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2024 DIGILAW 892 (ALL)

Sursatiya v. Gujratiya

2024-03-21

CHANDRA KUMAR RAI

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JUDGMENT : (Chandra Kumar Rai, J.) 1. Heard Mr. Sunil Kumar Pandey, learned counsel for the petitioner, Mr. Dhirendra Kumar Srivastava, learned State Law Officer for the State-respondent and Mr. Pankaj Dubey, learned counsel for respondent No. 1. 2. Brief facts of the case are that one Ganesh son of Mahaveer was recorded owner of Plot No. 116 area 0.574 hectare, situated in Village Sudaya, Pargana-Pachotar, District Ghazipur, Plot No. 118 area 0.215 hectare situated in Village Khateerpur Khas, Pargana-Pachotar, District Ghazipur, Plot No. 45 Ka area 0.020 hectare, Plot No. 51 area 0.036 hectare, Plot No. 61 area 0.735 hectare, situated in village-Khateerpur Takiya, Pargana-Pachotar, District Ghazipur. Ganesh Son of Mahaveer expired in the year 2004. The family pedigree for Ganesh Son of Mahaveer will be relevant for the adjudication of the controversy involved in the matter, which is as under:- After death of Ganesh Son of Mahaveer, petitioner filed an application on 15.02.2005, under Section 34 of UP Land Revenue Act, 1901 for recording the name of petitioner along with Ram Avtar Son of Ganesh to the extent of 1/2 share. It is also material fact that mutation application of the petitioner was dismissed in default on 29.03.2005, however, on recall application dated 8.01.2007 filed by the petitioner, the order dated 29.03.2005 was set aside and recall application was accordingly allowed on 18.06.2007. The Naib Tehsildar vide final order dated 25.06.2007 ordered to record the name of petitioner and Ram Avtar Son of Ganesh. Respondent no. 1/Gujratiya wife of Ram Avtar filed a restoration application on 17.11.2007 against the orders dated 18.06.2007 and 25.06.2007 on the basis of registered will deed dated 22.07.2004 alleged to be executed by Ganesh in her favour. The Naib Tehsildar vide order dated 09.05.2008 set-aside the orders dated 18.06.2007 and 25.06.2007 and rejected the three applications filed by Sursatiya. The Naib Tahasildar also ordered vide order dated 09.05.2008 that objection shall be filed by parties to the restoration application of Sursatiya dated 06.01.2007/08.06.2007. Petitioner challenged the order dated 09.05.2008 by way of three appeals under Sections 210/211 of UP Land Revenue Act, as property in question are situated in three villages. The Additional District Magistrate Sadar, Gazipur, vide order dated 12.12 2013 dismissed all the three appeals on the ground that mutation matter is still to be decided on merit by Naib Tehsildar/Tehsildar under the order impugned in appeal. The Additional District Magistrate Sadar, Gazipur, vide order dated 12.12 2013 dismissed all the three appeals on the ground that mutation matter is still to be decided on merit by Naib Tehsildar/Tehsildar under the order impugned in appeal. Petitioner filed three revisions (Revision Nos. 43, 44 and 45) before the Commissioner against the appellate order dated 12.12.2013 passed in Appeal Nos. 16/58/, 17/57 & 20/56. Respondent no. 1/Smt. Gujratiya filed her mutation application (Case No. 257 Gujratiya vs. Ganesh) on the basis of will deed alleged to be executed on 22.07.2004, which was dismissed by Naib Tehsildar, vide order dated 06.12.2004, for want of prosecution. The order dated 06.12.2004 was subsequently set-aside and mutation suit filed by respondent no. 1 was restored to its original number by Naib Tahasildar vide order dated 29.01.2009. Petitioner filed two appeals before the Sub-Divisional Officer, which were dismissed vide order dated 12.12.2013. Against the order dated 12.12.2013 passed in Appeal No. 18/76 & 19/77, Revision Nos. 41 and 42 of 2013 were filed by petitioner before the Commissioner, Varanasi Division, Varanasi. All the five Revisions (Revision Nos. 41, 42, 43, 44, and 45 of 2013) were heard by Additional Commissioner-II, Varanasi Division, Varanasi, and the same were allowed vide order dated 03.09.2015 setting-aside the orders dated 12.12.2013, 09.05.2008 and 29.01.2009 as well as the order dated 25.06.2007 was affirmed. Against the order dated 03.09.2015 passed by Additional Commissioner, respondent no. 1 filed Revision Nos. 2815, 3072, 3073, 3074 and 3075 of 2015 before the Board of Revenue, UP, Lucknow. The aforementioned revisions were heard by learned member of Board of Revenue and the same were allowed vide order dated 30.01.2017. Hence, this writ petition on behalf of petitioner challenging the impugned order dated 30.01.2017 passed by Board of Revenue U.P. Lucknow. 3. This Court, vide order dated 15.5.2017, entertained the matter and granted interim protection staying the operation of order dated 30.01.2017 passed by Board of Revenue. In pursuance of the order dated 15.05.2017 parties have exchanged their pleadings. 4. Learned counsel for the petitioner submitted that Ganesh Son of Mahaveer was recorded Bhumidhar of plots in question and name of petitioner along with Ram Avtar Son of Ganesh was ordered to be recorded to the extent of 1/2 share on the basis of succession under Section 34 of the UP Land Revenue Act, which requires no further interference in exercise of summary jurisdiction. He further submitted that mutation application filed by respondent no. 1 on the basis of will deed dated 22.07.2004 cannot be entertained as the will deed set-up by respondent no. 1 is forged and fictitious. He further submitted that in respect to the will deed dated 22.07.2004, a Suit No. 2012 of 2007 for cancellation of will deed dated 22.07.2004, is pending before the civil court. He further submitted that Board of Revenue has passed cryptic order without assigning any reason in support of the order as such, the impugned order passed by Board of Revenue is liable to be set-aside. He further submitted that Board of Revenue is highest court in the Revenue side as such, the reason is to be assigned in support of the order passed by Board of Revenue. He further submitted that impugned order passed by Board of Revenue is liable to be set-aside and order dated 03.09.2015 passed by Additional Commissioner be affirmed. 5. On the other hand, learned counsel appearing for respondent No. 1 submitted that writ petition arises out of mutation proceedings as such, the same is not maintainable in view of ratio of law laid down by this court in the case reported in 2022 0 Supreme (All) 281 Kalawati vs. Board of Revenue & others. He further submitted that civil suit filed by petitioner for cancellation of will deed is pending before the civil court as such, no interference is required in the matter against the impugned order dated 30.01.2017 passed by Board of Revenue. He further submitted that will-deed dated 22.07.2004 executed in favour of respondent No. 1 can not be ignored unless the same is cancelled in accordance with law. 6. I have considered the arguments advanced by the learned counsel for the parties and perused the record. 7. There is no dispute about the fact that petitioner is claiming right on the basis of succession and respondent no. 1 is claiming right on the basis of will deed alleged to be executed in her favour on 22.07.2004. There is also no dispute about the fact that Civil Suit No. 2012 of 2007 filed for cancellation of will deed dated 22.07.2004 is pending before the civil court. 1 is claiming right on the basis of will deed alleged to be executed in her favour on 22.07.2004. There is also no dispute about the fact that Civil Suit No. 2012 of 2007 filed for cancellation of will deed dated 22.07.2004 is pending before the civil court. There is also no dispute about the fact that Additional Commissioner vide order dated 03.09.2015 allowed the revision filed by petitioner setting-aside the order impugned in the revision as well as rejecting the claim set-up by respondent no. 1 on the basis of will deed and affirmed the mutation order dated 25.06.2007. There is also no dispute about the fact that Board of Revenue, vide order dated 30.01.2017 has allowed the revision and remanded the matter before the court concerned for disposal of mutation case on merit. 8. In order to appreciate the controversy involved in the matter the perusal of the order dated 3.9.2015 passed by Additional Commissioner will be relevant, which is as under:- 9. The perusal of finding of fact recorded by the Additional Commissioner fully demonstrate that Additional Commissioner has properly exercised the jurisdiction, while allowing the Revision filed by the petitioner and affirming the order of mutation dated 25.06.2007 passed by Naib Tehsildar for recording the name of petitioner as well as Ram Avtar Son of Ganesh for 1/2 share each. The perusal of the order further demonstrate that claim set-up by respondent no. 1 on the basis of will deed in question has been rejected. 10. The Board of Revenue while exercising the Revisional Jurisdiction have not mentioned any fact or any reason in support of the order rather only mentioned that “Revision allowed and matter is remanded to lower Court for disposal on merit in three months”. Order of Board of Revenue is cryptic order, as such the same cannot be sustained in the eye of law. There is no reason in the impugned order that why the revisions have been allowed and the matters have been sent back for fresh decision of mutation case. It is not expected from the Board of Revenue to pass such type of order exercising the Revisional Jurisdiction. The order passed by Additional Commissioner dated 03.09.2015 is just and proper order. There is no reason in the impugned order that why the revisions have been allowed and the matters have been sent back for fresh decision of mutation case. It is not expected from the Board of Revenue to pass such type of order exercising the Revisional Jurisdiction. The order passed by Additional Commissioner dated 03.09.2015 is just and proper order. The Civil Suit No. 2012 of 2007 is pending before the Civil Court as such, the order dated 03.09.2015 passed by Additional Commissioner shall be subject to the adjudication of the dispute by Civil Court in Suit No. 2012 of 2017. 11. Considering the entire facts and circumstances of the case, the impugned order dated 30.01.2017 passed by Board of Revenue U.P. Lucknow, in Revision Nos. 2815/L.R/ 2015, 3072, 3073, 3074 and 3075 of 2015 are liable to be set-aside and the same are hereby set aside. 12. Writ petition stands allowed. The order dated 03.09.2015 passed by Additional Commissioner II, Varanasi Division Varanasi, is hereby affirmed, which shall be subject to the adjudication of the dispute by civil court in Suit No. 2012 of 2007.