Disposed

dharmendra singh v. commissioner azamgarh division and 5 others

Allahabad HC20 Apr 2018WRIC/13670/2018

Case brief

AI extract

What is this about?

This court dismissed the writ petition challenging a mutation order, finding an efficacious alternative remedy available via a declaratory suit. However, the court restrained respondents from alienating the disputed property pending the filing of that suit and an interim application.

What did the court decide?

Petitioner directed to file a declaratory suit and interim application within two weeks; respondents restrained from alienating property.

dharmendra singh Vs commissioner azamgarh division and… — Property and Title | Allahabad HC (2018)

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Court No. - 18 Case :- WRIT - C No. - 13670 of 2018 Petitioner :- Dharmendra Singh Respondent :- Commissioner Azamgarh Division and 5 Others Counsel for Petitioner :- A.P.Singh Counsel for Respondent :- C.S.C.

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Hon'ble Mahesh Chandra Tripathi,J.

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Heard Shri A.P. Singh, learned counsel for the petitioner and Shri Pankaj Rai, learned Additional Chief Standing Counsel for the State respondent nos.1 and 2.

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Notice need not be issued to the private respondent nos.3 to 6, in view of the order proposed to be passed.

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The petitioner is assailing the impugned order dated 20.12.2017 passed in Revision No.322/A (C-20141500001023) under Section 219 of U.P. Land Revenue Act (Dharmendra vs. Nayab Tehsildar, Sadar and others) and the order dated 21.8.1993 passed by the Naib Tehsildar in Case No.4/14/282, 5/39/373 under Section 34 of U.P. Land Revenue Act (Malti and others vs. Vishwanath).

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Record in question reflects that one Vishwanath died sometime in the year 1990 and after his death, the alleged mutation was applied in three sets one by Smt. Malti and others on 17.7.1991 in respect of Khata No.31 of the village Kishundaspur on the basis of sale deed; second mutation was applied on 10.9.1991 by Smt. Inra Devi in respect of Khata No.125 of village Vimiti claiming succession of deceased Vishwanath and the third mutation was applied by contesting respondent on 4.7.1991 on the ground that the Will deed was executed on 28.12.1966 by Mahadev Singh (father of Vishwanath Singh) in their favour of Khata No.31 of Village Kishunadaspur and Khata No.125 of Village Vimti. After the death of Vishwanath, a registered Will deed was executed by Inra Devi, wife of Vishwanath in favour of the petitioner and his real brother Dhirendra Kumar on 30.9.1993. In the said mutation proceedings under Section 34 of Land Revenue Act, the name of contesting respondents had been mutated way back in the year 1993. Admittedly the said order dated 21.8.1993 had been assailed by the petitioners after lapse of more than 21 years in the year 2014 and the revisional Court has proceeded to dismiss the revision on the ground of delay and laches.

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In this backdrop, learned counsel for the petitioner states that the proceedings under Section 34 of Land Revenue Act was exparte against the petitioner and once the petitioner came to

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know about the aforesaid proceeding, then he had filed the revision in question. It was incumbent upon the revisional court to appreciate the correct facts and specially delay and laches, which was beyond the control of the petitioner. It is urged before this Court that the revisional court has authority to condone the delay in question, if the case has been set up by the petitioner that at no point of time the delay was occurred deliberately and it was within his his knowledge. In paragraph22 of the writ petition, it has been stated that the petitioner is still in possession over the land in dispute and his wheat crops are standing over the same. In the garb of the impugned order the respondents are trying to take possession of the land in dispute. The request has been made that the private respondent nos.3 to 6 may be restrained from alienating or changing the nature of the property in dispute.

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Shri Pankaj Rai, learned Additional Chief Standing Counsel, on the other hand, has opposed the writ petition on the ground that the proceeding under Section 34 of Land Revenue Act is summary in nature. The petitioner has got efficacious alternative remedy to file a declaratory suit under Section 144 of U.P. Revenue Code, 2006 and the writ petition is liable to be dismissed.

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The Court has proceeded to examine the record in question specially the revisional order and finds that once efficacious alternative remedy is available to the petitioner to file a declaratory suit under Section 144 of U.P. Revenue Code, 2006, then there is no reason or occasion to intervene in the matter.

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In view of above, the writ petition is disposed of with observation that if the petitioner files a declaratory suit under Section 144 of U.P. Revenue Code, 2006 alongwith an interim application within two weeks from today, the Court hopes and trusts that the court below will decide the interim application in further two months. Till the disposal of the interim application in question, the private respondents are restrained from alienating or changing the nature of the property in dispute. Order Date :- 20.4.2018 RKP

dharmendra singh v. commissioner azamgarh division and 5 others

Case brief

What is this about?

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dharmendra singh v. commissioner azamgarh division and 5 others

Case brief

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What did the court decide?

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