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2024 DIGILAW 759 (ALL)

Gulam Mursaleen v. State of U. P.

2024-03-11

CHANDRA KUMAR RAI

body2024
JUDGMENT Chandra Kumar Rai, J. Heard Mr. Iqbal Ahmad, learned counsel for the petitioner, Mr. B.D. Mishra, learned counsel for respondent nos. 6 to 10, Mr. Mahesh Narayan Mishra, learned Addl. C.S.C. for the state-respondents and Mr. Siraj Hamad Khan, learned counsel for respondent nos. 13 & 14. 2. Brief facts of the case are that dispute relate to succession of one Mahmudul Hasan who expired on 29.10.2017. Respondent nos. 6 & 7 filed an application under Sections 34/35 of the U.P. Revenue Code, 2006 before the Tehsildar, Sirathu, District Kaushambi for recording of their names on the basis of succession. Respondent no.4/Naib Tehsildar vide order dated 14.8.2018, allowed the application filed by respondent nos. 6 & 7 and directed to record the names of respondent nos. 6 & 7 along with Smt. Sarvat Ara, wife of Mahmudul Hasan (petitioner's father), expunging the name of Mahmudul Hasan from the plots of khata nos.191, 192, 189, 188, 176, 1270, 742, 663, 662, 661, 660, 659, 658, 657, 655, 656, 748, 612 and 769 situated in village Sirathu, Pargana Kada, Tehsil Sirathu, District Kaushambi. Against the order of Tehsildar dated 14.8.2018, petitioner filed an appeal before the S.D.O. which was registered as Appeal No.60/2018. Respondent no.3/S.D.O., vide order dated 29.10.2018 allowed the appeal, setting aside the order of the Tehsildar dated 14.8.2018 and remanded the matter back before the Tehsildar to decide the mutation case afresh. Against the order dated 29.10.2018, respondent nos. 6 & 7 filed a revision under Section 210 of the U.P. Revenue Code, 2006 which was registered as Revision No.3298/2018 and the same was allowed by the Board of Revenue vide order dated 4.9.2019, setting aside the order of the S.D.O. dated 29.10.2018. Against the order dated 4.9.2019, petitioner filed a recall application before the Board of Revenue along with stay application. The Board of Revenue vide order dated 9.1.2020 rejected the recall application filed by the petitioner. Respondent no.14/Sakia Bano filed Writ B No.2898/2019 before this Court against the revisional order dated 4.9.2019 which was dismissed by this Court vide order dated 5.12.2019 with observation that petitioner has a remedy to institute the appropriate proceeding for declaration of her right. The instant writ petition has been filed on behalf of the petitioner, challenging the impugned order dated 9.1.2020, passed by the Board of Revenue, rejecting the Recall Application No.2635/2019 filed against the order dated 4.9.2019. 3. The instant writ petition has been filed on behalf of the petitioner, challenging the impugned order dated 9.1.2020, passed by the Board of Revenue, rejecting the Recall Application No.2635/2019 filed against the order dated 4.9.2019. 3. This Court vide order dated 5.1.2021 entertained the matter and directed the respondents to file counter affidavit in the mater within a period of 3 weeks. In compliance of the order dated 5.1.2021, counter affidavit has been filed on behalf of respondent nos.6 to 10. Petitioner has filed his rejoinder affidavit also. 4. Counsel for the petitioner submitted that petitioner and respondent no.14 along with other, are born from second wife of Mahamudul Hasan, as such, they are also entitled to be recorded along with respondent nos.6 to 10. He further submitted that against the mutation order, passed by the Naib Tehsildar, appeal filed by the petitioner was allowed and the matter was remanded back before the Tehsildar to decide the mutation case afresh, as such, revision against the remand order passed in the appeal, was not maintainable. He further submitted that in revision, fraud was committed and without any notice/opportunity of hearing to the petitioner, the revision has been allowed and remand order passed in appeal, has been set aside. He also submitted that the recall application filed against the revisional order, has been dismissed in arbitrary manner. He further submitted that both the parties are claiming right on the basis of succession, as such, claim of petitioner cannot be negated in arbitrary manner and without affording opportunity of hearing to the petitioner. He further submitted that the order dated 4.9.2019, passed by the Board of Revenue is totally ex parte against the petitioner, as such, the impugned order, rejecting the recall application, filed by the petitioner be set aside and the matter be remanded back before the Board of Revenue to decide the revision afresh, after notice/opportunity of hearing to the petitioner as well as conducting an enquiry in the matter regarding filing of vakalatnama in the judicial proceeding before the Board of Revenue which has resulted into passing of the revisional order against the petitioner. He further placed reliance upon the judgment of the Hon'ble Apex Court and this Court reported in (2022) 1 RD 431, Kari Naimuddin v. Pargana Adhikari, 1996, Alld C.J. 1279, Indian Bank v. Satyam Fibres (India) Pvt. Ltd. and 2022, Alld C.J. 2033, My Palace Mutuvally Aided Cooperative Society v. B. Mahesh and others in support of his argument on the point of fraud and forgery in judicial proceeding. 5. On the other hand, learned counsel appearing for respondent nos. 6 to 10 submitted that mutation order was passed in accordance with the law by respondent no.4 for recording the names of respondent nos. 6 & 7 as petitioner along with respondent no.14 are not legal heir of deceased. He further submitted that the remedy against the order of Naib Tehsildar is in regular suit rather contesting the mutation proceeding for unlimited period. He also submitted that the Board of Revenue has rightly set aside the remand order passed in appeal as further remand to the Tehsildar court will be nothing rather the same will be the abuse of process of law. He also submitted that respondent no.14/Sakia Bano has already filed a writ petition before this Court against the main order of Board of Revenue dated 4.1.2019 which was dismissed by this Court with observation that regular proceeding of suit can be initiated by the petitioner, as such, there is no question of recalling the order dated 4.1.2019 which has already been affirmed by this Court while dismissing Writ B No.2898/2019. He further submitted that writ petition arises out of mutation proceeding under Section 34 of the U.P. Land Revenue Act, as such, the same is not maintainable in view of the ratio of law laid down by this Court in the case reported in Smt. Kalawati v. Board of Revenue and Others, reported in (2022) 155 R. D. 169. 6. I have considered the arguments advanced by learned counsel for the parties and perused the records. 7. There is no dispute about the fact that the mutation proceeding initiated by respondent nos. 6 & 7, under Section 34 of the U.P. Land Revenue Act, 1901 has been allowed by the Naib Tehsildar for recording the name of respondent nos. 6 & 7 along with Smt. Sarvat Ara, wife of Mahmudul Hasan, on the basis of succession. 7. There is no dispute about the fact that the mutation proceeding initiated by respondent nos. 6 & 7, under Section 34 of the U.P. Land Revenue Act, 1901 has been allowed by the Naib Tehsildar for recording the name of respondent nos. 6 & 7 along with Smt. Sarvat Ara, wife of Mahmudul Hasan, on the basis of succession. There is also no dispute about the fact that the order of the Naib Tehsildar dated 14.8.2008 has been set aside and the matter has been remanded back for fresh consideration of the dispute but in revision, the Board of Revenue has set aside the appellate order and maintained the order dated 4.8.2018. There is also no dispute about the fact that the recall application filed by the petitioner, has been rejected under the impugned order dated 9.1.2020. There is also no dispute about the fact that Writ B No.2898/2019 filed by respondent no.14 has been dismissed by this Court against the main revision order dated 4.9.2019. 8. In order to appreciate the controversy involved in the matter, perusal of the order passed by the Naib Tehsildar will be relevant which is quoted hereunder:- 9. The perusal of the order passed by the Naib Tehsildar reveals that jurisdiction under Section 34 of the U.P. Land Revenue Act has been rightly exercised by the Naib Tehsildar. The S.D.O. in appeal has further remanded the matter for fresh consideration of mutation dispute but in revision the Board of Revenue has set aside the remand order and maintained the order of the Naib Tehsildar. 10. It is also material that against the order of the Board of Revenue dated 4.9.2019, Writ B No.2898/2019 filed by respondent no.14 who is daughter of Mahmudul Hasan, sister of petitioner, has been dismissed by this Court, maintaining the revisional order dated 4.9.2019., as such, it will not be proper to remand the matter back to the Board of Revenue to decide the recall application filed by the petitioner against the order dated 4.9.2019 as well as set up enquiry regarding forgery alleged to be committed in the revisional proceeding. 11. 11. It is material that Petitioner alongwith Smt. Alia Bano, Maroofa Bano, Zikara Bano & Shakiya Bano have already filed a Suit No - T202002420400404 of 2020 (Smt. Aliya Bano & others v. Sarwat Ara & others) under Section 144 of U.P. Revenue Code, 2006 before Sub Divisional Officer for recording of their names along with respondent Nos. 6 & 7 which is admittedly pending before Court concern (Paragraph No-34 of the Counter affidavit dated 31.1.2022 filed on behalf of respondent No - 6 to 10 as well as paragraph No. 9 of the written argument dated 26.2.2024 filed by petitioner). 12. It is further material that Respondent No -14/Shakiya Bano has also filed a Civil Suit No. 78 of 2020 before Civil Court for declaration of her right alongwith petitioner & injunction which is pending before Civil Court (Paragraph No-35 of the Counter affidavit dated 31.1.2022 filed on behalf of respondent Nos. 6 to 10). 13. The Naib Tahasildar has rightly exercised the jurisdiction under Section 34/35 of U.P. Revenue Code 2006 and regular Suit are pending before revenue court as well as Civil Court at the instance of petitioner alongwith respondent Nos. 11 to 14, as such, no further inquiry is required to be conducted with respect to the revisional proceeding taken place before board of revenue as the revisional order dated 4.9.2019 has been maintained by this Court by dismissing the writ petition filed by respondent No. 14/ Shakiya Bano. The case law cited by learned Counsel for the petitioner are not applicable in the instant matter due to the fact & circumstances mentioned above. 14. Considering the fact that the writ petition filed by respondent no.14/Shakiya Bano against the main order dated 4.9.2019, passed by the Board of Revenue in revision, has been dismissed and suit for declaration are pending before Civil Court as well as revenue Court, no further interference is required in the matter against the impugned order dated 9.1.2020, passed by the Board of Revenue, rejecting the recall application dated 6.2.2019 filed in Revision No.3298/2018. 15. The writ petition is accordingly dismissed. 16. Needless to say that the order passed in the mutation proceeding, will not come in the way of the petitioner to establish his claim in regular proceeding in accordance with law.