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2020 DIGILAW 41 (ALL)

Jagbhan Singh v. Board Of Revenue

2020-01-06

ANJANI KUMAR MISHRA

body2020
JUDGMENT : 1. Heard learned counsel for the petitioner and Shri R.C. Singh, learned Senior Advocate for the respondent no.6 and learned Standing counsel for the State-respondents. 2. The writ petition arises out of a suit for partition under Section 116 of the U.P. Revenue Code, 2006 and seeks a writ of certiorari for quashing order dated 10.08.2019 (Annexure No.14) passed by the Sub Divisional Magistrate, Mau Chitrakoot, respondent no.2. 3. The second prayer made is for expeditious disposal of a revision filed by the opposite party, respondent no.6, which is directed against an order passed by the Commissioner, whereby the petitioners were directed to be impleaded in the suit for partition. 4. Primarily, grievance of the petitioners' is that they have been dispossessed from land in their possession, in the garb of execution of a final decree for partition, to which, they were not parties. 5. On the petition coming up for admission, the following order was passed on 29.04.2019 - "Prima facie it appears that a final decree in a suit for partition has been executed on the administrative side by the SDM with the use of police force. This action is sought to be justified by counsel appearing for the respondent on the ground that the proceeding for implementation of the final decree in the suit, was judicial proceedings. He has referred to the second paragraph on page 84 of the paper book, the second page of the impugned order, wherein reference has been made to evidence, and objections available on record. The SDM, Mau, District Chitrakoot is directed to transmit the record relied upon by him while passing the impugned order dated 10.08.2019 to this Court, forthwith. Put up this case in the additional cause list on 15.10.2019 by which time learned Standing Counsel shall also ensure that the relevant record is available for perusal of this Court." 6. Subsequently, the matter has been heard and is being decided finally. 7. The contention of counsel for the petitioner is that the impugned order dated 10.08.2019 has been passed on the administrative side and not in proceedings for execution of final partition decree. The order and action consequent thereto, is without jurisdiction, even though it purports have been been taken in compliance of directions issued on 11.04.2019 in Writ Petition No.12130 of 2019. 8. The order and action consequent thereto, is without jurisdiction, even though it purports have been been taken in compliance of directions issued on 11.04.2019 in Writ Petition No.12130 of 2019. 8. It is submitted that the impugned order could not have been passed because in the partition suit, the petitioner had filed an impleadment application. The impleadment application was rejected by the trial Court. However, in appeal, the same was allowed. The respondent no.6 challenged the appellate order before the Board of Revenue in Revision No.1077 of 2018, Smt.Geeta Singh Vs. Udai Bhan Singh and others, wherein the order passed by the Commissioner has been stayed. This stay would not amount to rejection of the petitioner's impleadment application. Prima facie, therefore, the petitioner has interest in the land subject matter of the partition suit but ignoring the same, the partition decree has been executed on the administrative side. The order passed by the respondent no.2 is not only illegal, it also clearly malafide and abuse of the process of law. 9. Shri R.C. Singh, learned Senior Advocate appearing for the respondent nos. 3 and 6 on the basis of the date chart filed by him, submitted that the petitioners have no interest in the property in question. Only an illegal entry, under Class 9, had been obtained. Therefore, a suit under Section 229B of the U.P. Zamindari Abolition and Land Reforms Act, filed by Bhuriya Singh was decreed and the Class 9 entry in favour of Bhikham Singh was expunged. Bhikham Singh nor his sons, the petitioners, were ever in possession over the land in question. 10. Bhuriya Singh, who filed the declaratory suit for expunging the Class 9 entry, was succeeded by respondent no.3, Dev Narayan Singh, who in turn, was succeeded by his sons Raja Gulab Singh, Chhote Lal and his widow Prema Devi. Prema Devi executed a sale deed of her share in favour of respondent no.6. The respondent no.6 thereafter filed the suit for partition, wherein the final decree was passed and the same has rightly been executed on the spot. The petitioners have no right, title or interest in the land in question. Neither they are in possession thereon. 11. Prema Devi executed a sale deed of her share in favour of respondent no.6. The respondent no.6 thereafter filed the suit for partition, wherein the final decree was passed and the same has rightly been executed on the spot. The petitioners have no right, title or interest in the land in question. Neither they are in possession thereon. 11. It is also contended that upon the order of the writ Petition No.12130 of 2019 dated 11.04.2019 being filed before the Sub Divisional Magistrate, respondent no.2, notices were issued to the petitioners and after considering their objections, the impugned order dated 10.08.2019 has rightly been passed. The writ petition is therefore, liable to be dismissed. 12. I have considered the submissions made by learned counsel for the parties and perused the record as also the original record produced by learned Standing Counsel. 13. The original record produced is in three compilations - (i) Record of Suit No.09 of 2018 under Section 116 of the U.P. Revenue Code, 2006. (ii) Record which contains no Case number and only mentions Misilband No.22. (iii) Record of Revision No.2912 of 2018 under Section 207 of U.P. Revenue Code, 2006, pending before the Board of Revenue. 14. The third compilation is the one required to be looked into. However, I do not find copy of the order impugned in this writ petition, on the record of the trial Court of partition suit No.9 of 2018. This is the first compilation is only upto preparation of the final decree and a parwana amaldaramad being issued for incorporation of the same in the revenue records. The Parwana Amaldaramad has been issued on 22.09.2018. 15. Although, it is sought to be contended that the order impugned has been passed in execution of the final decree for partition, no record of any execution case has been produced, although, learned Standing Counsel had been directed to produce such record, as also the material, on the basis whereof, the impugned order had been passed. Non production of this record clearly supports the contention of the petitioners that the impugned order has been passed on the administrative side. 16. The second and relevant compilation contains copy of the letter, which is impugned in this writ petition. This file contains two copies of this order / letter dated 14 August 2019. Non production of this record clearly supports the contention of the petitioners that the impugned order has been passed on the administrative side. 16. The second and relevant compilation contains copy of the letter, which is impugned in this writ petition. This file contains two copies of this order / letter dated 14 August 2019. The first copy available on the file, does not bear any date below the signature. 17. The second copy bears the date 10.08.2019 below the signature The certified copy annexed along with the writ petition is a copy of this second document, but is manifestly, incomplete. One whole page of the same appears to be missing. The other copy contains the part which is manifestly missing in the certified copy, noticed above. This copy bears no date on which it was signed. 18. Annexure 14 to the writ petition which is impugned, bears letter No.2250 / ST/Mau. Subject of this letter is implementation of the order passed in Writ Petition No.12130 of 2019 dated 11.04.2019. The order dated 11.04.2019 was that the final decree in the suit for partition be implemented on the spot, in case, there was no legal impediment to such implementation. 19. The objections that had been raised by the petitioners as regard the legal impediments, find mention in this letter. 20. Despite the order passed by the writ Court on 11.04.2019, the Sub Divisional Magistrate is not empowered to issue a direction for the execution of a partition decree, on the administrative side. There is no mention of any execution case in the impugned letter/order. It also does not bear any case number and as noticed above, is merely a letter directing compliance of directions issued in Writ Petition No.12130 of 2019, vide order dated 11.04.2019. The subject of this letter is not execution of the final partition decree. 21. On the top, the letter/order impugned is mentioned the date August 14, 2019. This document bears the signature of the Sub Divisional Magistrate and below is a date has been transcribed in the same ink and hand writing which reads 10.08.2019. This is not possible. A letter prepared / typed on August 14, 2019 could not have been signed four days prior to its preparation. 22. In pursuance of this letter, the partition decree has been executed on the spot with the help of police force, on 2.9.2019. 23. This is not possible. A letter prepared / typed on August 14, 2019 could not have been signed four days prior to its preparation. 22. In pursuance of this letter, the partition decree has been executed on the spot with the help of police force, on 2.9.2019. 23. On the same file, there is a report by the Lekhpal dated 27.06.2019, duly forwarded by the Revenue Inspector, wherein it has been categorically mentioned that Udai Bhan Singh, Jag Bhan Singh and Prem Bhan Singh sons of Bhisham Singh are in unauthorized occupation over plot no.1268M area 0.100 hectare. They have planted trees and constructed a well. They claim to be in possession for the last 40 years and that a suit for their dispossession under Section 134 of the U.P. Revenue Code, 2006 is pending consideration before the Sub Divisional Magistrate, Mau, District Chitrakoot. 24. Once, there was material on record to show that a case under Section 134 of the U.P. Revenue Code, 2006 was pending against the petitioners, there was no justification for forcibly dispossessing them, in execution of a decree for partition, to which, the unauthorized occupants were admittedly, not parties. 25. In any case, the impugned order / letter dated 10.08.2019 cannot be a judicial order because it does not refer to any case number or the details of the parties. Even otherwise, the impugned letter/order dated 10.08.2019 has not been passed after hearing the parties. It, at best, considers the objection that was filed by the petitioners, but in my considered opinion, this is not enough. This order is manifestly exparte, passed without hearing the petitioners and also without considering the report of the Revenue Inspector referred to above. The letter/order is therefore, illegal and also arbitrary and therefore cannot be sustained. 26. The administrative authorities cannot, in the garb of executing a decree for partition, resort to execution proceedings on the administrative side and in the process evict a person in possession, who is not a party in the partition suit nor is a party to the decree, allegedly being executed. For the same reason, the impugned order and the consequential action in pursuance thereof, cannot be sustained. The SDM has by an administrative order, tried to decided an eviction suit under section 134 of the Revenue Code, 2006. 27. The Sub Divisional Magistrate, Mr. For the same reason, the impugned order and the consequential action in pursuance thereof, cannot be sustained. The SDM has by an administrative order, tried to decided an eviction suit under section 134 of the Revenue Code, 2006. 27. The Sub Divisional Magistrate, Mr. Ramesh Yadav, has manifestly misused his position to provide undue benefit to the plaintiff by ignoring material before him which showed that third parties were in possession, directed execution of a partition decree on the administrative side, in the process evicting occupants of land who were not parties in the partition suit and against who existed no eviction decree. That is why police force was directed to be used. In normal circumstances, execution of a partition decree, does not require police force, unless demanded by the Amin, who has to execute the decree. Even the memo prepared at the time of execution states that the encroachers were not present on the spot when the decree was being executed. Besides, the plaintiff, below her signature has recorded that items and a vehicle (gaddi) lying over the land given in her possession, be removed. 28. The writ petition is accordingly allowed. The impugned letter/ order dated 10.08.2019 (Annexure 14) is hereby quashed. The Sub Divisional Magistrate, Mau, District Chitrakoot, respondent no.2 is directed to ensure that status-quo ante as existing on the date the order dated 10.08.2019 was passed by him, is restored, forthwith. 29. For his illegal conduct and actions, geared to providing undue benefit to respondent no:6, Ramesh Yadav, SDM, Mau, District Chitrakoot is liable to costs of Rs.25,000/-to be deposited by him within a month, failing which, the same shall be deducted from his salary/ and or recovered as arrears of land revenue. 30. Moreover, an entry shall be made in his service record that he has been found by this Court to be guilty of acting beyond jurisdiction with a view to favour a private party and to provide her possession over land by forcibly dispossessing its occupants, in the garb of executing a partition decree especially when there was no decree for dispossession against the occupants nor they were parties to the partition decree and for this purpose having passed and signed an order on 10.08.2019 which had been dated 14.08.2019, at its top. This was done by him on the administrative side, having signed the order / letter impugned in this petition as Sub Divisional Magistrate and not as Sub Divisional Officer, a designation to be used when discharging, judicial functions. 31. The original records produced by Learned Standing Counsel be returned back to him, forthwith.