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2019 DIGILAW 2628 (ALL)

Vijayanand Saxena v. Board of Revenue

2019-11-22

SALIL KUMAR RAI

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JUDGMENT : Salil Kumar Rai, J. 1. Heard the Counsel for the parties. 2. The facts of the case are that one Bramhanand was the original tenure holder of the disputed plots. Sachidanand and Vashunanand, i.e., the predecessors of the petitioners and the respondent Nos. 3 and 4 were the brothers of Bramhanand. One Gyanwati, i.e., the vendor of respondent No. 2 claimed herself to be the widow of Bramhanand. Bramhanand died on 5th February, 1976. After the death of Bramhanand, the name of Gyanwati was entered into the revenue records in place of Bramhanand on 8.1.1979. Consequently, Sachidanand and Vashunanand, i.e., the predecessors of the petitioners and respondent Nos. 3 and 4 filed an application under section 34 of the Uttar Pradesh Land Revenue Act, 1901 (hereinafter referred to as, 'Act, 1901') claiming themselves to be the heirs of Bramhanand. In their aforesaid application, Sachidanand and Vashunanand alleged that Gyanwati was not the widow of Bramhanand. The application of Sachidanand and Vashunanand was dismissed by the concerned Tehsildar. The order passed by the Tehsildar was never challenged by Sachidanand and Vashunanand in appeal or revision. Subsequently, Gyanwati executed sale deeds dated 13.6.1985 and 15.7.1989 transferring the disputed plots in favour of respondent No. 2. Sachidanand and Vashunanand, i.e., the predecessors of the petitioners instituted cases under section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') praying for a decree declaring them to be the Bhumidhars of the disputed plots. In the said cases also, the predecessors of the petitioners denied that Gyanwati was the widow of Bramhanand and, therefore, pleaded that she had no right to execute the sale deeds in favour of respondent No. 2 and the plaintiffs, being the brothers of Bramhanand, were entitled to succeed to the estate of Bramhanand. Before the Trial Court, Gyanwati herself appeared as a witness. The Trial Court vide its judgment and decree dated 1.4.2000, dismissed the suits filed by the predecessors of the petitioners and respondent Nos. 3 and 4 after considering the testimony of Gyanwati and her witness as well as the documentary evidence filed by Gyanwati. Before the Trial Court, Gyanwati herself appeared as a witness. The Trial Court vide its judgment and decree dated 1.4.2000, dismissed the suits filed by the predecessors of the petitioners and respondent Nos. 3 and 4 after considering the testimony of Gyanwati and her witness as well as the documentary evidence filed by Gyanwati. While dismissing the suits filed by Sachidanand and Vashunanand, the Trial Court considered the voter list and the receipts of house tax and water tax and the certificate issued by the Principal Rajkiya Inter College which showed that Gyanwati was recorded as the wife of Bramhanand. In the Trial Court, Gyanwati had also stated that she had a daughter Neerja Sinha from her marriage with Bramhanand and the High School certificate of Neerja Sinha was filed by Gyanwati to prove the fact that Bramhanand had a daughter named Neerja Sinha which was considered by the Trial Court. 3. The judgment and decree dated 1.4.2000 was challenged by Sachidanand and Vashunanand by filing Revisions under section 333 of the Act, 1950. The Additional Commissioner (Judicial) Bareilly Division, Bareilly vide his order dated 30.7.2005 allowed the revisions filed by Sachidanand and Vashunanand and decreed the suits filed by Sachidanand and Vashunanand under section 229-B of the Act, 1950. In his order dated 30.7.2005, the Additional Commissioner held that the trial Court had erred in relying on the photo copies of the documents filed by Gyanwati. Aggrieved by the judgment and order dated 30.7.2005 passed by the Additional Commissioner, the respondent No. 2 filed Revision Nos. 19 and 20 before the Board of Revenue, Uttar Pradesh at Allahabad which were admitted for hearing by order dated 12.9.2005 but were subsequently dismissed by the Board of Revenue vide its order dated 22.1.2014 because of certain formal defects in the revisions and also because necessary parties were not impleaded in the Revision. However, the Board of Revenue vide its order dated 22.1.2014 permitted the respondent No. 2 to file fresh revisions challenging the order passed by the Additional Commissioner after impleading the necessary parties in the case. Subsequently, the respondent No. 2 filed Revision Nos. 24 and 25 of 2013-14 before the Board of Revenue which have been allowed by order dated 25.8.2017 and the order dated 1.4.2000 passed by the trial Court has been restored. Subsequently, the respondent No. 2 filed Revision Nos. 24 and 25 of 2013-14 before the Board of Revenue which have been allowed by order dated 25.8.2017 and the order dated 1.4.2000 passed by the trial Court has been restored. The order dated 25.8.2017 passed by the Board of Revenue has been challenged in the present writ petition. 4. It was argued by the Counsel for the petitioners that Revision Nos. 24 and 25 of 2013-14 were highly belated and no delay condonation application was filed explaining the delay in filing the said revisions. It was further argued that the Board of Revenue has allowed Revision Nos. 24 and 25 of 2013-14 vide its order dated 25.8.2017 without condoning the delay in filing the said revisions and, therefore, the order dated 25.8.2017 passed by the Board of Revenue is without jurisdiction and is liable to be set aside. 5. I am not inclined to accept the aforesaid argument. It is not the case of the petitioners that Revision Nos. 19 and 20, initially filed by respondent No. 2 against the order dated 30.7.2005 passed. by the Additional Commissioner, were not filed within the prescribed time. The said revisions were admitted for hearing but were dismissed by order dated 22.1.2014 due to certain formal defects in the revisions and through the same order, the Board of Revenue permitted the respondent No. 2 to file a fresh revision after impleading the necessary parties. It appears that subsequently Revision Nos. 24 and 25 of 2013-14 were filed by respondent No. 2 on 27.3.2014. In view of the aforesaid, Revision Nos. 24 and 25 of 2013-14 filed by respondent No. 2 cannot be held to be beyond time as the same were filed as a consequence of the permission granted by the Board of Revenue through its previous order dated 22.1.2014. 6. Apart from the aforesaid, through its order dated 25.8.2017, the Board of Revenue has set-aside the order dated 30.7.2005 passed by the Additional Commissioner. The order dated 30.7.2005 was passed by the Additional Commissioner in Revisions filed under section 333 of the Act, 1950 against the order passed by the Trial Court, i.e., the Assistant Collector in a suit registered under section 229-B of the Act, 1950. The Revisional Court had no jurisdiction to decree the suit. The order dated 30.7.2005 was passed by the Additional Commissioner in Revisions filed under section 333 of the Act, 1950 against the order passed by the Trial Court, i.e., the Assistant Collector in a suit registered under section 229-B of the Act, 1950. The Revisional Court had no jurisdiction to decree the suit. Through its order dated 30.7.2005, the Additional Commissioner had exceeded his jurisdiction by decreeing the suit filed by the predecessors of the petitioners. 7. Further, through his order dated 30.7.2005, the Additional Commissioner had set aside the order passed by the trial Court on the ground that the trial Court had erred in relying on the photo copies of the documents filed by the defendants in the case. There is nothing on record to show that the plaintiffs, i.e., the predecessors-in-interest of the petitioners, had registered their objections before the Trial Court against admitting or reading in evidence the photo copies of the documents filed by the defendants. The failure of the plaintiffs to so object before the Trial Court debarred them from raising the said objections in any superior Court and the Trial Court committed no jurisdictional error by reading in evidence the photo copies of the documents filed by the defendants. For the aforesaid reason, also the Additional Commissioner exceeded his jurisdiction in setting-aside the order passed by the Trial Court on the ground that the Trial Court had considered photo copies of certain documents while rejecting the case of the predecessors of the petitioners. In his order dated 30.7.2005, the Additional Commissioner also did not consider that while dismissing the case of the predecessors of the petitioner, the Trial Court had considered the oral testimony of Gyanwati and her witness and also the high school certificate of her daughter to record a finding that Gyanwati was the widow of Bramhanand and, therefore, entitled to succeed Bramhanand. Evidently, the order dated 30.7.2005 passed by the Additional Commissioner was illegal and without jurisdiction. 8. In view of the aforesaid, this Court would not interfere under Article 226 of the Constitution of India to set-aside one illegal order to restore another illegal order assuming, there is any illegality in the impugned order passed by the Board of Revenue. 9. For the aforesaid reasons, the writ petition lacks merit and is, hereby, dismissed. 10. Interim order, if any, stands vacated.