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2021 DIGILAW 1029 (ALL)

Noor Ahmad @ Chand v. Board Of Revenue

2021-09-08

SALIL KUMAR RAI

body2021
JUDGMENT : Salil Kumar Rai, J. 1. Heard Shri Ramesh Kumar Shukla, counsel for the petitioner and Shri Sanjeev Kumar Pandey, Advocate, representing respondent Nos. 3 to 5. 2. The facts of the case are that one Mehtab Ahmad @ Afzal Ahmad was admittedly the tenure holder of Plot No. 3 (area 1.306 hectares), Plot No. 15 (area 0.517 hectares) and Plot No. 111 (area 0.549 hectares). Mehtab Ahmad was murdered and died on 9.8.1984. Mehtab Ahmad was survived by his father Hazi Ameer Ahmad, his mother and his brothers. The petitioner, respondent Nos. 3 to 5 and one Zameer Ahmad @ Abrar Ahmad are brothers of the deceased Mehtab Ahmad. After the death of Mehtab Ahmad, the petitioner got his name mutated in the revenue records relating to the disputed plots on the basis of a Will allegedly executed by Mehtab Ahmad. Hazi Ameer Ahmad, i.e., the father of Mehtab Ahmad died on 7.2.2003. In 2007, the respondent Nos. 3 to 5 alongwith Zameer Ahmad and mother of Mehtab Ahmad, i.e., the widow of Hazi Ameer Ahmad, instituted Case No. 10/2007 under Section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') for declaration of their rights as co-tenure holders of the disputed plots pleading that, after the death of Mehtab Ahmad, the plots devolved on his father Hazi Ameer Ahmad and after the death of Hazi Ameer Ahmad the plaintiffs alongwith the petitioner became co-tenure holder of the disputed plots. While the aforesaid case was still pending, the respondent Nos. 3 to 5 filed an application on 31.1.2011 before the Tehsildar, Nagina for recall of the order dated 28.10.1985. The Tehsildar vide his order dated 30.12.2011 recalled the order dated 28.10.1985 and restored the mutation case registered at the instance of the petitioner. The petitioner alleging that the order dated 30.12.2011 was an ex-parte order passed without giving any opportunity of hearing to him, filed a recall application for recall of the order dated 30.12.2011. The Tehsildar through his order dated 23.3.2012 recalled his order dated 30.12.2011on the ground that the recall application filed by respondent Nos. 3 to 5 was not maintainable as Case No. 10/2007 registered under Section 229-B of the Act, 1950 was still pending. Against the order dated 23.3.2012 passed by the Tehsildar, the respondent Nos. The Tehsildar through his order dated 23.3.2012 recalled his order dated 30.12.2011on the ground that the recall application filed by respondent Nos. 3 to 5 was not maintainable as Case No. 10/2007 registered under Section 229-B of the Act, 1950 was still pending. Against the order dated 23.3.2012 passed by the Tehsildar, the respondent Nos. 3 to 5 filed appeal before the Sub Divisional Magistrate, Nagina (hereinafter referred to as, 'S.D.M.'), who vide his order dated 30.6.2012 dismissed the said appeal. Consequently, the respondent Nos. 3 to 5 filed Revision No. 98/11-12 before the Commissioner, Moradabad Division, Moradabad (hereinafter referred to as, 'Commissioner') and the Commissioner vide his order dated 23.7.2012 allowed the revision and set aside the orders dated 30.6.2012, 23.3.2012 and 28.10.1985 passed by the subordinate revenue authorities and remanded back the matter to the Tehsildar to pass fresh orders in the mutation case. The order dated 23.7.2012 passed by the Commissioner was challenged by the petitioner before the Board of Revenue, U.P. at Lucknow (hereinafter referred to as, 'Board of Revenue') through Revision No. 2435/LR/2011-12. The said revision has been dismissed by the Board of Revenue vide its order dated 22.8.2012. The orders dated 23.7.2012 and 22.8.2012 have been challenged in the present writ petition. 3. It is the admitted case of the parties that Hazi Ameer Ahmad was alive when Mehtab Ahmad died. Succession to the disputed plots is governed by Section 171 of the Act, 1950. Under Section 171 of the Act, 1950, after the death of Mehtab Ahmad in 1984, Hazi Ameer Ahmad, i.e., the father of Mehtab Ahmad had preferential rights over the brothers and mother of the deceased Mehtab Ahmad and the disputed plots would have devolved on Hazi Ameer Ahmad in case no Will had allegedly been executed by the deceased Mehtab Ahmad. 4. It is not the case of respondent Nos. 3 to 5 that during his life time, Hazi Ameer Ahmad had raised any objections to the Will propounded by the petitioner or to the mutation order dated 28.10.1985 passed on the basis of the said Will. 5. A reading of the order dated 30.12.20211 passed by the Tehsildar also indicates that respondent Nos. 3 to 5, in their application for recall, had stated that they came to know about the Will only after the death of Hazi Ameer Ahmad. 5. A reading of the order dated 30.12.20211 passed by the Tehsildar also indicates that respondent Nos. 3 to 5, in their application for recall, had stated that they came to know about the Will only after the death of Hazi Ameer Ahmad. However, from the order dated 30.12.2011 passed by the Tehsildar it appears that no explanation was given by the respondent Nos. 3 to 5 as to why Hazi Ameer Ahmad had not filed any application for recall of the order dated 28.10.1985 and had never contested the Will propounded by the petitioner. In the circumstances, an issue can be raised regarding the acquiescence of Hazi Ameer Ahmad, which can be tested only in regular proceedings where the validity of the Will propounded by the petitioner can be tested. 6. In the orders dated 30.12.2011, 23.7.2012 and 22.8.2012 passed against the petitioner by the revenue courts, the order dated 28.10.1985 has been recalled or set aside only on the ground that the Will propounded by the petitioner was surrounded by suspicious circumstances. The legality of the Will, in the facts narrated above, can not be tested in mutation proceedings and could have been tested only in regular proceedings registered at the instance of respondent Nos. 3 to 5 under Section 229-B of the Act, 1950. When the recall application was filed by respondent Nos. 3 to 5, the proceedings instituted under Section 229-B of the Act, 1950 were pending and, therefore, the recall application and the appeal filed by respondent Nos. 3 to 5 was rightly rejected vide order dated 23.3.2012 passed by the Tehsildar and by the appellate court vide its order dated 30.6.2012. The revisional courts have not considered the aforesaid aspects in their orders dated 23.7.2012 and 22.8.2012. 7. For the aforesaid reasons, the orders dated 23.7.2012 and 22.8.2012 passed by the revisional courts are illegal and contrary to law and therefore liable to be set aside. 8. The orders dated 23.7.2012 and 22.8.2012 passed by the revisional courts are hereby quashed. 9. The writ petition is allowed.