Allahabad High Court
Lalita Devi And 2 Ors. vs Board Of Revenue U.P. Lucknow Thru ... on 8 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 536
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 25 Case :- MISC. SINGLE No. - 34797 of 2019 Petitioner :- Lalita Devi And 2 Ors. Respondent :- Board Of Revenue U.P. Lucknow Thru Chairman And Ors. Counsel for Petitioner :- Indrajeet Shukla,P.K. Shukla Counsel for Respondent :- C.S.C.,Mohd. Waris Farooqui Hon'ble Mrs. Sangeeta Chandra,J.
(1) Heard the learned counsel for the parties and perused the record.
(2) This petition has been filed by the petitioners challenging the order dated 30.10.2019 passed by the opposite party no.1-Board of Revenue, U.P., Lucknow and also praying for a direction to be issued to the opposite parties to maintain status-quo and not alienate the property in question i.e. Khata Nos.1484 and 1645 situated at Village Keshav Nagar (Paschim), Pargana, Budhapayar, Tehsil Mankapur, District Gonda.
(3) Learned counsel for the petitioners Shri Indrajeet Shukla, has placed the brief facts related to the controversy for its better appreciation. It has been submitted that a dispute relating to Khata Nos.1484 and 1645 situated Village Keshav Nagar (Paschim), Pargana Budhapayar, Tehsil Mankapur, District Gonda arose. Smt. Lakpati widow of Ram Keval, was the undisputed recorded tenure holder of the land in question and after her death on 14.06.1992 by virtue of PA-11 entry the names of Ram Ratan and Ram Milan were recorded as legal heirs in the Revenue records. A Mutation proceedings by way of application was initiated by the opposite party no.3 Adhari wife of Ram Sughar as a result whereof an order dated 24.08.1994 was passed by the Naib Tehsildar without providing any opportunity of hearing to the recorded tenure holders Ram Ratan and Ram Milan. Since the recorded tenure holders Ram Ratan and Ram Milan were not provided any opportunity of hearing, they moved a restoration application seeking Recall of the order dated 24.08.1994. During the pendency of the restoration application, they died and the legal heirs were substituted by an order dated 02.12.2011. The restoration application was allowed setting aside the order dated 24.08.1994 and the next date fixed was 23.12.2011. On 23.12.2011, a general date was fixed for 20.07.2012 and on 20.07.2012, again a general date was fixed for 24.08.2012. On 08.08.2012 an order deciding the mutation proceedings was passed by the Naib Tehsildar, Babhanipayar, Tehsil Mankapur, District Gonda, on the basis of some spot inspection carried out on an application made by the opposite party no.3 on 26.06.2012. Neither the spot inspection was carried out in presence of the petitioners nor the date earlier fixed as 24.08.2012 was pre-poned and notice issued for the date to be fixed as 08.08.2012. A copy of the Spot Inspection and Enquiry report was never provided to the predecessor in the interest of the petitioners. In fact, the order dated 08.08.2012 was passed by the opposite party no.2 in favour of the opposite party no.3 in a fraudulent manner.
(4) It has been submitted in Paragraph 12 of the petition that the Naib Tehsildar, Mankapur, had been transferred to Tehsil Nanpara District Bahraich, prior to 24.08.2012 and as such, before assuming charge at Tehsil Nanpara, District Bahraich, the order dated 08.08.2012 was passed to benefit the opposite party no.3 for extraneous consideration, although the date already fixed in the matter was 24.08.2012.
(5) Since the order dated 08.08.2012 was ex-parte, a Recall application was filed. At the same time, the petitioner was advised that since the order dated 08.08.2012 was on the merits of the matter, directing recording of the opposite party no.3 as co-tenure holder of the property in question and had been passed fraudulently, the petitioner may also file Revision against such proceedings. A Revision was preferred by the predecessor in the interest of the petitioner and it was allowed by the order dated 07.04.2016 passed by the Additional Commissioner (Judicial), Devi Patan Mandal, Gonda.
(6) Learned Additional Commissioner (Judicial), Devi Patan Mandal, Gonda while allowing the Revision had summoned the lower court record and recorded a categorical finding that the order dated 08.08.2012 was passed by the Naib Tehsildar, Mankapur, Gonda while he was under transfer and also when no date was fixed on 08.08.2012. In the order-sheet there was a clear indication that on 20.07.2012 only a general date has been given and the matter had been fixed for 24.08.2012. The Additional Commissioner (J), Devi Patan Mandal, Gonda, had recorded a finding that the parties were not informed that the matter would be taken up on 08.08.2012. The Additional Commissioner (J), Gonda, also found that after 23.12.2011 only general dates had been fixed in all contested matters including the matter under his consideration by the Naib Tehsildar Court and no hearing on merits had taken place. Learned Additional Commissioner (Judicial), Devi Patan Mandal, Gonda set aside the order dated 08.08.2012 and remanded the matter to the Trial Court for adjudication on merits.
(7) Against the order dated 07.04.2016, the opposite party no.3 filed a Revision No.933 of 2016 on 25.04.2016. The said Revision has been allowed by the impugned order dated 30.10.2019 by the Board of Revenue only on the ground that the Recall application was pending against the order dated 08.08.2012 before the Naib Tehsildar and simultaneously a Revision had been filed by the predecessor in the interest of the petitioners before the Additional Commissioner (Judicial), Devi Patan Mandal, Gonda. It was observed by the Member (Judicial) of Board of Revenue that two remedies against one order were not permissible to be prosecuted simultaneously. The order of the Additional Commissioner (Judicial), Devi Patan Mandal, Gonda on its merits with regard to the finding of fraudulently getting the matter pre-poned and the order being passed on 08.08.2012 behind the back of the petitioners was not set aside or interfered with.
(8) It has been submitted by the learned counsel for the petitioners that without setting aside the finding recorded by the First Revisional Court, the Second Revisional Court i.e. Board of Revenue only interfered with the order because under some misapprehension of law it was of the opinion that a Recall application before the Trial Court and a Revision before the Higher Court was not permissible simultaneously. The observation of the Board of Revenue is against the law settled by the Supreme Court in Bhanu Kumar Jain Vs. Archana Kumar and Others reported in 2005 (All.) C.J. 715. The Supreme Court has observed that a person aggrieved by an order passed ex-parte may file application under Order 9 Rule 13 for Recall, and at the same time file an Appeal and pursue both the remedies simultaneously. The statutory right on filing an Appeal cannot be curtailed and the circumstances mentioned by the Court in Paragraphs 24 to 28 of the judgment, although relate to an Appeal, also apply in case of Revision before a Superior Court, challenging the illegal and fraudulent proceedings of lower court. Paragraphs 24 to 25 of the judgment rendered by the Hon'ble Supreme Court say that an Appeal against an ex-parte decree in terms of Section 96 (2) of the CPC could be filed on such grounds as the material on record in the ex-parte proceedings in the suit by the plaintiff cannot entail a decree in his favour, and also that the Suit could not have been posted for ex-parte hearing. In an application under Order 9 Rule 13 of the Code, apart from questioning the correctness or otherwise of an order posting the case for ex-parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date.
(9) This Court perused the judgment in Bhanu Kumar Jain (Supra) Paragraph 26 of the judgment rendered in Bhanu Kumar Jain (Supra), the Supreme Court had observed that a party aggrieved against the ex-parte decree has two clear options, one, to file an Appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the CPC. He can take recourse to both the proceedings simultaneously but in the event the Appeal is dismissed as a result whereof the ex-parte decree passed by the Trial Court merges with the order passed with the order passed by the Appellate Court, having regard to Explanation appended to Order 9 Rule 13 of the Code, a petition under Order 9 Rule 13 would not be maintainable.
(10) To summarize the law as settled by the Hon'ble Supreme Court, it may be observed that the right of Appeal is not taken away by filing an application under Order 9 Rule 13 of the CPC. If an Appeal is dismissed as a result of which the ex-parte decree merges with the order of the Appellate Court a Recall application against the order passed by the inferior Court would not be maintainable.
(11) It has moreover been submitted by Shri Indrajeet Shukla, that the Additional Commissioner (Judicial), Devi Patan Mandal, Gonda, noted the illegality and procedural impropriety in the order dated 08.08.2012 being passed by the Naib Tehsildar and having set it aside, had only remanded the matter to Naib Tehsildar to consider afresh on merits and thus substantial justice had been done and it was open to both the parties to participate before the Trial Court of Naib Tehsildar with regard to the mutation proceedings pending before him. Such order should not have been interfered with by the Board of Revenue in such a cursory manner and on a misconception of law.
(12) Shri Mohd. Arif Khan, learned Senior Advocate assisted by Shri Mohd. Waris Farooqui has appeared on behalf of the respondent no.3. He has raised a preliminary objection regarding maintainability of the writ petition saying that the said writ petition arises out of orders passed in mutation proceedings. Ordinarily, this Court does not entertain the writ petition against such orders as mutation proceedings are the summary proceedings and it is open for the parties to get their rights adjudicated by filing a regular proceeding either in Revenue Courts or in Civil Court for declaration of their rights. He has pointed out Paragraph 12 of the counter affidavit to say that Ram Ratan and Ram Milan, the predecessor in interest had filed a Regular Suit No.38 of 2010 (Ram Kishore and Another Vs. Smt. Adhari and others) which was subjudice before the Civil Judge (Senior Division), Gonda, and therefore, this writ petition should not be entertained.
(13) Learned counsel for the respondent no.3 has also pointed out that the petitioner no.1 has sold out the property to one Balram, her brother on 25.05.2016 and mutation of the name of Balram has already been ordered by the Naib Tehsildar in the Revenue Record on 16.09.2016. Against the order dated 16.09.2016 an Appeal was filed by the respondent no.3 which has been entertained and the order dated 16.09.2016 has been stayed by the Appellate Court on 13.12.2016. Against the order passed by the Appellate Court dated 13.12.2016 the petitioners have filed a Revision which is pending before the Court of Additional Commissioner where the order passed by the Appellate Court has been stayed.
(14) It has been submitted that the petitioners have no locus to challenge the order dated 30.10.2019 as they have already sold out the property to one Balram.
(15) The learned counsel for the respondent no.3 has also submitted that by the order passed by the Board of Revenue impugned in this petition, only the order passed by the Additional Commissioner has been set aside and the petitioners have been asked to go to the Trial Court to pursue their restoration application pending against the order dated 08.08.2012. There would be ample opportunity to the petitioners to get their case thrashed out on merits before the Naib Tehsildar in the restoration application.
(16) Learned counsel for the respondent has also referred to Section 210 of the U.P. Land Revenue Act to say that the Revision before the Additional Commissioner filed under Section 219 by the petitioners was not maintainable. It has been submitted that against an order passed by the Assistant Collector, First Class or Second Class i.e. against an order passed by the SDM or the Tehsildar, an Appeal would lie and not a revision. The exception carved out under Sub-Section 6 of Section 210 would also not be available as the order impugned before the Additional Commissioner was passed under Section 34 of the Land Revenue Act and not under Section 33.
(17) It has also been submitted that the petitioners assignee Balram has not been arrayed as a party and the facts regarding the petitioners having sold off the property to Balram has been concealed before this Court. The transferee is the real brother of the petitioner no.1 Smt. Lalita.
(18) On merits it has also been submitted that initially Gayadeen was the recorded tenure holder. He had two sons Ramai and Ram Keval. Ram Keval married Lakpati while Ramai had tow sons, Ram Ratan and Ram Milan. Lakpati and Ram Keval had one daughter Smt. Adhari who has been arrayed as respondent no3. On the other hand, Smt. Lalita is claiming through Babu Lal and Annu Lal, the sons of Ram Kishore who is claiming through Ram Ratan the son of Ramai. It is a dispute between two branches of the same family one represented by the predecessor in interest of Smt. Lalita i.e. Ram Ratan and Ram Milan and the other represented by the opposite party no.3 Smt. Adhari. Smt. Adhari being the daughter of Ram Keval was deprived of her ancestral property by getting the name of Ram Ratan and Ram Milan alone recorded in the Record of Rights through the proceedings under PA-11, therefore, the mutation application was rightly filed by Smt. Adhari and the order passed by the Naib Tehsildar on 08.08.2012 directs recording of the name of Smt. Adhari also as co-tenure holder, and such order should not be interfered with in writ jurisdiction.
(19) Learned counsel for the petitioners Shri Indrajeet Shukla, on the other hand, in his reply has submitted that this Court in Awadhesh Singh Vs. Additional Commissioner and Others Writ-C 13751 of 2005 decided on 04.08.2017 has mentioned. The exceptions where this Court can interfere even in orders passed in mutation proceedings. It has been observed by this Court that where an order has been passed without jurisdiction or that it confers rights against the settled position in law, an order passed in mutation proceedings can be interfered with in writ jurisdiction. This Court has relied upon a judgment in Vijay Shanker V. Additional Commissioner (Administration), Lucknow Division & Ors. passed in Writ Petition No.7719 (M/S) of 2014. This Court had carved out the exceptions in Paragraph 15 of the judgment in Vijay Shanker (Supra) where it was held that remedy of writ jurisdiction under Article 226 of the Constitution of India can be available where the order passed is absolutely without jurisdiction, where the order passed is against an entry made in pursuance of the order passed by the Regular Court, where the Courts have not considered the matter on merits like where the Courts have passed the orders on restoration application etc., where the order has been obtained by fraud or by fabricating the documents.
(20) Learned counsel for the petitioners has emphasized the third and fourth grounds mentioned in Vijay Shanker (Supra) available for the writ petitioners to approach this Court in writ jurisdiction against the order passed in mutation proceedings.
(21) With regard to the second preliminary objection raised by the learned counsel for the respondent no.3, learned counsel for the petitioners has relied upon on Shardamma Vs. Mohammed Pyrejan (D) through L.R.s & Another reported in AIR 2015 (SC) 3747; 2016 (1) SCC 730, where the Supreme Court has observed that an assignee can approach the court independently to protect the right of the assignee. The High Court had held that Shardamma, the plaintiff had transferred her interest in favour of her daughter during the pendency of the First Appeal and therefore, she had lost her right to continue the Appeal for the benefit of her daughter, who in turn had transferred the property in favour of a third person. The High Court had held that the appellant had lost her right to continue the Appeal. The Supreme Court over ruled the High Court and held that merely by assignment or release of the rights during the pendency of the Appeal, one does not lose the right to continue the Appeal, the Assignee may move an application for impleadment, but his failure to do so will not entail the dismissal of the Suit or the Appeal. The Assignee can continue the proceedings for the benefit of the Assignee. The Supreme Court observed on the basis of the judgment rendered by Jaskirat Datwani Vs. Vidyavati & Ors. reported in [2002 (5) SCC 647], that even if no step is taken by assignee, suit may be continued by the original party and the person upon whom the interest has devolved will be bound by the decree, particularly when such party had the knowledge of the proceedings and still failed to file any application for being heard.
(22) It has been submitted by the learned counsel for the petitioners that the petitioner no.1 Smt. Lalita Devi may have sold off her property to her brother Balram but her rights to selling off the property are still to be determined and she can only transfer a right that she herself possesses to her Assignee, as a vendor cannot transfer a better right to her transferee.
(23) It has also been submitted that the Regular Suit filed by the Ram Milan is for a Permanent Injunction restraining the respondents from interfering in the peaceful possession of the petitioners' predecessors Ram Milan and Ram Ratan. There is no suit filed for declaration of rights of the parties, and said suit for permanent injunction shall take its own course whereas the mutation proceedings in this case have been initiated for recording of name in the Revenue records.
(24) It has also been submitted that the Additional Commissioner's orders had directed the parties to appear before the Trial Court i.e. the Court of Naib Tehsildar to thrash out the matter on merits in the mutation proceedings. Such order need not have been interfering with by the Board of Revenue on misconceived grounds as it directs for participation of both the parties before the Trial Court.
(25) Learned counsel for the petitioners has also stated that under Section 219 of the U.P. Land Revenue Act, a Revision can be filed not only against the "order" but also against the "proceedings" and in a case where no Appeal lies or even where Appeal lies but has not been preferred. In this case, a Revision was filed against the illegality and impropriety of the procedure followed by the Naib Tehsildar in his making a spot inspection on the application made by the respondent no.3 behind the back of the petitioners, not giving copy of the spot inspection report to the petitioners and preponing date without notice to the petitioners from 24.08.2012 to 08.08.2012 and passing orders on merits of the case.
(26) This Court has considered the arguments raised by the learned counsel for the parties. This Court finds from the record that the Additional Commissioner (Judicial), Devi Patan Mandal, Gonda, had summoned the lower court record and had found therefrom that on 20.07.2012 a general date had been given in all the cases of 24.08.2012. No application was moved for preponing the a date by either of the parties. The Naib Tehsildar Mankapur, had been transferred from Mankapur, Gonda to Tehsil Nanpara, District Bahraich before the date fixed on 24.08.2012. Without their being any date fixed on 08.08.2012, the Naib Tehsildar had passed the order impugned in favour of the respondents to the Revision for their names be recorded as co-tenure holders in the records of rights. The order-sheet had been produced before him and having perused the order-sheet, he had found that only general dates had been given in all the cases and the last date fixed on the order-sheet was 24.08.2012. Only a general date having been fixed, the matter was not heard on merits from 23.12.2011 onwards. Since March, 2012 to 24.08.2012 the Court of Naib Tehsildar had in fact not heard a single matter on contested mutation applications, filed before him. The Additional Commissioner had found that the order was passed behind the back of the Revisionists and without following the procedure in a fraudulent manner. The order passed by the Naib Tehsildar was set aside and the matter had only been remanded before the Trial Court to consider afresh on merits after giving opportunity to both the parties to be heard.
(27) This Court is aware that normally extra ordinary writ jurisdiction is not exercised in matters arising out of mutation proceedings. In this case, however, the order passed by the Board of Revenue, if not, interfered with by this Court in equity jurisdiction would amount to restoring an illegal and fraudulent order dated 08.08.2012 passed by the Naib Tehsildar.
(28) This Court also feels that it is its duty to correct an error of law occurring in the lower court record. The Board of Revenue under some misconception of law, had come to the conclusion that the Recall application having been filed, no Revision was maintainable simultaneously. The Supreme Court has settled the position in law that when two remedies are available to a person aggrieved and there is no prohibition in law in pursuing of both the remedies simultaneously, then the person aggrieved can choose either to avail only one remedy or to avail both remedies to establish his rights.
(29) The order passed by the Board of Revenue dated 30.10.2019 is set aside. The order passed by the Additional Commissioner (Judicial), Devi Patan Mandal, Gonda, on 07.04.2016 is affirmed. The parties are directed to approach the Naib Tehsildar who shall consider the matter on merits and decide the same strictly in accordance with law within a period of three months from today.
(30) It is made clear that no unnecessary adjournments shall be given to either of the parties.
(31) Let a copy of this order be sent to the Additional Chief Secretary, Department of Revenue, Government of Uttar Pradesh by the office of the Chief Standing Counsel and also by the Registry to take appropriate action against the then Naib Tehsildar Babhanipayar, Tehsil Mankapur, District Gonda, who had passed the order dated 08.08.2012 for extraneous considerations and behind the back of the parties and, to initiate the disciplinary proceedings against the said Officer.
(32) Till the decision of the matter by the Naib Tehsildar concerned, the parties shall maintain the status-quo as on date with regard to the property in dispute.
(33) Writ petition stands allowed.
Order Date :- 8.1.2020 PAL