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2018 DIGILAW 6 (ALL)

Phagoo v. State of U. P.

2018-01-02

SANGEETA CHANDRA

body2018
JUDGMENT & ORDER : SANGEETA CHANDRA, J. 1. This writ petition has been filed against the orders dated 17.8.2009 and 3.10.2009 passed by Naib Tehsildar, Bansgaon and the order dated 23.4.2010 passed by Assistant Collector, Bansgaon (Annexure Nos. 4, 5 & 7 to the writ petition). 2. It is the case of the petitioner as argued by his counsel that the petitioner is a deaf and dumb person, but not a person of unsound mind and therefore property that belonged to him could not have been sold by respondent no. 3 his mother Smt. Shyam Rathi who executed a sale deed alleging herself to be guardian of the petitioner, on 28.5.2007 in favour of one Smt. Durgawati wife of Lal Bachan arrayed as respondent no. 8 to this writ petition. 3. Smt. Durgawati moved two applications for mutation in respect of Arazi no. 319 and Arazi no. 89 before the Tahsildar Gola under Section 34 of the U.P. Land Revenue Act. Notices were issued and the petitioner filed his objection. The case was at the stage of evidence when Smt. Durgawati did not turn up for prosecuting the matter further and as such Tahsildar, Gola dismissed the two applications for mutation under Section 34 on 16.7.2007. The said two Application Nos. 1311/2025 of 2007 and 1311-B/2026 of 2007 were dismissed on 16.7.2007 by two separate orders. Instead of filing restoration applications for recall of the order dated 16.7.2007, Smt. Durgawati filed two fresh applications under Section 34 of the U.P. Land Revenue Act on 2.3.2009. These applications were numbered as Application No. 964/448 of 2009 and Application No. 965/449 of 2009. Notices were not issued by the Naib Tahsildar, Gola for filling objections to the recorded tenure holder i.e. the petitioner herein, but notices were issued to respondent no. 7 Smt. Shyam Rathi, the alleged vendor, who was in collusion with the respondent no.8. 4. A transfer application was also moved by respondent no. 8. Again no notices were issued to the petitioner, but only to Smt. Shyam Rathi, who appeared before the Collector and consented for transferring the case from Tahsildar Gola to Tahsildar Bansgaon. The Collector on the basis of consent by Smt. Shyam Rathi, who was not the actual owner of the property in question transferred the case on 17.8.2009 to Tahsil Bansgaon. 5. The Collector on the basis of consent by Smt. Shyam Rathi, who was not the actual owner of the property in question transferred the case on 17.8.2009 to Tahsil Bansgaon. 5. It has been argued that since the petitioner was never issued any notice, the orders impugned have been passed behind his back. The Naib Tahsildar on the basis of sale deed dated 28.5.2007 alleged to have been executed by Smt. Shyam Rathi for Smt. Durgawati allowed the subsequent mutation applications. On the basis of orders impugned attempt was made by the respondents to dispossess the petitioner, and therefore, the petitioner moved a restoration application, and Tahsildar Bansgaon stayed his order dated 13.10.2009 by his order dated 12.3.2010. Against the order passed by Tahsildar, Bansgaon dated 12.3.2010, the contesting respondent no. 8 preferred an Appeal before the Assistant Collector and the Assistant Collector stayed the order dated 12.3.2010, the proceedings are still pending before the Assistant Collector, Bansgaon. 6. It has been argued by learned counsel for the petitioner that the petitioner is living with the family of his father i.e. Bhoolai and is being looked after by the family members of his father, and the petitioner's mother Smt. Shyam Rathi remarried one Haridwar 35 years ago and has never looked after the petitioner for a past 35 years. The petitioner was major, and not a person of unsound mind, but he was only handicapped, as he was hearing and speech impaired. Such a person cannot be said to be incompetent person to look after his own property and his mother Smt. Shyam Rathi could not therefore have been considered to be his guardian, entitled to have executed a sale deed of his property to another person without his consent. There is no signature of the petitioner on the sale deed. 7. Learned counsel for the petitioner has also argued that the subsequent mutation applications under Section 34 of the U.P. Land Revenue Act were not maintainable when the first two application nos. 1311/2025 and 1311-B/2026 of 2007 had already been dismissed for want of prosecution. The mutation applications were entertained without jurisdiction and the orders passed therein were behind the back of the petitioner without issuing any notice to him. It is not disputed that the petitioner is the owner of the property and was its recorded tenure holder. 8. Learned counsel for the respondent no. The mutation applications were entertained without jurisdiction and the orders passed therein were behind the back of the petitioner without issuing any notice to him. It is not disputed that the petitioner is the owner of the property and was its recorded tenure holder. 8. Learned counsel for the respondent no. 8 has filed a counter affidavit and also a supplementary affidavit alleging therein that the writ petition be dismissed as not maintainable, as there is remedy available under the U.P. Land Revenue Act against orders passed under Section 34. The remedy of filing Appeal or Revision having not been availed of, which are statutory remedy, this writ petition cannot be entertained. Besides, it has also been argued by the counsel for the respondents that the orders impugned have been passed only in mutation proceedings, which are summary in nature and it is always open for the petitioner to move the competent court of law for cancellation of sale deed which he has not done. 9. It has also been stated that Civil Suit No. 547 of 2007 was filed by one Tahsildar alleging himself to be the guardian of the petitioner whereby the sale deed in question was challenged and the said suit was subsequently compromised and the compromise was made part of decree. A copy of the judgment and order dated 7.2.2008 has been filed along with the supplementary affidavit filed by the respondent no.8. 10. It has been argued by learned counsel for the respondent no. 8 that the petitioner did not challenge the compromise decree till date, nor has he submitted that the suit was filed by Tahsildar without his consent. 11. With regard to the submission of the learned counsel for the respondent no. 8 that a civil suit was filed, namely Civil Suit No. 547 of 2007 by one Tahsildar alleging himself to be the guardian of the petitioner, whereby sale deed in question was challenged and the said suit was subsequently compromised on 7.2.2008; counsel for the petitioner has submitted that the petitioner has never appointed Tahsildar as his guardian nor could have appointed Tahsildar as his guardian or pairokar as the petitioner is major and fully competent to understand his own interest. 12. 12. It has been submitted by the learned counsel for the petitioner that the petitioner had filed Original Civil Suit No. 546 of 2007 through one Nebu Lal, which suit was dismissed for non prosecution and the petitioner thereafter moved an application under Order IX, Rule 4 CPC for restoration of the said Civil Suit which has remained pending during the pendency of application for restoration moved on behalf of the Phagoo by Neebu Lal, another suit was filed by one Tahsildar, namely Suit No. 547 of 2007, which has been compromised as aforesaid by judgment and order dated 7.2.2008, which has been brought on record by means of a supplementary counter affidavit filed by the counsel for the respondent. 13. From a perusal of the counter affidavit dated 24.1.2011 passed by Sri A.P. Tiwari and Sri S.S. Tripathi, Advocates on behalf of the respondent no. 8 in this writ petition, it is evident that one Tahsildar son of Basudev showing himself to be R/o Basawanpur, Tappa Haveli, Pargana Chillupur, Tehsil Gola, District Gorakhpur had filed Original Suit No. 547 of 2007, on behalf of Phagoo against Smt. Durgawati for cancellation of sale deed dated 28.5.2007 alleging therein that the alleged natural guardian of the petitioner Smt. Shyam Rathi had never cared for the petitioner and had in fact married one Haridwar within one year of the death of his father Bhoolai and had left the petitioner to his own resources; and that Tahsildar was looking after all the needs of the petitioner and became guardian of the petitioner. 14. Initially it was not clear to this Court as to who this Tahsildar was who filed Suit No. 547 of 2007 and then got it disposed of on 7.2.2008 by filing a compromise that the sale deed dated 28.5.2007 has been executed by Smt. Shyam Rathi in accordance with law; and Phagoo has no grievance against the respondent no. 8 with regard to the execution of the sale deed. 15. The Civil Judge (Junior Division), Bansgaon has noticed the compromise signed by Smt. Durgawati and Tahsildar son of Basudev acting as guardian of Phagoo and has disposed of the Civil Suit on 7.2.2008. 16. 8 with regard to the execution of the sale deed. 15. The Civil Judge (Junior Division), Bansgaon has noticed the compromise signed by Smt. Durgawati and Tahsildar son of Basudev acting as guardian of Phagoo and has disposed of the Civil Suit on 7.2.2008. 16. Learned counsel for the petitioner has explained that Phagoo had never authorised Tahsildar to file any Civil Suit and the Civil Suit No. 547 of 2007 has been filed by Tahsildar in collusion with Smt. Durgawati, the alleged vendor of the property by the said deed dated 28.5.2007. His restoration application in Original Suit No. 547 of 2007 is still pending, tahsildar belongs to the same family as Smt. Shyam Rathi, who remarried with Haridwar after the death of the petitioner's father-Bhoolai as can be seen from a copy of the Pariwar Register of Tiha, Mohammadpur, Nyay Panchayat Dhubauli, District Gorakhpur filed as Annexure to the writ petition. 17. I have perused the copy of the pariwar register of Tiha Mohammadpur. In the copy of the Pariwar Register, it is evident that Tahsildar is the head of the family and he has been shown as son of Rangai. His caste is Yadav and Smt. Shyam Rathi has been shown at serial no. 5 in this family of 32 members with her husband shown as Haridwar. It is evident from a perusal of the Pariwar Register that Tahsildar belonged to the family of Smt. Shyam Rathi and in collusion with Smt. Shyam Rathi, who had sold off the property of the petitioner without his consent to the respondent no. 8, he had filed the Original Suit No. 547 of 2007 and got it dismissed by entering into a compromise with the respondent no. 8, which compromise is in fact collusive in nature as it says that the sale deed which had been questioned in the Original Suit No. 547 of 2007 is a genuine document. On the basis of such collusive compromise, the suit was decreed by the Civil Judge (Junior Division) under order 20 Rules 6-7 CPC on 7.2.2008. The Civil Suit filed by the petitioner, namely Original Suit No. 546 of 2007 was dismissed and a restoration application has been preferred by Nebu Lal the pairokar of the petitioner his cousin brother. 18. On the basis of such collusive compromise, the suit was decreed by the Civil Judge (Junior Division) under order 20 Rules 6-7 CPC on 7.2.2008. The Civil Suit filed by the petitioner, namely Original Suit No. 546 of 2007 was dismissed and a restoration application has been preferred by Nebu Lal the pairokar of the petitioner his cousin brother. 18. It has also been argued by the learned counsel for the petitioner and it is also evident from the record of the various affidavits filed by the opposite party that Tahsildar had also filed a Revision against the order dated 3.10.2009 alleging himself to be the guardian of Phagoo and the said Revision No. 176/83-G of 2010 (Tahsildar Vs. Durgawati) was dismissed on 5.5.2011. A copy of the order passed by the Additional Commissioner (Administration), Gorakhpur Division, Gorakhpur dated 5.5.2011 has been filed along with the supplementary affidavit filed by the respondent no. 8. 19. It is evident from a perusal of the order passed in Revision No. 176/83-G of 2010 that Tahsildar has shown himself to be the son of Basudev and living in Gorakhpur, although as is evident from the copy of Pariwar Register, Tahsildar belonged to a different village altogether and had nothing at all to do with the petitioner - Phagoo's village. 20. In the Revision, Phagoo had been arrayed as opposite party and his Advocate had also appeared on his behalf and filed objections saying that the Revision has been filed by an imposter in collusion with Smt. Durgawati and that Tahsildar had no relation with Phagoo and could not be treated as his guardian and the Revision was dismissed by the Additional Commissioner taking into account the argument raised by the counsel for Phagoo that against the order passed in mutation application dated 3.10.2009, a restoration application had been filed before the learned Court below which was pending and could not be disposed of because the file had been summoned in the said Revision. 21. With regard to the maintainability of the writ petition against orders passed in mutation application, this Court in the judgment rendered in the case of Lal Bachan Vs. Board of Revenue, (2002) 1 AWC 169 has held that ordinarily this Court shall not entertain writ petitions against orders passed in mutation proceedings only. 21. With regard to the maintainability of the writ petition against orders passed in mutation application, this Court in the judgment rendered in the case of Lal Bachan Vs. Board of Revenue, (2002) 1 AWC 169 has held that ordinarily this Court shall not entertain writ petitions against orders passed in mutation proceedings only. However this Court while considering several binding precedents on the issue has held in the case of Awadhesh Singh Vs. Additional Commissioner & others passed in Writ-C No. 13751 of 2005 decided on 4.8.2017, that ordinarily writ petitions are not entertained by this Court against orders passed in mutation proceedings, but there are two exceptions to this settled position; firstly if the order impugned has been passed in mutation proceedings, which is without jurisdiction and secondly when such an order confers a title or right, which is against the provisions of U.P. Z.A. & L.R. Act or the Land Revenue Act. 22. The case of the petitioner certainly falls within one of the two exceptions as it is evident from a perusal of the orders impugned that they have been passed without hearing the petitioner, who is actual owner of the property in question and only on the basis of submissions made by Smt. Shyam Rathi - respondent no. 7 that she was natural guardian of the petitioner and had therefore sold off the property to the respondent no. 8. The name of respondent no. 8 has been recorded without considering whether such subsequent applications could have been entertained when the earlier applications in which the petitioner had been issued notice, and had also filed his objections had been dismissed for want of prosecution. The second applications were entertained by the Tahsildar without jurisdiction, and orders have been passed effecting prejudicially interest of the petitioner. 23. Having heard the rival submissions, this Court is of the opinion that Phagoo may be hearing and speech impaired but he is not a person of unsound mind and he is major and has legal capacity to enter into a valid contract and his willingness or otherwise can be indicated by gestures, and he can also put his thumb impression where required. Phagoo was deceived by his mother, Smt. Shyam Rathi, who alleged herself to be the natural guardian of Phagoo and entered into a sale deed for the property in question with respondent no. Phagoo was deceived by his mother, Smt. Shyam Rathi, who alleged herself to be the natural guardian of Phagoo and entered into a sale deed for the property in question with respondent no. 8 and got it registered on 28.5.2007, when mutation applications were filed and Phagoo entered appearance and filed objections saying that the sale deed was not extended with the consent of real owner i.e. Phagoo, the said application was got dismissed for non prosecution, and two fresh applications which were not maintainable, were filed by respondent no. 8, which fresh applications did not array Phagoo as a party but arrayed one Surender, who had nothing at all to do with the property and Smt. Shyam Rathi as opposite parties. The applications were got transferred to another Court and without any opportunity of hearing to the real owner the applications were allowed on the appearance of Smt. Shyam Rathi and her collusive statement that she had indeed entered into a sale deed with the respondent no. 8 and sold off the property and she had nothing no objections to mutation being made in favour of the respondent no. 8 . 24. A restoration application was filed by Phagoo on which the Tahsildar passed an order staying the operation of the order of mutation, but such order was later on challenged in Appeal by respondent no. 8 and it has been stayed by the Appellate Authority. On the other hand, Phagoo through Nebu Lal filed Original Suit No. 546 of 2007 for cancellation of sale deed which was dismissed for want of prosecution and restoration application is pending therein. 25. Simultaneously, Tehsildar, who belongs to the same family as Smt. Shyam Rathi in collusion with Smt. Shyam Rathi and Smt. Durgawati filed a Revision No. 176/83/G of 2010 (Tahsildar Vs. Durgawati), wherein when Phagoo's counsel filed objections and brought the true and correct facts before the Additional Commissioner (Administration) consequently he dismissed the said Revision on 5.5.2011. Tahsildar also filed Original Suit No. 547 of 2007 alleging himself to be guardian of Phagoo, although there was no relationship disclosed in the said original suit but it has been said that Tahsildar belonged to the same village as Phagoo's and looked after him and therefore was acting as his guardian and filing the said original suit. 26. Tahsildar also filed Original Suit No. 547 of 2007 alleging himself to be guardian of Phagoo, although there was no relationship disclosed in the said original suit but it has been said that Tahsildar belonged to the same village as Phagoo's and looked after him and therefore was acting as his guardian and filing the said original suit. 26. From the record, it is evident that Phagoo has been deceived not only by his alleged natural guardian his mother Smt. Shyam Rathi, but also by Tahsildar, who belongs to the same family as Smt. Shyam Rathi, as is evident from the perusal of the copy of the Pariwar Register filed with the writ petition. Tahsildar belonged to a different village i.e. Babat Mauza Basawanpur Sansarpur, Bansgaon, Gorakhpur and had nothing to do with the petitioner - Phagoo, but he posed as his guardian and filed a collusive suit for setting aside sale deed and also a collusive Revision for setting aside the order of mutation dated 3.10.2009. 27. It has been argued by the learned counsel for the respondents that since the restoration application in the Civil Suit No. 546 of 2007 filed by Nebu Lal - the pairokar of the petitioner Phagoo is pending before the learned Court below i.e. the Court of Civil Judge (Junior Division), Bansgaon and since the restoration application of the petitioner filed through Nebu Lal for recall of order passed in mutation is pending before the Tahsildar Bansgaon, this Court should not entertain the writ petition and should dispose of the writ petition remanding the matter to the Authorities concerned to decide in accordance with law, leaving it open to the petitioner to take all objections as available to him in law to challenge the right title and interest of the respondent no. 8 and the respondent no. 7 herein. 28. This Court has entertained this writ petition and passed an order on 6.9.2010 directing the parties to maintain status quo with respect to nature and possession over the land in dispute as it existed on date, and both the parties were further restrained from alienating, transferring or creating any third party rights over the land in dispute. 29. 28. This Court has entertained this writ petition and passed an order on 6.9.2010 directing the parties to maintain status quo with respect to nature and possession over the land in dispute as it existed on date, and both the parties were further restrained from alienating, transferring or creating any third party rights over the land in dispute. 29. This Court being convinced that the order dated 3.10.2009, which is challenged in this writ petition relating to mutation application has been passed without jurisdiction as no second application for mutation was maintainable, sets aside the order dated 3.10.2009. 30. Since restoration application of Phagoo through his pairokar - Nebu Lal was filed for recall of order dated 3.10.2009 and the said order has been set aside by this Court, no mutation application can be entertained and the restoration application will also stand disposed of as having become infructuous. 31. The restoration application filed by the petitioner through his pairokar Nebu Lal in Original Suit No. 546 of 2007 for declaration of sale deed dated 28.5.2007 being void is pending before the Civil Judge (Junior Division), Bansgaon, which restoration application should now be considered by the learned Court below in accordance with law and orders may be passed thereon after giving opportunity of hearing not only to Phagoo, but also to Smt. Shyam Rathi and Smt. Durgawati - the respondent nos. 7 & 8 herein. 32. Since the restoration application, the Suit No. 546 of 2007 is more than 10 years old it is expected that the Civil Judge (Junior Division) before whom the said suit / restoration application is said to be pending shall consider and decide the same in accordance with the direction of this Court expressed on the administrative side with regard to priority cases on the Civil side being disposed of by the year end. 33. It has been informed by learned counsel for the petitioner that the Court of Civil Judge (Junior Division), Bansgaon is vacant as on date. The petitioner is directed to approach the District Judge by moving an appropriate application for transfer of the case, if he is so advised.