Smt. Rafiqan in the injunction suit namely Original suit no. 1279 of 1988. 9. Learned counsel for the petitioner submits that in view of the existence of the decree of specific performance dated 17. 05. 1996 and the fact that the petitioner had been put in possession over the land by the original tenure holder namely Smt. Rafiqan at the time of execution of the agreement and she having admitted possession of the petitioner, it was not open for the revenue authorities to reject the objection of the petitioner and to proceed to mutate the names of the purchaser of the heirs of Smt. Rafiqan namely respondent no. 4. 10. Submission is that in view of the existence of the decree, the sale deed dated 19. 07. 2007 is a void document. 11. This submission of learned counsel for the petitioner is rebutted by Sri Shashi Nandan learned counsel for the respondent no. 4. 10. Submission is that in view of the existence of the decree, the sale deed dated 19. 07. 2007 is a void document. 11. This submission of learned counsel for the petitioner is rebutted by Sri Shashi Nandan learned counsel for the respondent no. 4 with reference to the remittal order dated 23. 04. 2008 passed by the appellate court in the appeal which arises out of the original suit no. 1279 of 1988. 12. Having gone through the records and the findings returned by the appellate court in the appeal filed against the decree of specific performance, this Court is of the view that once the issue regarding payment of consideration to the judgment debtor and readiness and willingness of the decree holder have been remitted by the appellate court for recording fresh findings thereon after allowing the parties to lead their evidence, it cannot be said that the judgment and decree dated 17. 05. 1996 would still be operative against Smt. Rafiqan. The validity of the judgment and order dated 17. 05. 1996 would be subject to the result of the appeal after the findings are returned by the trial court on the issues framed by the first appellate court. There cannot be a dispute to the fact that the first appeal is continuation of the trial and the directions given by the first appellate court to the trial court to allow the parties to lead evidence and return fresh findings on the issues framed by it lead to the conclusion that the decree of specific performance of agreement as on date cannot be said to be operative. 13. Even otherwise, in so far as the findings regarding possession is concerned, the same is also subject matter of the pending proceeding before the appellate court. The appellate court would be required to look to the nature of possession of the petitioner over the land in question. 14. Even otherwise, the decree of specific performance of agreement is only a preliminary decree and unless and until a sale deed is executed in furtherance of the said decree, the petitioner cannot raise any objection regarding the mutation of name of tenure holders over the same. 15. The name of the heirs of the original tenure holder had already been recorded. In the proceedings in question, the name of the purchasers of the recorded tenure holder has been mutated. 15. The name of the heirs of the original tenure holder had already been recorded. In the proceedings in question, the name of the purchasers of the recorded tenure holder has been mutated. At no point of time, occasion arises for the mutation court to consider the objections of the petitioner as she is not having any right to get her name mutated as on date. The rights of the petitioner to get his name mutated would arises only in an eventuality when a sale deed is executed in furtherance of the decree of specific performance. 16. It is submitted by the learned counsel for petitioner that the remittal order dated 23. 04. 2008 relate to only one agreement out of the two agreements which were the basis of the decree of specific performance of agreement passed by the trial court. 17. In so far as the mutation of the purchaser namely respondent no. 4 is concerned, the principle of section 52 of Transfer of Property Act, 1882 would come into play. Any subsequent transfer would always abide by the final decision in the pending appeal in the matter of specific performance of agreement. 18. For all the above noted reasons, the finding returned by the revisional authority namely the Commissioner and the Board of Revenue cannot be said to be perverse. 19. The writ petition is found devoid of merits and hence dismissed. 20. It goes without saying that this Court has not entered into the merits of the case of the parties in so far as the merits of the decree of specific performance is concerned, any observations made herein above would not come in the way of the parties in the pending proceeding.