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2024 DIGILAW 224 (ALL)

Deo Nayak v. Board of Revenue U. P.

2024-01-19

SAURABH LAVANIA

body2024
JUDGMENT Saurabh Lavania, J. Heard Sri Mohammad Arif Khan, learend Senior Advocate assisted by Shri Mohammad Aslam Khan, learned counsel for the petitioner, Ms. Deepshikha, learned Chief Standing Counsel and Shri Hemant Kumar Pandey, learned Standing Counsel for State-respondents no. 1 to 3, Shri Mohan Singh, learned counsel for Gaon Sabha and and Sri Avneesh Kumar Shukla, learend counsel for caveator/Ram Swaroop. 2. In view of order proposed to be passed this Court is of the view that no prejudice would be caused to the respondent no. 4, who is the real brother of respondent no. 5/Ram Swaroop and on whose behalf admittedly an application with a prayer to recall of final order dated 20.08.2007 passed in the case instituted under Section 229B of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (in short "Act of 1950") and restore the same to its original number was filed by the respondent no. 5 and to the view of this Court even on appearance the respondent no. 4 would not be in position to dispute the facts and in view of the order proposed to be passed the matter would be heard and decided on merits and accordingly, the notice to respondent no. 4 is dispensed with and with the consent of the Counsel for the parties who are present before this Court this petition is being decided at admission stage. 3. By means of the present petition, the petitioner has assailed the order dated 07.12.2023, certified copy of which is Annexure No. 15 to the petition, passed by the respondent no. 1/Member (Judicial), Board of Revenue at Lucknow in Case No. REV/1862/2023/Sultanpur, Computerized Case No. R20230468001862, (Deo Nayak v. Ram Swaroop). Under challenge is also the order dated 28.06.2023, certified copy of which is Annexure No. 14 to the petition, passed by the respondent no.2/Commissioner, Ayodhya Division, Ayodhya in the Case No. 01296 of 2020, Computerized Case No. C202004000001296 (Ram Swaroop v. Deo Nayak). 4. Both the orders were passed in the revision instituted under Section 333 of the Act of 1950. 5. The Revision No. 01296 of 2020 was filed by the respondent no. 4. Both the orders were passed in the revision instituted under Section 333 of the Act of 1950. 5. The Revision No. 01296 of 2020 was filed by the respondent no. 5 assailing the order dated 23.11.2020 which was passed by the revenue Court of first instance namely Sub Divisional Magistrate, Baldirai, Sultanpur (in short "SDO") in a suit instituted under Section 229B of the Act of 1950 registered as Case No. 17/88/2009-2010, Computerized Case No. 20100468656 (Deo Nayak v. Gaon Sabha) and in this revision, the order dated 28.06.2023 was passed. 6. Being aggrieved by the order dated 28.06.2023, the petitioner -Deo Nayak, who was opposite party in the Revision No. 01296 of 2020, filed the revision before Board of Revenue registered as Case No. REV/1862/2023/Sultanpur. 7. Brief facts of the case which are relevant for the disposal of the writ petition are to the effect that based upon the plea of adverse possession, a suit was instituted under Section 229B of the Act of 1950 by the petitioner for declaration of his rights over Gata No. 981/Area 0.444 hectare sitauted at Village- Kutta, Pargana - Baronsa, Tehsil- Baldirai, District- Sultanpur and the suit, thereafter, was decreed on 20.08.2007 in terms of the compromise by the SDO. 8. Thereafter, an application dated 21.12.2009 for restoration of case was preferred on 21.12.2009 before SDO by respondent no. 5/Ram Swaroop and this application dated 21.12.2009, application for restoration of the case, was allowed vide order dated 15.04.2010 by SDO. 9. Being aggrieved by the order dated 15.04.2010 passed by SDO, an application for recall of order dated 15.04.2010 was filed by the petitioner and it appears from the record that SDO rejected the said application for want of prosecution vide order dated 21.01.2013 and the same was restored vide order dated 17.02.2014 passed by SDO. 10. Thereafter, the application for recall of order dated 15.04.2010, whereby the case/suit was restored, was allowed vide order dated 23.11.2020 passed by SDO. The operative portion of the order dated 23.11.2020 reads as under: 11. A perusal of the above quoted operative portion of the order dated 23.11.2020 passed by SDO indicates that the application preferred by the petitioner dated 28.01.2020 was allowed and the ex-parte order dated 15.04.2010 was set aside and the application dated 21.12.2009 for recall of order dated 20.08.2007 preferred by the respondent no. A perusal of the above quoted operative portion of the order dated 23.11.2020 passed by SDO indicates that the application preferred by the petitioner dated 28.01.2020 was allowed and the ex-parte order dated 15.04.2010 was set aside and the application dated 21.12.2009 for recall of order dated 20.08.2007 preferred by the respondent no. 5 was rejected and the final order dated 20.08.2007 was restored. 12. Respondent no. 5 being aggrieved by the order dated 23.11.2020 passed by the SDO preferred a revision registered as Case No. 01296 of 2020. The respondent no.2/Revisional Authority after taking note of the entire facts and circumstances of the case as also the judgment(s) passed in the case(s) reported in 2019(142) RD 676 , 2018 (139) RD 734 and 2019 (143) RD 274, allowed the revision filed by the respondent no. 5 vide order impugned order dated 28.06.2023. 13. The petitioner being aggrieved by the order dated 28.06.2023 passed by the respondent no. 2 filed the revision registered as Case No. REV/1862/2023/Sultanpur. The respondent no. 1/Member (Judicial), Board of Revenue at Lucknow dismissed the revision and upheld the impugned order dated 28.06.2023. 14. From the arguments advanced by learned counsels for the contesting parties, the only issue which is relevant for disposal of the present petition is to the effect that as to whether the suit instituted by the petitioner after interference in the order dated 23.11.2020 passed by SDO, whereby the order dated 15.04.2010 by which the case/suit was restored to its original number was set aside, the suit is required to be adjudicated on merits. 15. On the aforesaid, this Court finds it appropriate to reproduce operative portion of the order dated 28.06.2023 as also the order dated 07.12.2023. (a) Operative portion of order dated 28.06.2023 In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. The plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. (b) Operative portion of order dated 07.12.2023 16. From the order dated 28.06.2023 passed by respondent no. 2/Commissioner, Ayodhya Division, Ayodhya, it is evident that after interfering in the order dated 23.11.2020, the authority concerned has not remanded the matter back to the revenue Court of first instance namely Sub Divisional Magistrate concerned to decide the suit instituted by the petitioner on merits and it further appears that the matter/paperbook was ordered to be placed before the trial Court i.e. the revenue Court of first instance namely namely SDO concerned for expunging the name of the petitioner from revenue records and entering of the name of the respondent no. 5 in the same. 17. From the order dated 07.12.2023 passed by respondent no. 5 in the same. 17. From the order dated 07.12.2023 passed by respondent no. 1/Board of Revenue U.P., Lucknow, it is also apparent that the suit instituted by the petitioner would not be adjudicated on merits though the suit which was initially decreed on 20.08.2007 in terms of compromise. 18. At the cost of repetition, it would be apt to indicate that vide order dated 15.04.2010 passed by SDO, the case/suit under Section 229B of the Act of 1950 decreed/decided in favour of the petitoiner vide order dated 20.08.2007 in terms of compromise, was restored and vide order dated 23.11.2020 passed by SDO the order dated 15.04.2010 was recalled and vide impugned order dated 28.06.2023 passed by the respondent no. 2, affirmed vide order dated 07.12.2023 passed by the respondent no. 1, the order dated 23.11.2020 has been set aside. Thus, to the view of this Court, the effect of the order dated 28.06.2023 would be that suit is now to be heard and decided on merits. 19. For the reasons aforesaid, this Court finds that the order(s) dated 28.06.2023 and 07.12.2023 are liable to be interfered with only to the extent that the suit be heard and decided on merits strictly as per law and after providing full opportunity of hearing to the parties concerned. 20. Accordingly, the present writ petition is party allowed. A writ of certiorari is issued quashing and setting the aside the order(s) dated 28.06.2023 and 07.12.2023, certified copies of which are Annexure Nos. 14 and 15 to the petition, respectively. The suit is restored to its original number. The revenue Court of first instance i.e. SDO concerned is directed to decide the suit in issue on merits. 21. Further, in the interest of the parties concerned, it is provided that till disposal of the suit in issue, the land/property in issue shall not be transferred nor alienated nor any charge shall be created over the same and for this protection, learned counsel for the contesting parties have no objection. 22. It is expected from the revenue Court of first instance i.e. Sub Divisional Magistrate, Baldirai, Sultanpur that he should make all endeavour to conclude the proceedings as early as possible. It is for the reason that the suit in issue was instituted way back in the year 2004 and the dispute has not been concluded till date. 23. 22. It is expected from the revenue Court of first instance i.e. Sub Divisional Magistrate, Baldirai, Sultanpur that he should make all endeavour to conclude the proceedings as early as possible. It is for the reason that the suit in issue was instituted way back in the year 2004 and the dispute has not been concluded till date. 23. It is made clear that this Court has not examined the case of either party on merits and the Authority concerned shall be free to decide the matter strictly in accordance with law.