Allahabad High Court
Man Singh vs Board Of Revenue And 4 Others on 12 October, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 22.09.2022 Court No. - 52 Delivered on 12.10.2022 Case :- WRIT - B No. - 47327 of 2013 Petitioner :- Man Singh Respondent :- Board Of Revenue And 4 Others Counsel for Petitioner :- Abhishek Kumar,Dr.Shrinarayan Singh Yada Counsel for Respondent :- C.S.C.,Arun Kumar,M.Sarwar Khan,Manoj Kumar Yadav,Ram Sajiwan Prajapati,Ramakant Tiwari,Umesh Chandra Tiwari Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Abhishek Kumar, Counsel for the petitioner, Mr. Alok Sharma, Advocate, holding brief of Mr. Ram Sajiwan Prajapati and Mr. Rama Kant Tiwari, Counsel for respondent No.3 as well as learned Standing Counsel for respondent Nos.1 and 2.
2. The brief facts of the case are that Lalla Prasad had three marriages in his life time. His first wife was Dhankali. Contesting respondent No.3- Daljeet was born from wedlock of Lalla Prasad and Dhankali. After one year of marriage Dhankali left the house of her husband accordingly Lalla Prasad solemnized his second marriage with Gaura Devi and from the wedlock of Lalla Prasad and Gaura Devi two daughters Heerawati and Bhanwati were born, who are married. Second wife Gaura died in the life time of Lalla Prasad accordingly Lalla Prasad was married with Champa @ Chameli and from the wedlock of Lalla Prasad and Champa @ Chameli, petitioner Man Singh was born. Lalla Prasad died on 23.08.2004 and after the death of Lalla Prasad, name of petitioner and respondent No.3 were recorded by the Registrar Kanoongo vide order dated 31.03.2004 in the place of Lalla Prasad in respect to village-Sidhwa and in respect to village-Mayee report under Section 34 of U.P. Land Revenue Act was filed by respondent No.3 that his name solely be recorded in the place of deceased Lalla Prasad, the cases were consolidated and registered as Case No.333 before Tehsildar (Judicial) Mariyahoo, Jaunpur, both parties adduced oral and documentary evidence in support of their cases. Tehsildar after considering the evidences adduced by both parties in detail has held vide order dated 10.07.2007 that petitioner and respondent No.3 are sons of Lalla Prasad and rejected the mutation application filed by respondent No.3 to record his name solely in the place of Lalla Prasad, the order of Registrar Kanoogo dated 31.03.2004 was maintained. Against the order dated 10.07.2007 respondent No.4 filed Revision No.380 of 2007 before Commissioner, the petitioner and respondent No.3 were impleaded as opposite parties in the revision who have contested the proceeding of revision, respondent No.3 has prayed before Additional Commissioner that revision of respondent No.4 be allowed, the Additional Commissioner vide order dated 25.02.2011 dismissed the revision filed by respondent No.4 and maintained the order of Tehsildar dated 10.07.2007. Against the order dated 10.07.2007 respondent No.3 filed an appeal under Section 210 of U.P. Land Revenue Act before Sub Divisional officer and the pandency of the revision against the same impugned order dated 10.07.2007 was brought to the notice of appellate Court (Sub Divisional officer) but appellate court vide order dated 21.03.2013 allowed the appeal filed by respondent No.3 set aside the order dated 10.07.2007 and remanded the matter for fresh decision by Tehsildar. Petitioner challenged the appellate order dated 21.03.2013 through revision under Section 333 of U.P.Z.A. & L.R. Act before respondent No.1, the revision was dismissed by respondent No.1 vide order dated 03.06.2013 hence this writ petition on behalf of petitioner.
3. This Court at the time of admission after hearing counsel for the petitioner as well as respondent No.3 passed the detailed interim order dated 06.09.2013 which is as follows:
"Heard Shri Abhishek Kumar, learned counsel for the petitioner and Shri Sarwar Khan, learned counsel for respondent no.3.
Issue notice to respondent no.4 returnable at an early date. Steps within 10 days.
Shri Manoj Kumar Yadav has accepted notice on behalf of respondent no.5 and learned Standing Counsel has accepted notice on behalf of respondents No.1 and 2. Learned counsel is permitted to implead the concerned Tehsildar as Respondent No.6 on whose behalf also the learned standing counsel shall seek instructions.
An order came to be passed by the Tehsildar in relation to mutation of the holding on 10th July 2007, whereby the petitioner and respondent no. 3 Daljeet were both treated to be sons of the deceased tenure holder Lalla Prasad. Aggrieved the respondent no.3 filed an appeal contending that the petitioner is not the son of Lalla Prasad.
According to the pedigree as disclosed at page 30 of the paper book one Smt. Manbhawati, one of the daughters of late Lalla Prasad filed a revision against the order dated 10.7.2002 before the Additional Commissioner under SEction 2/9 of the 1901 Act for setting aside the order. The respondent no.3 Daljeet also contested the said revision and conceded that the order dated 10.7.2007 deserves to be set aside and he will have no objection to the same. This was obviously done because the respondent no.3 had also filed an appeal against the same order under SEction 210 of the 1901 Act which was pending before the Sub-Divisional Officer.
The revisional authority after assessing the entire evidence that had been considered by the Tehsildar recorded its own findings by reciting that the petitioner and the respondent no.3 are brothers and are sons of the same father namely Lalla Prasad. The revision was allowed on 25.2.2011.
It is, therefore, obvious that respondent no.3 was a party to the said proceedings before the learned Commissioner where this finding was recorded.
During the pendency of the appeal, this fact of the order of the Commissioner dated 25.2.2011 was brought to the notice of the Sub-Divisional Officer who was hearing the appeal filed by respondent no.3. The Sub-Divisional Officer without recording any finding with regard to the impact of the said order of the learned Commissioner has allowed the appeal and has set aside the order dated 10.7.2007 which had already been upheld by the learned Commissioner.
Shri Abhishek submits that the principles of merger would apply inasmuch as even though they are summary proceedings the order of the Tehsildar dated 10.7.2007 has already merged into the order dated 25.2.2011 of the superior authority under Section 219 of the U.P. of Land Revenue Act, 1901 namely the order of the learned Commissioner which has remained unchallenged. Shri Abhishek Kumar has relied upon three decisions to substantiate his submissions namely Paras Nath and another vs. Deputy Director of Consolidation, Varanasi and others reported in 2010 (110) RD page 595; Bihar State Govt. Secondary School Teachers Association v. Bihar Education Service Association and Ors AIR 2013 SC 487 and Bhagwati Developers Private Limited vs. Peerless General Finance Invstment Company Limited and others (2013) 5 SCC 455.
He therefore, contends that the same will have a direct impact on the proceedings of the appeal before the Sub-Divisional Officer arising out of the same impugned order, and having not considered the same which was a relevant material, the order of the Sub-Divisional Officer is perverse. He has placed reliance upon the Full Bench decision of this Court in Nanhey and anor vs.Deputy Director of Consolidation, Kanpur & others reported in 1975 AWC 1 to urge that non-consideration of relevant material amounts to perversity.
Prima facie, after having heard Shri Sarwar Khan who has taken the Court to the merits of the matter, the contention of the petitioner appears to be correct.
1. All the respondents may file counter affidavit within three weeks.
Rejoinder affidavit may be filed within a week thereafter.
List thereafter.
Until further orders of the Court, all further proceedings before the Tehsildat pursuant to the remand order dated 21.3.2013 passed by the Sub-Divisional Officer shall remain stayed."
4. Counsel for the respondent No.3 has filed his counter affidavit and the petitioner has filed rejoinder affidavit. Respondent No.4 has not put in appearance although service is sufficient upon respondent No.4 as per office report dated 11.02.2019.
5. Counsel for the petitioner submitted that trial court (Tehsildar) has decided the application under Section 34 of U.P. Land Revenue Act taking into consideration each and every evidence adduced by the parties and held that petitioner and respondent No.3 are sons of late Lalla Prasad as such the case of respondent No.3 that respondent No.3 is to recorded exclusively was rejected and the judgment of trial court was maintained in revision under Section 219 of U.P. Land Revenue Act at the instance of respondent No.4 but appellate Court has illegally entertained the appeal under Section-210 of U.P. Land Revenue Act against the order of trial Court, even allowed the appeal and remanded the matter before trial court for fresh decision which is wholly illegal on the Principles of merger. He further submitted that once revisional court exercise the jurisdiction under Section-219 of U.P. Land Revenue Act by dismissing the Revision on merit and maintaining the order of trial court dated 10.07.2007 then proceeding before appellate court against the same order of trial court dated 10.07.2007 will be barred by principle of res judicata also. He further submitted that appellate order dated 21.03.2013 is perverse. He further submitted that even on merit the appellate court can not remand the matter before trial court as trial court has already decided the proceeding under Section-34 of U.P. Land Revenue Act after considering each and every evidence on record as such impugned orders be set aside and order of trial court dated 10.07.2007 be maintained.
6. He further submitted that respondent No.1 without considering the evidence available on record dismissed the petitioner's revision. Counsel for the petitioner placed reliance upon following judgment of Apex court as well as of this court on the point of principle of merger:
(1) AIR 1970 Supreme Court 1 Shankar Ramchandra Abhyakar Vs.Krishnaji Dattatraya Bapat.
(2) AIR 2013 SC 487 Bihar State Govt Secondary School Teachers Association vs. Bihar Education Service Association and others.
(3) (2013) 5 SCC 455 Bhagwah Developers Private Limited Vs. Peerless General Finance Investment Company Limited and others.
(4) 2010 (110) RD 595 Para Nath and another vs Deputy Direction of Consolidation Varanasi and others.
On the point of perversity of judgment of appellate Court Counsel for petitioner placed reliance upon 1975 AWC. 1 Nanhey and another Vs. Deputy Director of Consolidation Kanpur and others.
On the point of maintainability of the writ petition under Article 226 of the Constitution of India against the order passed in summary proceedings under Section 34 of U.P. Land Revenue Act, 1901 Counsel for the petitioner placed reliance upon judgment of this Court reported in 2012 (115) R.D. 187 Saumya Co-operative Housing Society Allahabad through its secretary Versus State of U.P. and others in which it is held that writ petition would be maintainable against orders which are without jurisdiction or are otherwise perverse. Para No.17 of the judgment is relevant which is as follows:
"..........17. Coming to the issue of jurisdiction, suffice it to say that even in matters of mutation this Court in the case of Lal Cahan V. Board of Revenue, U.P. Lucknow and others, has held that a writ petition would be maintainable against orders which are without jurisdiction or are otherwise perverse. As would be seen presently, the present writ petition also falls within the same category inasmuch as the Sub-Divisional Magistrate, while passing the order dated 25.08.2008 has failed to record any provision which may empower him to act and proceed contrary to the directions of the collector contained in the order dated 24.10.2007."
7. On the other hand Counsel for respondent No.3 submitted that petitioner is not son of Lalla Prasad rather he is nephew of Lalla Prasad as such petitioner cannot succeed the property of Lalla Prasad. He further submitted that appeal filed by respondent No.3 has been rightly allowed by Sub Divisional officer as the evidence on record have not been properly considered by trial court. He further submitted that revision which was filed against the order of trial court was at the instance of respondent No.4 as such dismissal of the same will not come in the way of respondent No.3 who has filed appeal under Section 210 of U.P. Land Revenue Act and the same was rightly allowed and remanded before trial court for fresh consideration of evidence. He further submitted that writ petition filed by petitioner against the remand order passed by appellate Court arising out of summary proceeding under Section-34 of U.P. Land Revenue Act 1901 is not maintainable and liable to be dismissed. Counsel for the respondent No.3 placed reliance upon judgment of this Court in the Case of Smt. Kalawati Vs. the Board of Revenue and others 2022 0 Supreme (All) 281 in order to demonstrate that writ petition arising out of mutation proceeding under Section 34 of U.P. Land Revenue Act is not maintainable.
8. I have considered the argument advanced by learned counsel for the parties and perused the records.
9. There is no dispute about the fact that trial court (Tehsildar) has held that mutation application filed by respondent No.3 is liable to be rejected and the order dated 31.03.2004 passed by Revenue Inspector for recording the name of petitioner as well as respondent No.3 being sons of deceased Lalla Prasad is in accordance with law, the order of trial court was maintained in Revision although at the instance of respondent No.4 (married daughter of Lalla Prasad) but in the revision respondent No.3 also contested the revisional proceeding, the order of revisional court dated 25.02.2011 has attained finality but appellate Court in appeal filed by respondent No.3 against the same, order of trial court dated 10.07.2007 has set aside the order dated 10.07.2007 and remanded the matter vide his order dated 21.03.2013 before trial court for fresh consideration in spite of the fact brought into the notice of the appellate court that revision filed against the order of trial court has already been dismissed vide order dated 25.02.2011.
10. Since jurisdiction under Section 34 of U.P. Land Revenue Act once has been exercised by trial court on the basis of evidence on record after affording opportunity of hearing to the parties as such there should be no interference against the order of trial court unless there is any error in the order but the appellate Court has illegally allowed the appeal against the order passed by trial court under Section 34 of U.P. Land Revenue Act and remanded the matter before trial court for fresh consideration of evidence without taking into consideration the principles of merger as the order of trial court dated 10.07.2007 has been merged in the final order of Revisional Court dated 25.02.2011 by which revision filed by respondent No.4 has been dismissed and order of trial court dated 10.07.2007 has been maintained.
11. Principles of Merger has been considered by the Apex Court as well as by this Court in the cases cited by learned Counsel for the petitioner, in the case of Shankar Ram Chandra Abhyankar (Supra) the Apex Court has held as follows in paragraph Nos. 8 and 9.
"8. Even on the assumption that the order of the appellate court had not merged in the order of the single Judge who had disposed of the revision petition we are of the view that a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under Section 115 of the CPC. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the court to prevent abuse of process as also to respect and accord finality to its own decisions.
9. In the result the appeal is allowed and the judgment of the division bench of the High Court is hereby set aside. The appellant shall be entitled to costs in this Court."
12. In the present case although respondent No.3 has not filed revision against the order of trial court rather respondent No.4 (daughter of deceased-Lalla Prasad) filed revision and respondent No.3 as well as petitioner contested the revisional proceeding which has resulted into dismissal of revision holding that petitioner and respondent No.3 both being sons will have right and affirmed the order of trial court dated 10.07.2007 as such principle of merger will apply.
13. So far as jurisdiction under Article 226 of the Constitution of India against the order of mutation Court under Section 34 of U.P. Land Revenue Act, 1901 is concerned in view of ratio of law laid down in Saumya Co-operative Housing Society (Supra) and Smt. Kalawati (Supra) in which it has been held that if the order of mutation court is without jurisdiction then interference can be made in exercise of writ jurisdiction under Article 226 of the Constitution of India. In the present case appellate order dated 21.03.2013 is without jurisdiction as the revisional court had already dismissed the revision against the order of trial court which attained finality as such appellate court had no jurisdiction to allow the appeal against the same order of trial court.
14. Since the order of trial court dated 10.07.2007 passed under Section 34 of U.P. Land Revenue Act 1901 under which petitioner and respondent No.3 were ordered to be recorded in the revenue records in the place of deceased tenure holder as such the petitioner's claim for exclusive right can be examined in the regular suit and for that relief petitioner can avail remedy of suit for declaration of his exclusive right and title in respect to disputed plots.
15. Considering the entire facts and circumstances of the case as well as ratio of law laid down by Apex Court on the principles of merger as well as of this Court on the point of perversity and jurisdiction, the impugned order dated 03.06.2013 passed by respondent No.1 and 21.03.2013 passed by respondent No.2 are liable to be set aside and are hereby set aside. The writ petition stands allowed. No order as to costs.
Order Date :- 12.10.2022 PS*