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2024 DIGILAW 285 (ALL)

Shiv Pratap v. Board Of Revenue U. P. At Allahabad

2024-01-25

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1.Supplementary affidavit filed on behalf of the petitioners today, is taken on record. 2.Heard leaned counsel for the petitioners, Mr. Mridul Kumar, learned Standing Counsel for the State-respondent Nos.1, 2, 3 & 9, Mr. Azad Rai, learned counsel for respondent No.8-Gaon Sabha and Mr. Jitendra Kumar, learned Counsel for the Ceavator/ respondent No.6. 3. Brief facts of the case are that Suit under Section 229-B of Uttar Pradesh Zamindari Abolition and Land Reforms Act (hereinafter referred as to U. P. Z. A. & L. R. Act) was filed at the instance of Respondent No.6 before Sub Divisional Officer, Khaga, Fatehpur in respect to plot of Khata Nos. 107 and 158 situated in Mauja-Karmon, Pargana, Hathgaon, Tehsil Khaga, District Fatehpur impleading State, petitioners and others as defendant. Defendant filed their written statement denying plaint allegation. The issues were framed in the aforementioned suit and parties were permitted to lead their evidence in support of their cases. The parties adduced their evidences accordingly. Trial Court/ Sub Divisional Officer, Fatehpur-respondent No.3 vide judgment and decree dated 17.08.2021 decreed the planitiff's suit in respect of plot in dispute declaring plaintiff (Indrasen) be recorded along with legal heirs of Chandrasen as Co-tenure holder/bhumidhar with transferable rights. Against the judgment and decree dated 17.08.2021 defendants filed an appeal under Section 331 (3) of U. P. Z. A. & L. R. Act, which was dismissed by Additional Commissioner vide order dated 21.04.2022. Second Appeal filed by petitioner under Section 331 (4) of U.P.Z.A.& L.R. Act was heard and dismissed by Board of Revenue vide Judgment dated 10.07.2023. Hence this petition for the following reliefs: "(I) Issue a writ, order or direction in the nature of certiorari calling for the records and for quashing of the judgment and order dated 10.07.2023 passed by respondent No. 1 in Second Appeal No.901 of 2022 (Computerized Case Number AL2022022500901) Shiv Pratap and others vs Narendra and others contained as Annexure Number 1 to the writ petition. (II) Issue a writ, order or direction in the nature of certiorari for quashing of the judgment and order dated 21.04.2022 passed by respondent No. 2 in Case Number 811 of 2022 (Computerized Case Number C202102000000811) Ram Pratap and others vs Indrasen and others contained as Annexure No.2 to this writ petition. (II) Issue a writ, order or direction in the nature of certiorari for quashing of the judgment and order dated 21.04.2022 passed by respondent No. 2 in Case Number 811 of 2022 (Computerized Case Number C202102000000811) Ram Pratap and others vs Indrasen and others contained as Annexure No.2 to this writ petition. (III) Issue a writ, order or direction in the nature of certiorari for quashing of the judgment and order dated 17.08.2021 passed by respondent No.3 in Case Number RST/31/2007-08 (Computerized Case Number T200802250324) Indrasen and others vs State of U.P. and others contained as Annexure 3 to this writ petition. (IV) Issue a writ order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case." 4. Counsel for the petitioner submitted that suit under Section 229-B of U. P. Z. A. & L. R. Act filed by Plaintiff Indrasen was not maintainable as an unregistered will deed was executed in favour of Chandrasen (father of petitioners ) on 12.09.2002 by Jiyalal. He further submitted that unregistered will deed executed on 12.09.2002 was not cancelled by any court as such suit under Section 229-B of U. P. Z. A. & L. R. Act was not maintainable at the instance of the plaintiff Indrasen. He further submitted that plaintiff Indraseen is not in the possession of the plot in dispute as such suit under section 229-B of U. P. Z. A. & L. R. Act was not maintainable. He further submitted that in the mutation proceeding, the name of Chandrasen was ordered to be recorded in the revenue record on the basis of unregistered will deed in question. He further submitted that judgment and decree passed by trial court / First appellate court/ Second appellate court are illegal as such same are liable to be set aside and plaintiff's suit be dismissed. 5. On the other hand, Mr. Jitendra Kumar, learned Counsel for respondent No. 6 submitted that suit under section 229-B/209 of U. P. Z. A. & L. R. Act filed at the instance of respondent No. 6 Indrasen (plaintiff) was decreed in accordance with law framing issues in the suit and giving parties to lead the evidence in support of their cases. Jitendra Kumar, learned Counsel for respondent No. 6 submitted that suit under section 229-B/209 of U. P. Z. A. & L. R. Act filed at the instance of respondent No. 6 Indrasen (plaintiff) was decreed in accordance with law framing issues in the suit and giving parties to lead the evidence in support of their cases. He further submitted in respect of the unregistered will deed alleged to be executed in favour of Chandrasen the finding of fact has been recorded that Jiyalal has died on 14.07.2002 and the unregistered will deed was alleged to be executed on 12.09.2000 as such the will deed is forged. He further submitted that while deciding the suit, trial court has recorded specific findings of fact that plot in dispute are ancestral property of Jiyalal as such both sons of Jiyalal are entitled to be recorded as co-tenure holder. The unregistered will deed alleged to be executed by Jiyalal on 12.09.2000 is forged and fictitious. He further submitted that in view of findings of fact recorded by trial court on the basis of the evidence adduced by the parties, no interference is required against the judgment of trial court which has been maintained in appeal, as well as second appeal. He next submitted that order passed in the mutation proceeding in respect to unregistered will not come in the way of Plaintiff-Indrasen to establish his claim in accordance with law in suit for declaration. He further submitted that writ petition is liable to be dismissed. 6. I have considered argument advanced by learned counsel for the parties and peruse the record. 7. There is no dispute about the fact that suit under Section 229-B of U.P.Z.A.&L.R.Act filed by respondent No. 6-Indrasen-plaintiff was decreed by trial court declaring plaintiff as co-tenure holder of plot in dispute along with legal heirs of Chandrasen. There is also no dispute about the fact that judgment and decree passed by the trial court has been maintained in appeal by Additional Commissioner as well as in second appeal by Board of Revenue. 8. In order to appreciate the controversy involved in the matter, the perusal of the family pedigree of both parties will be relevant, which are as follows: 9. Perusal of the family decree reveals that Jiyalal had two sons, one was Chandrasen and another was Indrasen. 8. In order to appreciate the controversy involved in the matter, the perusal of the family pedigree of both parties will be relevant, which are as follows: 9. Perusal of the family decree reveals that Jiyalal had two sons, one was Chandrasen and another was Indrasen. Petitioners are sons of Chandrasen and plaintiff of the suit was Indrasen who was real brother of Chandrasen and under the order of the trial court, Indrasen was ordered to be recorded as co-tenure holder along with legal heirs of Chandrasen. 10. The findings of fact has been recorded by the trial court while decreeing the plaintiff's suit on issue No. 4 that unregistered will deed dated 12.09.2000 is forged and fictitious, as such defendants/ petitioners are not entitled to claim any relief on the basis of alleged unregistered will deed dated 12.09.2000. The findings of fact has also been recorded that Jiyalal had two sons, Chandrasen and and Indrasen and the property is ancestral property as such both sons of Jiyalal are entitled to 1/2 share each. The trial court has considered nature of the entry of plot in dispute as well as the documentary evidence adduced with respect to death of Jiyalal as well as oral evidence adduced by parties in the proceeding as such there is no illegality in the judgment passed by trial court which has been maintained concurrently by Additional Commissioner in appeal as well as Board of Revenue in second appeal. 11. Considering the finding of fact recorded by all three courts while deciding the suit under section 229-B/ 209 of U. P. Z. A. & L. R. Act, no interference is required against the impugned judgment. The writ petition is dismissed.