Uttarakhand High Court
Brij Raj And Another .....Petitioners vs Mahesh Kumar And Others on 18 November, 2020
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 1861 of 2016 (M/S)
Brij Raj and another .....Petitioners
Versus
Mahesh Kumar and others ....Respondents
Present :
Mr. V.K. Kohli, Senior Advocate assisted by Mr. Tapan Singh, Advocate for the
petitioners.
Mr. Mahavir Singh Tyagi, Senior Advocate for the respondents.
Judgment reserved on : 28th August, 2020
Judgment Delivered on : 18th November, 2020
JUDGEMENT
Hon'ble Sharad Kumar Sharma, J.
(Via Video Conferencing) The petitioners, who had been opposite parties, to the proceedings under Section 33/39, had preferred this Writ Petition, initially, praying for the following reliefs :
"i) Issue a writ, order or direction in the nature of certiorari/quashing the impugned judgment and order dated 10-12-2009 passed by the learned Assistant Collector, First Class, Haridwar in case no.01/07-08, Mahesh and others Vs. Ritu Raj and another and judgment & order dated 22.06.2016 passed by the learned Board of Revenue, Uttarakhand, Dehradun in revision no.43/2009-10, Shri Ritu Raj and another Vs. Mahesh Kumar and others (respectively contained as Annexure Nos. 14 & 15 to this writ petition.
ii) Issue any other relief, which this Hon'ble Court may deem fit and proper, in the circumstances of the case, be passed in favour of the petitioners.
iii) cost of the petition, be awarded in favour of the petitioners."2
2. Subsequently, by virtue of the amendment, which was directed by an order dated 07.07.2020, which was carried by the petitioners, he had also questioned the propriety of the order of 11th April, 2016, by modulating the reliefs and adding therein the following prayers :-
"i.a) Issue a writ, order or direction in the nature of certiorari/quashing the order dated 11-04-2016 passed by the learned Board of Revenue, Uttarakhand, Dehradun in revision no.43 of 2009-2010, Rituraj & another v. Mahesh Kumar & others (contained as Annexure No.18 to this writ petition.)"
3. The brief facts and controversy, which engages consideration in the present Writ Petition, is in relation to a land, which was lying in Khewat No.171, Kasba Jwalapur, Tehsil Roorkee, District Saharanpur (as it then was), (which would be hereinafter called as the "land in dispute").
4. As per the case, in the writ averments, it is an admitted fact, that one Lala Sheetal Prasad, was the owner and Khewatdar of the disputed land. The Khewatdar, as named aforesaid, by virtue of a registered sale deed dated 3rd October, 1939, is alleged to have sold part of the khewat No. 171 to one Mr. Lalit Kishore, who is said to be the father of the present petitioners, who claims their rights, as their late father being the purchaser in pursuance to the sale deed dated 3rd October, 1939, and later petitioners' claim their by devolvement of right by succession.
5. The petitioners' case in the Writ Petition, is that in accordance with the entries made in khewat chausala, pertaining to the year 1358 to 1361 fasli, which was prepared in PA-18, he submits that Lalit Kishore was recorded in column-6 of the said khewat chausala, as to be a land, which was lying within the declared municipal limits 3 of the Municipality of Haridwar, though the land was located in Jwalapur.
6. The petitioners' contention is further that their father, as would be apparent from the khewat chausala, was recorded as a khewatdar in relation to the land, which was more appropriately described, as to be a land lying in khewat 171/1. The petitioners' contention is that the said entry in khewat chausala was made in favour of their predecessors on the basis of the sale deed, which was executed by Lala Sheetal Prasad in his favour on 3rd October, 1939, who was the owner and principal Khewatdar.
7. The petitioners' case is that late Smt. Ram Dei, wife of late Mr. Krishnanad, who was the grand-mother of the present respondents, though, she was never the owner or khewatdar nor was in possession of the property, in dispute, but, according to the admitted case of the petitioner himself, Ram Dei stood recorded in the revenue records of 1383 fasli; as against khasra No. 2402/3 of khewat No. 171/1 and the entry recorded therein, had shown her status of occupancy as to be, that of class-2 (C) occupant.
8. The grievance of the petitioners is that the said entry made of Ram Dei in the revenue records of 1383 fasli in shreni 2-C, in the khatuni of 1383 fasli, was made without there being any prior order passed by the competent authority as per law, directing to record the possession of Ram Dei; in the revenue records in Shreni 2-C of Khatauni of 1383 fasli. But, the khatuni of fasli year 1386, on which, the reliance has been placed by the counsel for the petitioners, in support of his case, he contends that the said khasra No.2402/3 of khewat No. 171/1 of village Jwalapur, was ultimately declared and brought within the Municipal Board area of Haridwar Municipality, and consequently, as per the khatuni entries pertaining to 1386 fasli, the possession of the petitioners' predecessors was recorded as to be a 4 Sikmi occupant, lying in Shreni 20, in relation to the land, which was otherwise recorded as a non-ZA land.
9. As per Chapter VIII of the Land Revenue Manual, which deals with the Khatuni and Errata List, and list of occupants, it deals with the land; over which, the provisions of the U.P. Z.A. and Land Reforms Act, 1950, does not apply, the particular class of tenure holders in relation to a non-ZA land has been classified, in para 124 of the Land Record Manual, which describes shreni-20 in the following manner :
"Chapter VIII (Applicable only to the areas to which the U.P. Zamindari Abolition and Land Reforms At, 1950 does not apply."
"(20) Occupiers of land without the consent of the persons, if any, entered in column 5 of the khasra."
10. Meaning thereby, if the entries which were made in 1386 fasli is taken into consideration, since being a land over which the petitioner was recorded in shreni-20, it would mean that the occupancy of the petitioner, which was recorded therein was without the consent of the person and was entered accordingly in column-5.
11. The petitioners' case is that the father of the petitioners, late Mr. Lalit Kishore had met with the sad demise in 1988, and accordingly, the petitioner stood recorded as against the aforesaid property in dispute in the Udaran khatuni, PA-11 in relation to a land, over which the Zamindari Abolition Act does not apply.
12. At this stage itself, this Court feels it necessary to observe as to what impact would the entries made in PA-11, which emanates from para A-82-A of the Land Record Mannual, which, in fact, does not hold any evidentiary value under law as such, because these are the entries, which are made in the Kharif and Rabi years 5 while conducting the on spot partal by Lekhpal, who makes and records the entries of the birth or death of the tenure holders of the land referred therein. What this Court wants to intend to convey is that the contention of the petitioner that after the death of Mr. Lalit Kishore, their father, petitioner stood recorded in the khatuni, annexure-4, on which, the reliance has been placed by the petitioner, in fact, it is the khatuni, which is prepared on PA-11 and in accordance with Para-A-82-A of the Land Record Manual, which does not have an element of declaration of the title or right of the tenure holder thus recorded, it only envisages the succession of the deceased tenure holder. Para A-82-A as well as form PA-11-A is, referred hereunder, to show the effect of such partali entries :-
82-A (i) Whenever in the course of his Kharif/rabi/zaid 'partal' the Lekhpal finds that a tenure-holder recorded in column 4 or 5 of the Khasra has died, he shall ascertain the date of death of the tenure-holder, the names and addresses of all heirs entitled to succeed to the holding in accordance with the law and the existence or otherwise of any dispute regarding succession. He shall then fill in columns 1 to 8 of the list in form PA-11-A as given below:
Form PA-11-A Village............Pargana...............Tahsil.............District...............
1. Serial No.
2. Khatauni-Khata No.
3. Name of the tenure-holder as recorded in column 2 of the khatauni.
4. Name of the deceased tenure-holder.
5. Date of death of the deceased.
6. Name of the heirs or heirs with parentage and residence and relationship with deceased.
7. Lekhpal's report regarding existence of dispute, if any, if there is a dispute indicate th e nature of dispute in brief. If there is no dispute write undisputed.6
8. Signature of Lekhpal with date.
9. Order by the [Supervisor Kanungo] with his full signature and date.
10. Revised entry of Khata.
11. Signature of the Lekhpal in token of having made necessary entries in column 7 to 9 of the Khatauni, as the case may be, with date.
12. Remarks.
(ii) The entries for each fasal shall be closed on the date of completion of the partal of a village by the Lekhpals.
(iii) The list shall be handed over to [Bhulekh Nirikshak] personally by the Lekhpal along with memorandum in Form PA-24. The [Bhulekh Nirikshak] will take action as prescribed in Paragraph 433-2c.
(iv) The list shall be put up before theh [Bhulekh Nirikshak] at the time of his visit to the village who will take action as in Paragraph 433-C."
13. The petitioner submitted in the pleadings of the Writ Petition that the land lying in Khasra No. 2402/3 of Khewat 171/1, as against which, they claimed to be recorded after the death of Lalit Kishore in 1988; in the capacity of having succeeded the estates, in fact, was yet again, a declaration which was sought made as against the non-ZA land and he i.e. the petitioners themselves admits the fact the land was not used for any agricultural activities, rather their case is that only eucalyptus trees were planted and two rooms were constructed over the said land which is dispute.
14. The petitioners' case is further that recording of the name of Mrs. Ram Dei, the grand-mother of the respondents in column-5 of the Khatuni of 1383 fasli, showing her to be a Class-2-C occupants in column-5, in fact, was in contradiction to the khatuni entries, and it is 7 argued also that since it was recorded without there being any specific order passed by the competent authority, the entries made therein of showing the possession of Ram Dei in column-5 of the khasra was without any authority and in contradiction of the entries of the Khatuni.
15. The precise argument of the petitioner is that the khasra thus prepared, cannot be prepared in the name of a person, who is not holding the title and even if it is made, it itself only reflect the possession of the person, who is thus recorded, in the records of title.
16. Admittedly and also as per documents on record, the petitioner has specifically pleaded, particularly, in para-9 of the Writ Petition that the father of the petitioner's late Mr. Lalit Kishore was recorded as Sikmi occupant, i.e. "sub-tenant" in the records of 1392 to 1405 fasli, as would be apparent from the Udaran Khatuni, annexure-6 to the Writ Petition. What is relevant to observe here is that even the said khatuni of 1392 fasli, records him as to be an occupant in Sherni-20.
17. The petitioner's case is that since the Naib Tehsildar, vide its order dated 20th March, 2002, has deleted the name of Ram Dei from her entries made in column-5 of the khasra and, in support thereto, he makes a reference to Annexure-7 to the Writ Petition, the entry of which, reads as under :-
"[k-u-2402@3 ij jdck 0-031 gS0 ls e`rd jkensoh dk uke [kkfjt djds dkfcr J`rqjkt o cztjkt iq0 yfyr fd"kksj fuoklh ihB cktkj dk uke Js.kh 2x esa vafdr gksosA"
18. Even if, the said entry as recorded in the khasra of 1409 fasli, is taken into consideration, the deletion of the name of Ram Dei as an occupant of the property in Shreni 2-C, was not based on any judicial order, passed by the competent authority, as permissible under 8 law, nor does the entry reflects as to a entry based on as a consequence of any judicial proceedings.
19. Ram Dei met with the sad demise in 1980. The petitioner's case is that since her name was wrongfully recorded, hence, the petitioner supported the order of Naib Tehsildar dated 20th March, 2002, contending thereof that Naib Tehsildar, had all the rights to delete the name of Ram Dei, from her entry made in khasra No. 1409 fasli, even without any order being passed in regards to the deletion of entries by the competent authority.
20. As per the pleading of the Writ Petition, the petitioner contends that as a consequence of the deletion of the name of Ram Dei by an order of 20th March, 2002, the predecessors of the respondents Mr. Rameshwar Prasad, is said to have filed an application before the Sub Divisional Magistrate on 26th April, 2004, whereby, in the said application, he has prayed that the order of Naib Tehsildar dated 20th March, 2002, be set aside as it was without any authority and the name of his mother Ram Dei was wrongfully deleted from revenue records and in their place, the name of the petitioner was wrongfully recorded and, hence, the prayer was made that the entry of name of Ram dei as an occupant of the property, in question, should be restored back and, as a consequence of her death in 1980, the predecessors of the respondents, prayed that their name may be recorded as against the said land.
21. On the said application, as submitted by late Mr. Rameshwar Prasad, i.e. the predecessor of the present respondents, the report of the Lekhpal was called, who submitted the report dated 30th September, 2004, to the Tehsildar, which according to the petitioners' contention, in fact, had supported the stand of the petitioners; that the name of Ram Dei was wrongfully recorded as Shreni 2-C occupant in 1383 fasli.
922. The petitioners further submitted that the credential of the respondents for being recorded in the revenue records, would be doubtful for the reason being that when the proceedings, which were initiated by the predecessors of the respondents on 24th June, 2004, on which, report was submitted on 30th September, 2004, the petitioner's case is that when the respondents/authority wanted to furnish the copy of the report to the predecessors of the respondent, late Mr. Rameshwar Prasad, he declined to receive the same, and has not even signed the said report of Naib Tehsildar dated 30.09.2004.
23. The petitioner's case, though without, any record or any order passed in relation to it being on record, as such, is that on account of the fact that late Mr. Rameshwar Prasad, has declined to receive the copy of the report dated 30th September, 2004, and because as a consequence thereto, the Sub Divisional Magistrate exclusively, based on the report dated 30th September, 2004, has dropped the proceedings initiated by late Mr. Rameshwar Prasad on 24th June, 2004, the petitioner challenges the proceedings, which is now subject matter of consideration.
24. This Court is of the view that if the effect of the said dropping of the proceedings, which was initiated by late Mr. Rameshwar Prasad on 24th June, 2004, if it at all had any bearing and if it constituted, as to be a part of the judicial proceedings, the dropping of the application dated 24th June, 2004, could have had been resorted to by the Sub Divisional Magistrate; only by virtue of a specific judicial order being passed on it, and once, the petitioner places reliance on the effect of dropping of proceedings, and attempts to derive the benefit, out of it, then, it was the responsibility and the burden too, which was to be discharged by the petitioner himself only by placing the said order on record by virtue of which, the proceedings, which were allegedly initiated on 24th June, 2004, is alleged to have been dropped by the S.D.M. Hence, I am of the view that in the absence of there being any evidence or document on 10 record to the contrary, what bearing would the proceedings dated 24th June, 2004, would have had on the subsequent proceedings cannot be arrived at without a proper appreciation of an order dropping the proceedings initiated by late Rameshwar Prasad, hence, at this stage, itself, this Court is of the view that the said dropping of the proceedings until and unless it is judicially sustained and proved by the petitioners, it cannot be taken by the petitioner as to be a ground of defence in the subsequent proceedings under Section 33/39, which was initiated by the respondents.
25. Apart from it, the subsequent institution of Case No. 14 of 2005, by the respondents on 18th November, 2004, under Section 33/39 of the Land Revenue Act, questioning it on the ground that the father of the respondents had not filed any recalled application to the order of 20th March 2002, passed by Naib Tehsildar, deleting the name of the grand-mother of the respondents Ramdei, and that since the respondents had not challenged the report dated 30th September, 2004, on the basis of which, the proceedings drawn by late Rameshwar Prasad was dropped, and since the respondents have not challenged the order of dropping the application dated 24th June, 2004, the petitioner's case is that the aforesaid proceedings drawn subsequently by respondents on 18.11.2004, would create a bar as against the predecessor of the respondents and even for the respondents themselves also in initiating the proceedings by way of Case No. 14 of 2005, which was instituted by them on 18th November, 2004.
26. The petitioner's case further is that the institution of the proceedings of Case No 14 of 2005, would not be legally tenable in the eyes in law for the reason being that, there have been a massive concealment of fact by the applicant of the proceedings of Case No. 14 of 2005, since they having concealed the fact of the earlier order of 20th March, 2002, it was alleged that because of the concealment of the fact of the report of 30th September, 2004, hence, they contended 11 that the proceedings initiated under Sections 33/39 was not sustainable in the eyes of law, and orders deserves to the quashed.
27. Consequently, on the application of the respondents, the proceedings, which was registered by way of Case No. 14 of 2005, the Court of Assistant Collector, 1st Class, called for a report from Tehsildar, and prior to taking any decision on Case No. 14 of 2005, initiated by respondents under Section 33/39, and consequent thereto, the record shows, that the Tehsildar has submitted a report on 9th May, 2005, before the Court of Assistant Collector, 1st Class, in case No. 14 of 2005. The contention of the petitioners in the present Writ Petition is that no reliance can be placed on the said report dated 09.05.2005 for the purposes of deciding the proceedings under Section 33/39, for the reason being that, the report thus submitted on 9th May, 2005, by the Tehsildar, it did not remark at any instance that the respondents were in possession of the property, in question. He submits that in the absence of there being any finding recorded pertaining to possession, in the report of Tehsildar, the proceedings of Case No. 14 of 2005, could not have been decided on its merit.
28. During the intervening period, the predecessors of the respondents, Mr. Rameshwar Prasad met with the said demise, and consequently, the proceedings of the Case No. 14 of 2005, the respondents were substituted, and was carried by them later.
29. The petitioners, based on the aforesaid grounds of contest as mentioned above, had filed their objection to the proceedings of Case No. 14 of 2005, on 22nd August, 2015. After the substitution of the respondents in the proceedings of Case No. 14 of 2005, when the proceedings were being conducted by the Assistant Collector, 1st Class, the respondents were examined and they had recorded their statement and they supported the averments, which were made in the application of 18th November, 2004, and also adduced the oral evidence by producing the Naib Tehsildar as PW1, in order to support 12 the report dated 9th May, 2005, and even so much so, the Naib Tehsildar, who had submitted the report dated 09.05.2005, was cross- examined on 22nd March, 2006. The Court of Naib Tehsidar, by virtue of one of the impugned judgment under challenge in the present Writ Petition, i.e. 10th December, 2009, had allowed the application of the respondents under Section 33/39, which was registered by way of Case No. 4 of 2005, and which was later on, renumbered as Case No. 1 of 2007-08, and thereby, the Court of Assistant Collector had passed the following directions:-
"oknh okn Lohdkj djrs gq, muds }kjk izLrqr fd;k x;k dkxtkr nq:Lrh dk izkFkZuki= fnukafdr 19-22-2004 okn Lohdkj fd;k tkrk gS rnkuqlkj iz"uxr lEifRr [kkrk la[;k 34 [kljk ua02402@3 {ks=Qy 0-031 gS0 fLFkr xzke o ijxuk Tokykiqj rglhy o ftyk gfj}kj uku tsM0,0 [ksoV la[;k 171@1 ls izfroknhx.k J`rqjkt o c`tjkt iq=x.k yfyr fd"kksj dk uke jktLo vfHkys[kks ls fujLr fd;k tkrk gSA izfroknhx.k ds LFkku ij oknh dk nsgkUr gks tkus ds dkj.k oknh ds LFkku ij oknh 1@1 Jh egs"k o 1@2 nsojFk o 1@3 g'kZ iq= jkes"oj }kjk laj{kd lxk HkkbZ egs"k dk uke iz"uxr lEifRr ij jktLo vfHkys[kksa esa vafdr fd;k tkdj jktLo vfHkys[k nq:Lr fd;s tkrs gSA rnuqlkj ijokuk veynjken tkjh dj i=koyh ckn vko";d dk;Zokgh nkf[ky nQrj gksosA fnukad 10-12-2009"
30. In fact, if the direction issued by the Court of Assistant Collector, 1st Class, vide its judgment dated 10th December, 2009, is taken into consideration, in fact, it has restored back the entry of the grand-mother of the respondent, i.e. Ram Dei and consequent to her death, the present respondents were directed to be recorded shown them to be in possession over the disputed property, in question.
31. One of the contentions of the petitioners in challenging the impugned judgment, is that the impugned order dated 10th December, 2009, cannot be sustained in the eyes of law for the reason being that the Court of Assistant Collector, 1st Class, has not determined any point of determination, prior to allowing the application by way of Case No. 14 of 2005, and hence, the impugned 13 order dated 10th December, 2009, suffers from the procedural vices. This Court feels it apt to answer this ground of challenge by the petitioners, at this stage itself, that the procedures under the Land Revenue Act, are governed by the provisions contained under Chapter 9 of the Land Revenue Act, 1901, and as per the provisions contained therein, the proceedings under Sections 33/39, does not fall to be a regular proceeding which are deciding a title of the party and hence, since it being a summary proceedings governed by Chapter 9, it does not entail a detailed procedure of leading of evidence, cross examination or laying down the point of determination to be answered by the Court prior to considering the application under Section 33/39 on its merits. Hence, the contention of the petitioner on the said pretext is unsustainable that the judgment of 10th December, 2009, suffered from vices of non determination of issues after its formulation.
32. The petitioners, being aggrieved against the said judgment of 10th December, 2009, passed by the Court of Assistant Collector had preferred a Revenue Revision under Section 219 of the Land Revenue Act, which was numbered as Revision No. 43 of 2009- 10, Ritu Raj and another Vs. Mahesh and others, which was preferred before the Court of Board of Revenue, and the Board of Revenue too, after considering the rival contentions had dismissed the Revision of the petitioner by one of the impugned judgments dated 22nd June, 2016. There has had been a simultaneous Revision, being Revision No. 66 of 2012-13, Brijlal Vs. Mahesh, which was preferred by the petitioners, which too stood decided and dismissed by the impugned judgment dated 22nd June, 2016.
33. It happened so, that when the proceedings of the Revision was pending consideration, the petitioner contends that in order to elucidate his case, he had filed the application under Order 41 Rule 27 of the CPC, for bringing on record the additional evidence, which was allowed by the Board of Revenue vide its order dated 9th 14 July, 2014, but this may not hold us long, for the reason being that, aggrieved against the said order of 9th July, 2014, allowing the application under order 41 Rule 27 of the CPC in a Revision under Section 219 of the Land Revenue Act, the respondents had preferred a Writ Petition, being Writ Petition No. 1715 of 2014, Mahesh Kumar Vs. Brijraj and others, and as a consequence of filing of the said Writ Petition, which when came up for consideration before the learned Coordinate Bench of this Court, the same was allowed, and the impugned order dated 9th July, 2014, allowing the application under Order 41 Rule 27 of the petitioners was set aside, and the matter was remitted back to the Board of Revenue to decide the application of the petitioners under Order 41 Rule 27, afresh. Consequently, as an effect of the remand by the judgment dated 27th May, 2015, the learned Board of Revenue, has once again had taken up the said application dated 20th January, 2014, filed by the petitioners for bringing the additional evidence on record, and by virtue of the impugned judgment dated 11th April, 2016, rejected the application, holding thereof that in a summary proceedings under the Land Revenue Act, the provisions of order 41 Rule 27 of the CPC, would not apply in the summary proceedings, which is only limited for the purposes, for making the fiscal entries in the revenue records, and since being summary in nature, it does not entail the implication of Order 41 in a Revision under Section 219 of the Act.
34. Hence, in view of the aforesaid backdrops, the present Writ Petition.
35. The petitioners had raised various contentions, which constituted as to be the part of his objection also preferred before the Court of Assistant Collector, 1st Class, having its nexus with regard to the effect of the alleged earlier orders, for example of 20th March, 2002, deleting the name of Ramdei, the effect of dropping of the alleged proceedings dated 24th June, 2004, the effect of the report of Tehsildar dated 13th September, 2004, had submitted that the 15 impugned judgment as passed by the Courts below, allowing the application under Section 33/39, would be vitiated and would not be sustainable in the eyes of law.
36. Hence, he submitted that the Writ Court, while exercising its extra ordinary supervisory jurisdiction under Article 227 of the Constitution of India, ought to interfere in the matter and set aside the order because the revenue entry restored as a consequence of the impugned judgments, which are under challenge were contrary to the earlier proceedings, which already stood culminated.
37. The petitioners' argument, which is from the view point that the culmination of the earlier proceedings would amount to be a constructive res judicata is not acceptable by this Court for the reasons being that looking to the summary nature of proceedings under Section 33/39, since it has been consistently held to be summary in nature and is only having an effect of fiscal entries, the principle of constructive res judicata would not apply as it doesn't decide title or rights of the parties over the property. The said principle is only attracted where any collateral and ancillary proceedings is having an effect of determining the rights of the parties, and even otherwise also, the petitioners cannot contend the implication of constructive res judicata, particularly when according to the documents, which has been placed on record by him, itself shows that they were the occupants in Shreni-20, and they were not holding a valid title over the property in question. Hence, the plea raised by the petitioners is turned down.
38. After having heard the learned counsel for the parties at length, and after having already discussed the above facts, this Court is of the view that this Writ Petition would not be maintainable while giving a challenge to the impugned judgments, which are summary in nature and having a fiscal effect only with regard to the payment of land revenue and since it does not entail any element of declaration of 16 right or title, the Writ may not be the appropriate remedy which is available to the petitioners for the reasons being :-
i. If the order dated 20th March, 2002 itself, is taken into consideration, the very act of deletion of the entry of Ram Dei from column-5 of Khasra of 1383 and 1386 fasli was without any authority and competence, and was never done as a consequence of culmination of any judicial proceedings, hence, were illegal, which has been restored back.
ii. Even if the khasra and khatuni entry which were placed reliance by the petitioner are taken into consideration, since their own status happen to be that of Shreni-20, it amounts to that even at that point of time when the proceedings were being conducted before the Court of Assistant Collector, 1st Class, they did not enjoy the title over the property but rather their entry in Shreni 20, was showing an occupancy of theirs, and not the title.
iii. The consistent plea of the petitioners based on Udaran khasra and khatuni, relied by the petitioners cannot be treated to be a document conferring a valid title or right as in accordance with para A-82-A and para A-60, which provides for the preparation of PA-11 and PA-3, on which, the reliance has been placed, they are only partali entries and they do not have any evidentiary value in the eyes of law. Hence, exclusively based on the said entries made in the revenue record in the Udaran Khatuni or Khasra, it cannot be said that the petitioners had acquired any title as such under the law to hold them as to be the owner of the property lying in khewat No. 171/1, over which, the petitioners claimed their title by virtue of the sale deed of 3rd October, 1939.17
iv. The controversy, as it ultimately emerges, if the impugned judgements are scrutinized, it has resultantly effected to a restoration of the entry of Ramdei, which was wrongfully deleted, and subsequently to her successors, i.e. the respondents, herein, who had been directed to be recorded to be in possession, based on the entries made in column-5 of Ram Dei of the khasras, as already referred above.
39. In view of the aforesaid, since by virtue of the impugned order, it was not having an effect of declaration of right or a title of the parties to the proceedings, the Writ remedy cannot be an appropriate remedy available to the petitioner for the redressal of his grievance except that it would be open for the petitioners to have had a recourse of instituting of regular suit for declaration of their rights, as has been protected by Section 40-A of the Land Revenue Act, 1901.
40. Hence, the Writ Petition lacks merit and the same is accordingly dismissed.
(Sharad Kumar Sharma, J.) Dated 18.11.2020 Shiv