Allahabad High Court
Lakshmi Shankar Tripathi vs Board Of Revenue U.P. And Others on 17 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 31.10.2022 Delivered on 17.11.2022 Court No. - 52 Case :- WRIT - B No. - 16930 of 2013 Petitioner :- Lakshmi Shankar Tripathi Respondent :- Board Of Revenue U.P. And Others Counsel for Petitioner :- S.N. Tripathi Counsel for Respondent :- C.S.C.,O.P. Pandey Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. S.N. Tripathi, learned counsel for the petitioner, Mr. O.P. Pandey, learned Counsel for the respondent No.3 and learned Standing Counsel for the respondent Nos.1 and 2.
2. The brief facts of the case are that khata No.524 comprises of plot Nos. 566, 567 area 1.130 hectare situated in village-Atharha, Tappa-Parwarpur, Pargana-Haveli, Tehsil-Hata was recorded in the name of Shri Ramji, Janki Ji, Durga Ji, Shankar Ji, Hunuman Ji, through Mahanth Vishnu Das Chela Kanhaiya Das. Due to death of Mahanth Vishnu Das Naib Tehsildar Hata, Kushi Nagar vide order dated 20.10.2002 under Section-34 of U.P. Land Revenue Act in Case Nos.655 and 619 ordered to record the name of respondent No.3 Baba Ram Das Chela Mahanth Vishnu Das on the basis of will-deed dated 29.11.1994 executed by Mahanth Vishnu Das in favour of respondent No.3 Mahanth Baba Ram Das. One Phool Chand Gupta- respondent No.4 filed a restoration application dated 21.02.2003 against the order dated 20.10.2002 which was allowed vide order dated 15.03.2003 and ordered to record the name of respondent No.4 Phool Chand Chela Vishnu Das on the basis of unregistered will deed dated 06.12.1994 in respect to disputed plots of both the villages after expunging the name of Mahanth Vishnu Das. Against the order dated 15.03.2003 passed in Case No.619 in respect to plots of village-Rajpur respondent No.3 filed a revision No.366 before Commissioner, Gorakhpur Division Gorakhpur, the revision was partly allowed vide order dated 30.08.2012, the order dated 15.03.2003 was set aside by which name of respondent No.4 was ordered to be recorded on the basis of unregistered will deed dated 06.12.1994 and order dated 20.10.2002 passed in favour of respondent No.3 was maintained only to the extant that respondent No.3 shall not alienate the properly of puraini math as well as he will look after the property of the Math and act as only Sarvarakar of the Math. If there is any inter se dispute to the office of Sarvarakar of the Math then aggrieved person can approach civil Court, the property of Math was ordered to be recorded in the name of Math. According to the petitioner Kaushal Kishore Das executed registered will deed dated 01.03.1990 in favour of petitioner and 10 others. One Civil Suit No.32 of 1994 filed by Temple through Mahanth Phool Chand against Laxmi Shankar and 10 others for cancellation of will deed dated 01.03.1990 in respect of property situated in different village. One Civil Suit No.28 of 1964 filed by temple through Mahanth Raj Kishore Das against Vishnu Das and Kaushal Kishore Das was dismissed on the basis of compromise in respect to property situated in village-Puraini. Proceeding under Section 145 Cr.P.C. was also initiated which was decided on 21.09.1967 Ceiling proceeding under U.P. Imposition of Ceiling on Land Holdings Act was initiated and in Ceiling Appeal No.454 of 1976 Temple through Mahanth Vs State and Kaushal Kishore Das it was held vide order dated 18.11.1976 that property of deities can not be divided among Mahanth in order to usurp the properties belonging to the deities and override the provisions of Ceiling Act, the Ceiling Appeal was dismissed which was filed against the order of prescribed authority rejecting impleadment in the Ceiling proceeding already decided between the parties. Petitioner filed Revision under Section 219 (2) of U.P,. Land Revenue Act before Board of Revenue against the order of Commissioner dated 30.08.2012 which has been dismissed vide order dated 11.12.2012 hence this writ petition on behalf of petitioner. This Court while entertaining the writ petition has passed the following interim order dated 22.03.2013:-
"Issue notice.
Notices on behalf of respondents no. 1 and 2 have been accepted by the office of learned Chief Standing Counsel, therefore notice need not be served again to respondents no. 1 and 2.
Issue notice to respondents no. 3 and 4 through registered post returnable at an early date.
Steps be taken within two weeks.
As an interim measure without prejudice to the right and contention of the parties, the revenue entries as on date recorded in the revenue record be maintained."
3. In pursuance of the order dated 22.03.2013 respondent No.3 has put in appearance through Counsel and filed his counter affidavit along with an application for vacation of interim order. Petitioner has also filed his rejoinder affidavit to the counter affidavit filed on behalf of respondent No.3. Service upon respondent No.4 is deemed to be sufficient under Rules of Court in view of office report dated 07.10.2017/ 29.09.2018.
4. Counsel for the petitioner submitted that respondent Nos.1 and 2 had no jurisdiction to pass any order altering title of the petitioner in the summary proceeding under Section 34 of U.P. Land Revenue Act. He further submitted that title of Kaushal Kishore Das has been decided in his favour by Civil Court and petitioner claims right/title from Kaushal Kishore Das as such title of petitioner can not decided against him in summary proceeding. He further submitted that petitioner has no concern with respect to 1.130 hectare land of village-Athahara and village-Rajpur, but beyond that the order of Commissioner dated 30.08.2012 is wholly illegal and liable to be set aside. He further submitted that long standing entry cannot be expunged in summary proceedings. He finally submitted that impugned judgments/orders be set aside.
5. On the other hand, Counsel for the respondent No.3 submitted that respondent No.3 is a chela of Mahanth Vishnu who executed a registered will deed on 29.11.1994 in favour of respondent No.3. He further submitted that land in dispute is situated in District-Kushi Nagar and mutation order dated 20.10.2002 was passed by Naib Tehsildar Hata, District-Kushi Nagar but the writ petition has been filed with District-Gorakhpur as such caveat filed by respondent No.3 with District-Kushi Nagar was not reported by Stamp reporting Section and interim order has been granted while entertaining the writ petition without any opportunity of hearing to the respondent No.3 which has caused irreparable injury to the respondent No.3, who is managing the Math property. He further submitted that petitioner was not party before Naib Tehsildar or before Commissioner as such petitioner has no locus to file revision before Board of Revenue against the order of Commissioner dated 30.08.2012 or writ petition before this Court against the order of Commissioner dated 30.08.2012 and order of Board of Revenue dated 11.12.2012 hence writ petition filed by petitioner is not maintainable at the instance of petitioner as the dispute was between respondent Nos. 3 and 4 which has been rightly decided by Commissioner vide order dated 30.08.2012 directing that the property of the Math shall remained in the name of Math and nobody can transfer the Math property as such petitioner cannot challenge the order of Commissioner dated 30.08.2012 in any manner. He further submitted that Civil Suit No.11 of 1950 filed by Temple through Mahanth Vishnu Das Chela of Mahanth Kanhaiya Das against Kaushal Kishore Das for possession of the movable and immovable properties situated at village-Puraini was decreed vide judgment and decree dated 01.11.1950 recording finding of fact that Kanhaiya Das was the Chela of Mahanth Raghubir Das and Pahalwandas was merely an Adhikari and not the Mahanth of Puraini Math. It was also held that Vishnu Das is the Chela of Kanhaiya Das and was installed as a Mahanth. As such, any entry in the name of Kaushal Kishore Das in respect of Puraini Math is void and the transfer made is also void ab initio. He further submitted that judgment and decree dated 01.11.1950 has attained finality. He further submitted that Suit No.28 of 1964 was filed by Temple through Raj Kishore Das Chela of Mahanth Raghuveer Das for injunction against Vishnu Das and Kaushal Kishore Das which was dismissed on the basis of compromise. He further submitted that order passed under the Ceiling proceeding has no relevance to the present proceeding although it has been held while deciding the ceiling appeal that the land in dispute belong to deities. He finally submitted that writ petition filed by petitioner arises out of summary proceeding and is liable to be dismissed.
6. I have considered the argument advanced by learned Counsel for the parties and perused the record.
7. There is no dispute about the fact that property in dispute is the Math property and mutation order dated 20.10.2002 was passed by Naib Tehsildar Hata, Kushi Nagar under Section-34 of U.P. Land Revenue Act in Case Nos.655 and 619 in respect of properties situated in village-Atharha and Rajpur to record/mutate the name of respondent No.3 as Chela of Mahanth Vishnu Das. Against the order of Naib Tehsildar dated 20.10.2002 respondent No.4 filed a restoration application dated 21.02.2003 which was allowed by Tehsildar vide order dated 15.03.2003 ordering to record the name of respondent No.4 as Chela of Mahanth Vishnu Das after expunging the name of recorded person accordingly respondent No.3 field revision before Commissioner against the order dated 15.03.2003 and Commissioner has allowed the revision in part setting aside the order dated 15.03.2003 and maintained the order dated 20.10.2002 to the extant that revisionist (respondent No.3 of the instant writ petition) will not transfer/alienate the property of the Math rather he will only act as Sarvarakar of Math property. Petitioner who was not party in the proceeding has challenged the order of Commissioner dated 30.08.2012 before Board of Revenue which was dismissed vide order dated 11.12.2012.
8. Since petitioner was not party either before Naib Tehsildar in original mutation case or before Commissioner in revision and no order has been passed against the petitioner as such there appears to be no cause of action to the petitioner to challenge the order of Commissioner dated 30.08.2012 before Board of Revenue or before this Court by way of writ petition under Article 226 of the Constitution of India. In order to appreciate the aforementioned fact the perusal of operative portion of the order of Commissioner dated 30.08.2012 will be relevant which is as follows:
आदेश उपरोक्त विवेचना के आधार पर यह निगरानी आंशिक रूप से स्वीकार की जाती है। परीक्षण न्यायालय द्वारा विपक्षी फूलचन्द के पक्ष में तथाकथित अपंजीकृत वसीयत दिनांक 06.12.94 के आधार पर पारित नामान्तरण आदेश दिनांक 15.03.2003 निरस्त किया जाता है। पंजीकृत वसीयत दिनांक 29.11.1994 के आधार पर पारित नामान्तरण आदेश दिनांक 20.10.2000 को इस सीमा तक कायम व बहाल किया जाता है कि इसके आधार पर निगरानीकर्ता पुरैनी मठ की अचल सम्पत्ति के किसी भी भाग का विक्रय नहीं कर सकेंगे मात्र सर्वराकार की हैसियत से मठ के पूजा पाठ एवं दैनिक कार्यो का संचालन एवं मठ की सम्पत्ति की देखरेख करेंगे। यदि सर्वराकर के सम्बन्ध में आपस में विवाद है तो इसके लिए क्षुब्ध पक्ष सिविल न्यायालय में चाराजोई कर सकते है। मठ की सम्पत्ति मठ के नाम तद़्नुसार राजस्व अभिलेखों में पुनः अंकित की जाय। इस आदेश की एक प्रति जिलाधिकारी कुशीनगर को इस आशय से प्रेषित की जाय कि वे तत्कालीन नायब तहसीलदार, कप्तानगंज, तहसील हाटा द्वारा अवैधानिक रूप से पारित आदेश दिनांक 15.03.2003 एवं उनके कार्यकाल में पारित अन्य आदेशों का विधिवत परीक्षण कराते हुए उनके विरूद्ध विभागीय कार्यवाही संस्थित कराने हेतु आरोप पत्र तैयार कर मा० राजस्व परिषद को प्रेषित करें। साथ ही उप जिलाधिकारी, हाटा को निर्देशित करें कि वे आधार वर्ष 1359 फसली में इस मठ की अचल सम्पत्ति का वर्तमान राजस्व अभिलेखों से मिलान करते हुए अब तक बेची गयी सम्पत्ति के आधार पर हुए अवैधानिक रूप से हुए दाखिल खारिज को स्वप्रेरणा से शून्य मानते हुए उसे मठ के नाम पुनः अंकित कराने की कार्यवाही एल०आर०एक्ट की सु-संगत धाराओं में करायें। मठ की अचल सम्पत्ति का किसी भी सर्वराकार द्वारा किया गया विक्रय नियमतः स्वतः प्रतिबन्धित है। आदेश की एक प्रति के साथ अवर न्यायालय की पत्रावली वापस भेजी जाय। वाद आवश्यक कार्यवाही इस न्यायालय की पत्रावली संचित अभिलेखागार हो।
दिनांक 30.08.2012 ह० अप० ( के० रविन्द्र नायक) आयुक्त, गोरखपुर मण्डल, गोरखपुर
9. From the perusal of the operative portion of the order of Commissioner dated 30.08.2012 as quoted above, it is very much clear that there is no order against the petitioner as revisionist in the revision before the Commissioner was Baba Ram Das who is respondent No.3 of the instant writ petition and opposite party of the revision was Phool Chand who is respondent No.4 of the instant writ petition and the Commissioner vide order dated 30.08.2012 has maintained the order of Naib Tehsildar dated 20.10.2002 to the extant that revisionist (respondent No.3) will not transfer/alienate the property of Puraini Math and he will act only as Sarvarakar of the Math, the dispute to the office of Sarvarakar if any can be raised in Civil Court. Accordingly, petitioner has no locus to challenge the order of Commissioner dated 30.08.2012 either before Board of Revenue or before this Court.
10. So far as order of Commissioner dated 30.08.2012 to the extant that revisionist (respondent No.3 of the writ petition) will not transfer /alienate the property of puraini math will not make the order without jurisdiction as the dispute which was involved in mutation case is limited to math property of village-Atharaha and Rajpur, the fact remains that revisionist (respondent No.3 of the instant writ petition) alleging himself to be Sarvarakar of Puraini Math also as such in order to protect the property of the Math the observation to the aforementioned extant will not make the order dated 30.08.2012 without jurisdiction.
11. So far as proceeding of Civil Suit No.11 of 1950 filed by Temple for possession of Math property. Civil Suit No.28 of 1964 filed by Temple for injunction as well as the Ceiling Proceeding are concerned, it is material to state that in every proceeding, it is found that property belong to deity as such it cannot be said that in civil suit the right and title of the petitioner has been recognized.
12. The property in dispute is a math property and nobody can transfer the same as such petitioner has no locus to challenge the order impugned passed in the summary proceedings under Section 34 of the U.P. Land Revenue Act. However, petitioner can file suit for declaration of his right and title before regular court if petitioner's right and title is affected in any manner under the impugned judgment/order .
13. Considering the entire facts and circumstances of the case, no interference is required against the impugned judgment/orders. The writ petition has no merit and the same is dismissed.
14. No order as to costs.
Order Date :- 17.11.2022 PS*