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2023 DIGILAW 900 (ALL)

Rajpatti Devi v. Board of Revenue

2023-04-04

JAYANT BANERJI

body2023
JUDGMENT Jayant Banerji, J. Heard learned counsel for the petitioners and Shri Arun Kumar, learned counsel appearing for respondent Nos. 2 and 14. Learned Standing Counsel appears for respondent No.1. Notice on respondent Nos. 3 to 13 has been deemed sufficient by the order dated 27.3.2023. 2. This writ petition has been filed challenging the judgment and order dated 24.9.2018, passed by the respondent No.1, Board of Revenue, in Second Appeal No.6 of 2009-2010 (Sursatti Devi and another v. Rajpatti Devi and others). 3. It is stated in the petition that the petitioners filed a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 on 4.2.1985 before the Court of the Assistant Collector 1st class, Karchhana, District Allahabad for declaration as Bhumidhar in respect of the plots of land in question. It is stated that written statements were also filed. It is stated that the petitioner No.1 is the second wife of Ram Pratap, who was the recorded Bhumidhar in possession of the plots in question and he died on 17.3.1980. The petitioner No.1 is stated to be blind by birth. From the wedlock of Ram Pratap and his first wife, five daughters were born who were married during the lifetime of Ram Pratap. It is stated that the petitioner No.1 never executed any gift deed on 1.3.1980 in favour of the aforesaid five daughters of her husband and that the gift deed was a forged and illegal document. By a judgment and order dated 29.4.1989, the suit was decreed in favour of the petitioner No.1 and she was declared Bhumidhar. 4. Thereafter, the step-daughters of the petitioner No.1 filed first appeal under Section 331 of the Act of 1950, against the judgment and decree dated 29.4.1989. The Appellate Authority (the Additional Commissioner Allahabad Division) dismissed the appeal by a judgment and order dated 14.9.1990. It is stated that thereafter, the respondent Nos. 2 and 3 filed second appeal before the Board of Revenue which appeal was allowed on 24.9.2018 while setting aside the orders dated 29.4.1989 and 14.9.1990. 5. It is stated that the petitioner No.1 had filed a civil suit in the Court of the Additional Munsif XIII Allahabad, bearing O.S. No. 457 of 1981 for cancellation of the gift deed dated 1.3.1980, which was dismissed by the judgment and order dated 30.4.1983. 5. It is stated that the petitioner No.1 had filed a civil suit in the Court of the Additional Munsif XIII Allahabad, bearing O.S. No. 457 of 1981 for cancellation of the gift deed dated 1.3.1980, which was dismissed by the judgment and order dated 30.4.1983. Against the decree made pursuant to the judgment and order dated 30.4.1983, the petitioner No.1 filed a civil appeal which was allowed by judgment and order dated 20.07.1984 and the judgment and decree of the trial court was set aside and the plaint was directed to be returned back to the plaintiff for presentation to the proper Court. 6. The contention of the learned counsel for the petitioners is that valid document regarding the date of death of the husband of the petitioner No.1 was filed in the suit instituted under Section 229-B of the Act of 1950, which reflected the date of death as 17.3.1980. The contention is that the second appellate court has re-appreciated the facts and has recorded a perverse findings that the late husband of the petitioner No.1 had died before the petitioner No.1. It is contended that there was no question of the petitioner No.1, who was blind by birth and a 'Pardanasin' lady, to have executed the gift deed dated 1.3.1980 in favour of her five daughters during the lifetime of her husband and, therefore, that gift deed itself was a fraudulent and void document. 7. Shri Arun Kumar, learned counsel for the private-respondents aforesaid, has opposed the writ petition and stated that the second appellate court has rightly appreciated the factual issues involved inasmuch as the judgments and decrees of the trial court as well as the first appellate court were based upon a document purportedly evincing the date of death of the husband of the petitioner No.1 as 17.3.1980. It is stated that document could not have been looked into as evidence, as it was issued under provisions that do not contemplate issuance of such a certificate in respect of a Bhumidhar. The learned counsel has referred to the findings recorded by the second appellate court in support of his submission. 8. It is evident from the record that the petitioner No.1 had instituted a suit for cancellation of the gift deed dated 1.3.1980, which was dismissed by the trial court. The learned counsel has referred to the findings recorded by the second appellate court in support of his submission. 8. It is evident from the record that the petitioner No.1 had instituted a suit for cancellation of the gift deed dated 1.3.1980, which was dismissed by the trial court. However, in appeal, on the contention of the plaintiff respondents that the gift deed being a void document, no cancellation decree was required and that proceedings would be taken by the petitioner No.1 before the Revenue Court for declaration of the legal rights, the appellate court set aside the judgment and decree of the trial court and directed the plaint to be returned to the plaintiff for presentation before the proper Court. 9. The suit under Section 229-B of the Act of 1950 was then filed by the petitioner No.1 in the Revenue Court which was allowed by a judgment and order dated 29.4.1989 and she was declared a Bhumidhar with transferable rights in respect of the plots of land in question. The trial court relied upon the so-called copy of the family register to record finding of the death of the husband of the petitioner No.1 on 17.3.1980. The respondents concerned challenged the aforesaid judgment of the trial court in an appeal before the Additional Commissioner, Allahabad Division. The first appellate court relied upon the document which was allegedly a certified copy of the birth and death register, to record the finding of death of husband of the petitioner No.1 on 17.3.1980, and dismissed the appeal. 10. Thereafter, a second appeal was filed by the respondents in which three substantial questions of law were framed. The second appellate court perused the so-called family register and the copy of the family register filed by the petitioner No.1, which was relied upon by the trial court to record the date of death of husband of the petitioner No.1 as 17.3.1980. The second appellate court found that it was not a copy of a family register, but it was a certificate of registration of birth and death issued in Form-13, issued by the Directorate of Health Services and Family Planning, U.P. Lucknow. The second appellate court found that it was not a copy of a family register, but it was a certificate of registration of birth and death issued in Form-13, issued by the Directorate of Health Services and Family Planning, U.P. Lucknow. On secrutinizing the aforesaid certificate, the Court found that the date of death of the deceased as 17.3.1980 was informed by one Ram Prakash resident of village Debra, through the Panchayat Secretary on 20.3.1980, on the basis of which the aforesaid certificate was issued on 21.3.1980 under the own signature of the Panchayat Secretary. The second appellate court noted that with effect from 5.6.1970, the U.P. Panchayat Raj (Maintenance of Family Register), Rules 1970 are applicable. Ordinarily, with regard to the every family residing in rural areas, the record of birth and death is made in a family register in form-'?', which rule was effective in the year of death of the original tenure holder. The Court further observed that instead of such a record being made in the appropriate register, the date of death was recorded in that register which is in use in urban areas, which fact makes the date of death suspicious. It was, therefore, found that the finding recorded by the Courts below regarding the date of death on the basis of such a document is baseless. 11. The second appellate court further noted that admittedly the petitioner No.1, on 15.2.1980, that is nearly one month prior to the alleged date of death of her husband on 17.3.1980, had moved for mutation in the revenue records and for issuance of ? 0 ? 0-11. The Court held that this fact was evidence that the previous tenure holder Ram Pratap had died prior to the date of execution of the gift deed on 1.3.1980. The second appellate court also noticed that though in the own affidavit of the petitioner No.1 dated 15.11.1980, she had admitted the transfer made by her, but neither in the plaint nor in her testimony, did she offer any clarification in respect of that affidavit. The second appellate Court noted that the allegation of fraud had to be established by the petitioner No.1 which she had failed to do. Accordingly, the judgments and decrees dated 29.4.1989 and 14.9.1990 were found to be contrary to evidence of record and were, therefore, set aside. 12. The second appellate Court noted that the allegation of fraud had to be established by the petitioner No.1 which she had failed to do. Accordingly, the judgments and decrees dated 29.4.1989 and 14.9.1990 were found to be contrary to evidence of record and were, therefore, set aside. 12. The findings of the second appellate court could not be disputed or controverted by the learned counsel for the petitioners. The petitioners have not been able to demonstrate that the findings recorded by the second appellate court suffer from any perversity or lack of jurisdiction or patent arbitrariness that would merit interference in a writ petition. 13. This writ petition, lacking merit, is accordingly, dismissed.