Allahabad High Court
Ram Asrey Das Petitioner-In-Person vs State Of U.P. Thru. Collector Unnao And ... on 3 August, 2022
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Judgement reserved on: 13.07.2022 Judgement delivered on: 03.08.2022 Court No. - 7 Case :- WRIT - C No. - 6092 of 2021 Petitioner :- Ram Asrey Das Petitioner-In-Person Respondent :- State Of U.P. Thru. Collector Unnao And Others Counsel for Petitioner :- In Person Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey Hon'ble Abdul Moin,J.
1. Heard the petitioner who appears in person, Shri Hemant Kumar Pandey, learned Standing Counsel appearing for the respondents no. 1 to 4 and Shri Dilip Kumar Pandey, learned counsel for the respondent no. 7.
2. The instant writ petition has been filed praying for the following main relief:
"(i) To issue a writ in the nature of certiorari thereby quashed the order dated 12.02.2021 passed by the opposite party no. 2 i.e. Additional Commissioner, Administrative, Lucknow Region, Lucknow, in the revision bearing no. C201910000002195 "Ram Asrey Das Versus State of U.P. Collector Unnao" filed by the petitioner against the order dated 19.10.2019 passed by the opposite party no. 3 i.e. Sub-divisional magistrate, Tehsil Purwa, District Unnao in the interest of justice."
3. The case set forth by the petitioner is that the land in dispute was of one Shri Bhimma Das. He executed a registered will deed on 16.10.1981 in favour of his chela Atal Das. It is claimed that on the basis of the said registered will deed vide order dated 07.07.1983 the land was mutated in favour of Atal Das.
4. Aggrieved against the said order an appeal under Section 210 of the U.P. Land Revenue Act, 1901 (hereinafter referred to as the Act 1901) was filed by Chandrika Das and Mangal Das. Vide order dated 14.02.1984, a copy of which is annexure 2 to the petition, the appeal was allowed and the mutation order dated 07.07.1983 was set aside.
5. Being aggrieved Atal Das filed a revision before the Additional Commissioner which was rejected vide order dated 20.08.1984. Still aggrieved Atal Das filed a revision before the Board of Revenue and the Board of Revenue vide order dated 27.12.1989, a copy of which is annexure 3 to the petition, allowed the revision and set aside the orders passed by in appeal and the revision and the initial mutation order dated 07.07.1983 was upheld. Being aggrieved a writ petition no. 788 (MS) of 1990 in re: Babadin and others vs Board of Revenue and others was filed by Babadin, Sajeevan Lal and Mangal Das before this Court.
6. It is alleged that during the pendency of the said writ petition, Chheda Das, Sundar Das and Rajju Das had got executed a fake will deed dated 09.09.1999 and on the basis of the same the disputed land was entered in the name of Chheda Das, Sundar Das and Rajju Das in the year 2000. The copy of the khatauni has been filed as annexure 6 to the petition.
7. In the meanwhile on 05.01.2000 Atal Das died and the petitioner filed an application for being substituted as legal representative of Atal Das. The said application has been allowed by this Court vide order dated 20.07.2012, a copy of which is annexure 4 to the petition. Subsequent thereto the writ petition was dismissed vide judgment and order dated 01.08.2012, a copy of which is annexure 5 to the petition, on the ground that the petitioners had an alternative remedy available to them.
8. It is claimed that the petitioner filed an application for mutation of the disputed land in his own name before the authorities concerned and when the said application was not decided he filed Writ Petition No. 8480 (MS) of 2013 in re: Ram Ashray Das vs District Magistrate, District Unnao and 3 others and this Court vide order dated 20.12.2013, a copy of which is annexure 7 to the petition, disposed of the petition with a direction to the authorities concerned to decide the application of the petitioner for entering his name in the revenue records.
9. Subsequent thereto the Collector Unnao vide order dated 09.04.2014, a copy of which is annexure 8 to the petition, rejected the claim of the petitioner by holding that there was no specific direction of this Court to mutate the name of the petitioner. Being aggrieved the petitioner filed Writ Petition 5944 of 2014 in re:Ram Ashray Das vs State of U.P. and others challenging the said order.
10. A division bench of this Court vide judgment and order dated 27.04.2016, a copy of which is annexure 9 to the petition, disposed of the petition requiring the petitioner to file an application under Section 34 of the U.P. Land Revenue Code 2006 (hereinafter referred as Code 2006) and the same was required to be decided in accordance with law.
11. The mutation application was rejected vide order dated 15.05.2017. Being aggrieved the petitioner filed an appeal before the Sub Divisional Magistrate. The said appeal was allowed vide order dated 17.12.2018, a copy of which is annexure 10 to the petition, and the matter was remanded back to the authorities concerned to decide the matter afresh. The concerned authority vide order dated 10.05.2019, a copy of which is annexure 13 of the petition, rejected the application of mutation by holding that the petitioner is not the legal heir of Bhimma Das. Further, considering the provisions of Section 111 of the Code 2006 the authority has also held that as per the land record entries the disputed land is recorded in the name of the temple "Shankarji Virajman Mandir' with the names of Chheda Das chela Baba Atal Das, Sundar Das chela Baba Bhimma Das and Rajju Das chela Baba Bhimma Das and accordingly keeping in view Section 111 of the Code 2006 the said mutation of the petitioner would not be possible. It has also been indicated that the writ court vide order dated 20.07.2012 has never recognized the petitioner as legal heir of late Atal Das and further no effort has been made by the petitioner for cancellation of the earlier entries and thus the application was rejected. It has also been provided in the said order that till such time any of the parties get an order in their favour from a competent Court of law and in order to protect the disputed land, the same has been entered in the name of State Government.
12. Being aggrieved the petitioner filed an appeal before the Sub-Divisonal Magistrate which was dismissed vide order dated 19.10.2019, a copy of which is annexure 14 to the petition, and even the revision filed under Section 219 of the U.P. Land Revenue Act, 1901 was dismissed vide order dated 12.02.2021 affirming the orders dated 10.05.2019 and 19.10.2019. Being aggrieved the instant petition has been filed praying for the aforesaid relief(s).
13. The petitioner who appears in person has argued that the order dated 10.05.2019 has been passed with patent non-application of mind to the relevant facts of the case and the authority has failed to consider that the Writ Court vide order dated 20.07.2012 has held the petitioner as a legal heir of Ram Ashray Das. Ignoring this fact the authorities have failed to notice that when the petitioner is the real grandson of Bhimma Das and the chela of Atal Das as such it is the petitioner who is the real heir of the disputed property. It is also contended that the authorities have failed to consider that the mutation entries that had been made in the name of Chheda Das, Sundar Das and Rajju Das and the disputed land having been recorded in the name of the temple could not validly have been done by the authorities concerned. It is thus argued that there could not by any occasion for the authorities concerned to follow the provisions of Section 111 of the Code 2006 and vest the land in the State.
14. It is contended that upon an appeal being filed before the appellate court the appellate court vide order dated 19.10.2019 failed to appreciate the aforesaid facts and dismissed the appeal. Upon a revision being filed even the revisional Court did not consider the aforesaid facts and the revision was wrongly dismissed.
15. Canvassing the aforesaid grounds the petitioner vehemently argues that the impugned orders are bad in the eyes of law and merit to be quashed.
16. On the other hand Shri Hemant Kumar Pandey, learned Standing appearing for the State and Shri Dilip Kumar Pandey, learned counsel appearing for the Gram Sabha have argued that there is no infirmity in the order dated 10.05.2019 passed by the competent authority whereby the application for mutation filed by the petitioner had been rejected. It is also argued that all the facts have been considered by the appellate court vide order dated 19.10.2019 and the revisional court vide order dated 12.02.2021.
17. Elaborating the same it is contended that admittedly as per the Khatauni annexed by the petitioner himself, the land in dispute is recorded in the names of Chheda Das, Sundar Das and Rajju Das duly indicating the name of a temple namely "Shankarji Virajman Mandir". In the initial order dated 10.05.2019 passed by the competent authority while exercising powers under Section 34 of the Code 2006 it has specifically been recorded that firstly the petitioner cannot be considered to be the legal heir of Ram Ashray Das in as much as this Court vide order dated 20.07.2012, upon a substitution application having been filed by the petitioner, was indicated as legal representative and not legal heir. In the capacity of being legal representative he could only contest the writ petition and not get the rights of the person of whom he claims to be a legal representative. Thus he cannot be considered to be a legal heir. Further, as per the land records the names of Chheda Das, Sundar Das and Rajju Das have been recorded alongwith the name of the temple which entries have not been challenged by the petitioner at any stage of time.
18. It is contended that even if the case of the petitioner is that the names of Chheda Das, Sundar Das and Rajju Das and the temple were wrongly recorded on the basis of a forged will, the same should have been challenged and the petitioner should have staked his claim for being recorded in place of Atal Das but he failed to do so. The names of Chheda Das, Sundar Das and Rajju Das which were recorded vide order dated 15.05.2000 on the basis of the alleged forged will, as per the petitioner, have also not been challenged and the said order is still valid as of today. Accordingly, balancing the interests of the parties, while rejecting the application of the petitioner for mutation of his name and at the same time considering that the land in dispute is in the name of temple, the powers under Section 111 of the Code 2006 have been exercised and the land has been vested in the State till such time any Court of competent jurisdiction rules in favour of either of the parties.
19. It is further argued that the appeal filed by the petitioner has been rejected by the appellate court finding no illegality or infirmity with the order passed by the competent authority under Section 34 of the Code 2006 and even the revisional court has not found any illegality with the said order.
20. Learned Standing Counsel fairly argues that once the land has only been vested in the State till such time any of the parties get the order pertaining to the title from a competent Court of law as such it is always open for the petitioner to get an order from a competent court of law so as to claim his title over the land in dispute.
21. Heard the petitioner who appears in person and learned counsel for the respondents and perused the record.
22. As the petitioner has himself appeared and argued the case and there was no counsel representing him, as such, this Court has taken the responsibility of carefully and painstakingly going through all the documents as have been filed in the instant case.
23. Upon perusal of the record it emerges that one Shri Bhimma Das was the owner of the land in dispute. He had executed a registered will deed on 16.10.1981 in favour of his chela Atal Das and on the basis of the same the land was mutated vide order dated 07.07.1983 in favour of Atal Das. Chandrika Das and Mangal Das filed an appeal against the said order which was allowed vide order dated 14.02.1984 and the mutation order dated 07.07.1983 was set aside. Being aggrieved Atal Das had filed a revision which was rejected vide order dated 20.08.1984 which resulted in a revision being filed before the Board of Revenue by Atal Das and the Board of Revenue vide order dated 27.12.1989 allowed the revision, set aside the orders passed in appeal and the revision and the initial mutation order dated 07.07.1983 was upheld. Being aggrieved Babadin, Sajeevan Lal and Mangal Das filed Writ Petition no. 788 (MS) of 1990 before this Court.
24. During the pendeny of the writ petition, a will deed dated 09.09.1999 was executed in favour of Chheda Das, Sundar Das and Rajju Das and on the basis of the same, the disputed land was mutated in the name of Chheda Das, Sundar Das and Rajju Das and a temple in the year 2000. On 05.01.2000 Atal Das died and the petitioner herein filed an application for being substituted as legal representative of Atal Das which application was allowed by this Court vide order dated 20.07.2012. Subsequent thereto the writ petition was dismissed vide judgment and order dated 01.08.2012 on the ground that the petitioners therein had an alternative remedy available to them.
25. Thereafter the petitioner claims to have filed an application for mutation of the disputed land in his own name and when the application was not decided he filed Writ Petition No. 8480 (Misc. Single) of 2013 before this Court and this Court vide order dated 20.12.2013 directed the authorities concerned to decide the application of the petitioner for entering his name in the revenue records. The Collector, Unnao vide order dated 09.04.2014, rejected the claim of the petitioner. Being aggrieved the petitioner filed another writ petition numbered as Writ Petition No. 5944 (Misc. Bench) of 2014 challenging the rejection order. A Division Bench of this Court vide judgment and order dated 27.04.2016 disposed of the petition requiring the petitioner to file an application under Section 34 of the Code 2006 and the same was required to be decided in accordance with law.
26. The competent authority vide order dated 15.05.2017 rejected the mutation application and being aggrieved the petitioner filed an appeal before the appellate court which appeal was allowed vide order dated 17.12.2018 and the matter was remanded back to the authorities concerned to decide the matter afresh. The competent authority vide order dated 10.05.2019 rejected the application of the mutation filed by holding that the petitioner is not the legal heir of Bhimma Das despite he having indicated in his application that he is the grandson of Bhimma Das. It was also indicated in the said order that the disputed land is recorded in the name of a temple with the names of Chheda Das chela Baba Atal Das, Sundar Das chela Baba Bhimma Das and Rajju Das chela Baba Bhimma Das and the said order has not been challenged. However considering the dispute and the fact that the land was recorded in the name of a temple, the competent authority under Section 111 of the Code, 2006 entered the land in the name of the State Government till such time any of the parties get an order in their favour from a competent court of law.
27. Upon appeal being filed before the appellate court the same was dismissed vide order dated 19.10.2019 and even the revision filed under Section 219 was dismissed. Being aggrieved by the orders dated 19.10.2019 and 12.02.2021, the instant writ petition has been filed.
28. From perusal of the record it is apparent that the ground of rejection by the competent authority of the petitioners' application under Section 34 of the Code 2006 vide order dated 10.05.2019 is that the petitioner is not the legal heir of Bhimma Das and that the disputed land stands in the name of a temple alongwith the names of Chheda Das, Sundar Das and Rajju Das which entry has not been challenged by the petitioner and consequently, in order to protect the disputed land and the same being in the name of a temple, the land has been vested in the State under Section 111 of the Code 2006.
29. The ground taken by the petitioner that this Court vide order dated 20.07.2012 passed in Writ Petition no. 788 (MS) of 1990 had allowed the substitution application and thus he became the legal heir of Atal Das and was thus entitled for mutation of his name in the records as also in the capacity of being the real grand son of Bhimma Das, is patently misconceived in as much as this Court vide order dated 20.07.2012 only allowed the substitution application of the petitioner for being substituted as legal representative of Atal Das for the purpose of writ proceedings. By no stretch of imagination or by operation of any law could legal representative be considered as the legal heir in the absence of any declaration from a competent court of law.
30. This aspect of the matter has been considered by Hon'ble the Apex Court in the case of Jaladi Suguna (Deceased) through LRS vs Satya Sai Central Trust and others reported in (2008) 8 SCC 521 wherein the Apex Court has held as under:
"Only when the question of legal representative is determined by the court and such legal representative is brought on record, it can be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject matter of the suit, vis-a-vis other rival claimants to the estate of the deceased."
31. From perusal of the aforesaid judgment it is apparent that it is only when the question of legal representative is determined by the Court and such legal representative is brought on record, can it be said that the said estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will be for the limited purpose of representation of the estate of the deceased for adjudication of that case and the said determination will not confer on the person held to be legal representative any right to the property which is subject matter of the suit vis-a-vis other rival claimants to the estate of the deceased.
32. Accordingly, when the order of the writ court dated 20.07.2012 is seen in the light of the judgement of the Hon'ble Apex Court in the case of Jaladi Suguna (supra) it comes out that firstly the writ court did not determine as to whether the petitioner is legal representative under Order 22 Rule 5 in as much as it was simply on the application filed by the petitioner for being substituted as a legal representative that the application was allowed without determination. Even if for the sake of arguments it is accepted that such determination was there, even then, such determination would be for a limited purpose i.e. it would not confer on the petitioner any right to the property, in this case the land in dispute, vis-a-vis other rival claimants. Thus, the said ground being misconceived is rejected.
33. As regards the argument that the petitioner in the capacity of being the real grandson of the Bhimma Das would be entitled to have his name mutated in land records, suffice to say that the competent authority has categorically recorded that Chheda Das, Sundar Das and Rajju Das are recorded in the land records and the land in dispute is also recorded as a temple and no efforts have been made by the petitioner to challenge the said entry. Accordingly, in absence of any challenge having been raised, the Court does not find any illegality or infirmity in the order by which the mutation application was rejected. The petitioner has also admitted in the writ petition that the disputed land has been recorded in the names of Chheda Das, Sundar Das and Rajju Das on the basis of some alleged forged will. Whether the will deed was forged or not and whether the land was correctly recorded in the name of Chheda Das, Sundar Das and Rajju Das can only be seen in case a challenge was raised to it which the petitioner had failed to do and thus the said fact could not have been seen by the authority while considering the application of the petitioner.
34. So far as the land being vested in the state in terms of Section 111 of the Code 2006 is concerned, perusal of the order dated 10.05.2019 would indicate that the authority concerned has observed about the claim of the petitioner but has contended that as there is a dispute and the land is recorded in the name of the temple as such till such time any of the parties get an order in their favour from a competent court of law, in order to protect the land in dispute, the land has been vested in the State. The Court does not find any illegality or infirmity in the said order as the order has been passed in order to protect the interest of the parties concerned, more particularly, when the land is recorded in the name of a temple.
35. So far as the appellate order and the revisional order dated 19.10.2019 and 12.02.2021 are concerned, perusal of the same would indicate that both the courts have applied their mind to the relevant facts of the case and have not been persuaded to take a different view. The grounds as have been urged by the petitioner while arguing in person specifically find place in the impugned orders and the petitioner has been unable to persuade this Court to take a different view. Even otherwise having perused the records passed by the authorities and the revision, this Court also does not find any illegality or infirmity in the impugned orders.
36. In view of the aforesaid, no case for interference is made out. Accordingly the writ petition is dismissed.
Order Date :-3.8.2022/J.K. Dinkar (Abdul Moin, J.)