Research › Search › Judgment

Uttarakhand High Court · body

2024 DIGILAW 401 (UTT)

Ashwani Kumar v. Ashok Kumar

2024-06-11

RAKESH THAPLIYAL

body2024
JUDGMENT : Rakesh Thapliyal, J. 1. By the present writ petition, the petitioners are challenging the judgment and order passed by the Board of Revenue dated 27.03.2024, passed in Revision No. 30 of 2022-23, Ashwani Kumar and Another Vs. Ashok Kumar and others, whereby the Board of Revenue directed that no sale and purchase of the property in question shall take place during the pendency of the Application filed under Section 5 of the Limitation Act. 2. Brief facts of the case are that the father of the petitioners was the owner of the property bearing Khata-khatauni No. 482, 480 and 47 admeasuring 0.8200 hec., situated at Mauza Gang Babagarh, Tehsil Vikas Nagar, District Dehradun. By virtue of a registered Will dated 24.08.2017, the father of the petitioners had bequeathed the said property to the petitioners and subsequently, the father of the petitioners died on 24.11.2017. The copy of the registered Will dated 24.08.2017 is enclosed as Annexure-1. 3. On the basis of the Will dated 24.08.2017, a mutation proceeding was initiated by the petitioners, registered as Case No. 1026 of 2017-18 in the Court of Tehsildar, Vikas Nagar, District Dehradun and the said mutation proceedings was concluded and the mutation application was allowed by order dated 26.03.2018 and pursuant thereto, the name of the petitioners were duly entered in the revenue records. 4. The respondents herein are the brothers of the petitioners and it is stated that due to the cruel behaviour of the respondents towards their father no share was given to them over the property in question which was bequeathed by the petitioners’ father pursuant to the Will dated 24.08.2017. 5. It is submitted that thereafter the petitioners have executed a gift deed dated 12.12.2018 in favour of their brothers in respect of certain portion of the land in which, there is specific mention of the revenue entries with respect to the aforesaid land which were given to them pursuant to the Will dated 24.08.2017. The gift deed dated 12.12.2018 is also enclosed as Annexure-3 to the writ petition. 6. It is submitted that pursuant to the gift deed dated 12.12.2018, the names of the respondents, who are the bothers of the present petitioners were also duly mutated in the revenue records vide order dated 30.01.2019. 7. The gift deed dated 12.12.2018 is also enclosed as Annexure-3 to the writ petition. 6. It is submitted that pursuant to the gift deed dated 12.12.2018, the names of the respondents, who are the bothers of the present petitioners were also duly mutated in the revenue records vide order dated 30.01.2019. 7. Learned counsel for the petitioners submits that the ill intention of the respondents, who are the brothers of the petitioners as reveals from the fact that they filed an application for recall of order dated 26.03.2018, which was passed in Mutation Case No. 1026 of 2017-18 before the Tehslidar, Vikas Nagar, District Dehradun, pursuant to which the names of the petitioners were duly recorded in the revenue record by virtue of Will dated 24.08.2017 in place of their father. Along with the said application for recall of order dated 26.03.2018 under Section 201 of U.P.L.R. Act, an application was also filed under Section 5 of the Limitation Act. 8. On the said application, preferred by the respondents under Section 201 of the Lad Revenue Act, the Tehsildar, Vikas Nagar, District Dehradun passed an order dated 24.01.2023 and stayed the effect and operation of the order 26.03.2018 on the basis of which the names of the petitioners were recorded in the revenue records and parties were directed not to create any third party interest over the property in question. Simultaneously, by this order, the notices were also issued to the petitioners. 9. Being aggrieved with the order dated 24.01.2023, passed by the Tehsildar, Vikas Nagar, District Dehradun, the petitioners herein preferred a Revision before the Board of Revenue under Section 219 of the Land Revenue Act, bearing Revision No. 30 of 2022-23 on 03.02.2023 and the Board of Revenue by order dated 27.03.2024 set aside the order passed by the Tehsildar, Vikas Nagar, District Dehradun dated 24.01.2023 and remit the matter back to the Court of Tehsildar with the direction to decide the Delay Condonation Application preferred under Section 5 of the Limitation Act first, after giving opportunities to the parties on merit. 10. While remanding the matter to Tehsildar by order dated 27.03.2024, the Board of Revenue also restrained the petitioners sale and purchase of the property in question till the disposal of the application preferred under Section 5 of the Limitation Act. 11. 10. While remanding the matter to Tehsildar by order dated 27.03.2024, the Board of Revenue also restrained the petitioners sale and purchase of the property in question till the disposal of the application preferred under Section 5 of the Limitation Act. 11. Learned counsel for the petitioners submits that the order passed by the Board of Revenue dated 27.03.2024 is against the law so far as it relates to the imposition of restrictions of sale and purchase of the property in question. He submits that the Board of Revenue, without there being any power vested in law passed such a restraining order till the disposal of the Delay Condonation Application, which is against the well established principle of law. 12. Learned counsel for the petitioners submits that the Revisional Court passed the order by ignoring this aspect that it is only a party to a case, who can also apply for restoration under Section 201 of U.P. L.R. Act and third party has no locus to move an application under Section 201 of the Land Revenue Act. 13. He further submits that the order which was sought to be recalled was passed in a mutation case in which the respondents were not party and therefore the application filed under Section 201 of the U.P.L.R. Act is not maintainable. 14. Apart from this, learned counsel for the petitioners submits that respondents have not filed any suit for cancellation of registered Will dated 24.08.2017 and they had full knowledge of the order dated 26.03.2018 which also finds mention in the gift deed dated 12.12.2018 executed in their favour and therefore the application filed under Section 201 of U.P.L.R. Act, 1901 was malafide and passing of orders, restraining the sale and purchase is unjustified and illegal and hence liable to be set aside. 15. Learned counsel for the petitioners further submits that restraining order passed by the Board of Revenue for restraining sale and purchase of the property in question till the pendency of application preferred under Section 5 of the Limitation Act seems to be an afterthought since in the second last line of the judgment, a sign of plus is indicated and at the bottom of the judgment, the endorsement has been made with regard to imposition of restriction of sale and purchase which are against the judicial discipline and have been passed for ulterior motives. 16. 16. I perused the order passed by the Board of Revenue as well as the order passed by the Tehsildar dated 24.01.2023. 17. First of all, the respondents are the real brothers of the petitioners and they have filed an application under Section 201 of L.R. Act along with Delay Condonation Application for recalling of the order passed in mutation proceedings and while issuing notices on the said application, the Tehsildar restrained the petitioners from creating any third party interest. 18. Keeping in view the fact that until and unless the property is protected, the purpose for keeping the application under Section 201 of the Land Revenue Act for adjudication is of no use, therefore, I do not find any illegality in the order passed by the Tehsildar, whereby on an application moved by the respondents under Section 201 of the Land Revenue Act, the notices have been issued to the petitioners and the restriction as imposed for sale and purchase is only in order to protect the property so that the application moved under Section 201 of L.R. Act be decided on its own merit. The petitioners cannot say that they are seriously prejudiced with this order. 19. So far as the order passed by the Boar of Revenue is concerned, the Board of Revenue remanded the matter back to the Tehslidar to first decide the application under Section 5 of the Limitation Act and the petitioners, as it appears, are not aggrieved to the part of the said order; however, the petitioners are only aggrieved with the subsequent part of the order passed by the Board of Revenue, whereby the restrictions as imposed by the Tehsildar was maintained till the disposal of application preferred under Section 5 of the Limitation Act. 20. In my opinion, the order passed by the Board of Revenue is just and proper and it will not cause any prejudice to the petitioners and once the matter is remanded back to the Tehsildar to decide the application preferred under Section 5 of the Limitation Act, the Board of Revenue has rightly passed the restraining order till the disposal of the application preferred under Section 5 of the Limitation Act, so the petitioners may not create any third party interest by selling the property in question. The restrain order is just and proper otherwise whole purpose of remanding the matter is of no use. 21. The restrain order is just and proper otherwise whole purpose of remanding the matter is of no use. 21. This aspect cannot be ignored that the respondents are the real brothers of the petitioners and the claim of the petitioners are based on the Will executed by their father. However, at this stage, this Court does not think it proper to give any opinion on the merit of the case; however, so far as the restrictions as imposed by the Tehsildar, as well as by the Board of Revenue are concerned, this Court does not find any illegality and it cannot be presumed that the petitioners are seriously prejudiced and the petitioners have all rights and opportunity to defend themselves while deciding the application filed by the respondents under Section 201 of the L.R. Act along with the application under Section 5 of the Limitation Act. 22. Therefore, I do not find any merit in the petition and the same is dismissed being devoid of merit. 23. No order as to costs.