Dismissed

Omkar and 8 Others v. State of U.P. and 6 Others

Allahabad HC12 Oct 2023WRIC/24201/2023

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging mutation orders due to significant laches (approx. 7 years and 4 months). The adjudication of property rights was directed to the pending suit under Section 144 of U.P. Revenue Code, 2006 before the Sub-Divisional Officer. Recourse to Article 226 was denied as the matter is summary in nature and sub judice.

What did the court decide?

Writ petition dismissed; pending suit under Section 144 of U.P. Revenue Code, 2006 directed to be decided expeditiously by the Sub-Divisional Officer.

Omkar and 8 Others Vs State of U.P. and 6 Others — Property and Title | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:197214

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Court No. - 51

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Case :- WRIT - C No. - 24201 of 2023

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Petitioner :- Omkar And 8 Others Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Udai Chandani,Aniruddh Kumar Counsel for Respondent :- C.S.C.,Pankaj Kumar Gupta

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Hon'ble Chandra Kumar Rai,J.

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Heard Mr. R.K. Shukla, Advocate holding brief of Mr. Aniruddh Kumar, learned counsel for the petitioners, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Pankaj Kumar Gupta, learned counsel for the respondent - Land Management Committee.

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Brief facts of the case are that one Jaggan was recorded tenure holder of the plot in dispute. Jaggan had two sons, namely, Bhola & Chinku. Bhola had a son, namely, Ram Prasad and petitioner nos.1 to 5 are the sons of Ram Prasad. Chinku was married with Smt. Sukhana Devi and from the wedlock of Chinku & Shukhna, Sadhuram was born. Sadhuram was married to Arti and after marriage, Sadhuram had expired, accordingly, Arti re-married to one Vindeshwari. It is also mentioned in the writ petition that a unregistered Will-deed was executed on 12.3.1972 by Chinku in favour of Ram Prasad (father of petitioner nos.1 to 5) accordingly, in the proceeding under Section 34 of U.P. Land Revenue Act, 1901 the name of petitioners' father, namely, Ram Prasad was ordered to be recorded in place of Chinku son of Jaggan on the basis of unregistered Will-deed dated 12.3.1972 vide order dated 30.11.1988. Against the order dated 30.11.1988 restoration application / recall application was filed by Rajendra alias Yogendra who was claiming right on the basis of succession in respect to the property of late Chinku. The recall application was allowed vide order dated 11.2.2005 setting aside the order dated 30.11.1988 & restored the case for fresh decision. The Tahsildar vide subsequent order dated 24.1.2006 directed to

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record the name of Rajendra Prasad son Ori on the basis of succession in place of deceased Chinku son of Jaggan. Petitioners' father as soon as came to know about the orders dated 24.1.2006 & 11.2.2005, filed applications dated 27.3.2006 and 13.3.2006 before Tahsildar. Both the aforementioned applications were consolidated and were heard by the Tahsildar. The aforementioned applications were rejected by the Tahsildar vide order dated 6.4.2011. During pendency of restoration application dated 27.3.2006 & 13.3.2006 petitioners' father executed a sale-deed in favour of Mohd. Hussain & Sana Ullah, who filed two recall applications dated 11.4.2011, accordingly, Tahsildar vide order dated 11.4.2011 has stayed the operation of the order dated 11.4.2011, which was dismissed vide order dated 26.5.2011. Revision filed by the petitioners' father was also dismissed vide order dated 30.10.2015. Against the order dated 30.10.2015 revision was filed by Mohd. Hussain before the Board of Revenue, which was dismissed as not pressed vide order dated 19.4.2023. Petitioners are challenging the orders dated 30.10.2015, 26.5.2011, 6.4.2011, 11.2.2005 & 24.1.2006 passed in the mutation proceeding.

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Stamp reporter has reported the laches of 2724 days (about 7 years & 4 months) in filing the writ petition and there is no explanation regarding the laches reported by the stamp reporter.

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Learned counsel for the petitioners submitted that the name of petitioners' father was ordered to be recorded on the basis of unregistered Will-deed, which has been cancelled by any Court, as such, order of Tahsildar should not be interfered with by the Court in the proceeding under Section 34 of U.P. Land Revenue Act, 1901 / Section 34/35 of U.P. Revenue Code, 2006. He further submitted that the restoration proceeding initiated by the private respondent was abuse of process of law but the same was allowed and by the subsequent order, Tahsildar has passed the order for recording the name of respondent no.7 on the basis of succession and name of petitioners' father was ordered to be expunged. He further

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submitted that the revision filed by the petitioners' father Ram Prasad has been also dismissed in the arbitrary manner. He next submitted that the suit under Section 229B of U.P.Z.A. & L.R. Act filed by the petitioners' father in respect to the holding of different village although on the basis of same, Will-deed was decreed and the decree has attained finality. He also submitted that in respect of the village in question where the property in dispute is situated another suit under Section 144 of U.P. Revenue Code, 2006 has been filed by the petitioners being Suit No.T202317630202355 of 2023 is pending before the Sub-Divisional Officer, Mahod, Bansi, DistrictSiddharthnagar. He further submitted that the order passed by the Tahsildar expunging the petitioners' father entry as well as revisional order be set aside and matter be sent back to the Tahsildar to examine the issue again in accordance with law after affording proper opportunity of hearing to the petitioner.

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On the other hand, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and learned counsel for the respondent- Land Management Committee submitted that the suit for declaration has already been filed by the petitioners, which is pending before the Court of Sub-Divisional Officer. They further submitted that the writ petition filed with laches of 8 years arising out of mutation proceeding should not be entertained as the order for mutation has been passed by the Tahsildar in favour of private respondent in the year 2011 and suit for declaration filed by the petitioners themselves is pending before the regular Court, as such, in view of the law laid down by this Court in the case of Smt. Kalawati Vs. Board of Revenue and Others, reported in (2022) 155 R.D. 169, the writ petition is liable to be dismissed.

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I have considered the argument advanced by learned counsel for the parties and perused the records.

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There is no dispute about the fact that the dispute relates to the holding

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of Late Chinku son of Jaggan and Tahsildar has initially passed the order for mutation in favour of the petitioners' father on the basis of unregistered Will-deed but subsequently, the order was recalled at the instance of private respondent no.7 and subsequent order was passed to record the name of respondent no.7 in place of deceased Chinku. There is also no dispute about the fact that the revision filed by the petitioners' father has been also dismissed. There is also no dispute about the fact that the suit for declaration under Section 144 of U.P. Revenue Code, 2006 filed by the petitioners is pending in respect to the property in dispute before the Court of Sub-Divisional Officer.

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In order to appreciate the controversy, the finding recorded by the Tahsildar under the order dated 6.4.2011 will be relevant for perusal, which is as under:

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" नययययलयतहससलदयरबबसस , जनपदससदयररनगर

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वयदसस० 154/88 अनतगरतधयरय 34 भभ - रयजसवअसधननयम

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रयमपसयद बयबतममजयपसचमयहनसतपपयककदयरन बनयम परगनयबबससपभरब रयजजनदउररययगजनद जनपदससदयररनगर

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आदजश

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पसतकतवयदकययमसपयररनय - पतपरआधयररतहहआदजशनदनयसक 11.02.05 कजनवरद 27.03.06 कयवआदजशनदनयसक 24.01.06 कजनवरद 13.06.06 कयरयमपसयददयरयकययमसपयररनयपतपसतकतनकययगयय।सजसपरआपसतरयजजनद पसतकतहहई , उभयपकककजनवदयनअसधवकयकयसकनयगययएवसपतयवलसकयअवलयकननकययगयय।कययमसकतयरकजनवदयन असधवकयदयरयबतयययगययनकवससयतकजआधयरपर 30.11.88 कयमजरजपकममनयमयनतणआदजशपयररतहयच क यरय। नबनयमकझजसकनजआदजशनदनयसक 11.02.05 व 24.01.06 पयररतकरनदययगययहहजयमजरजनवरदएकपकसयहह।रयजजनदयहयस कयरहनजवयलयनहसरयसकखनयबजवयनचनकभएकरजरऔरतकयखडयकरकजकययमसकरयकरमजरजपकममपयररतआदजश नदनयसक 30.11.88 वयपसकरयकररयजजनदकजपकममआदजशपयररतकरनदययगयय।रयजजनदयहयसकयरहनजवयलयनहसहहवह महरयजगसजकजनबनदजशवरसकयलडकयहहवहयसकजमतदयतयसभचसएवसपररवयररसजसटरममवहरयजजनदपकतनबनदजशवरसकजनयम दजरहह।भभनमपरमजरयकबजयहह।नमययदअसधननयमकयलयभदजतजहहयजमजरसकययमससवसकयरकरकजसकनवययसकयअवसरनदयय जयय।

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रयजजनदकजनवदयनअसधवकयककबहससकनसगययउनकजदयरयएकवसशनकययगयय।वसशववककजअनकसयरजगनकजदयलडकज नचनकभवभयलयरज , नचनकभककपतनससकखनय , पकतओरसवचयरपकनतययसशयहरयतस , मयहरयतस , गकजरयतस , वरयजरयनस , पमत रयजजनदहह।भयलयकजपकतरयमपसयदहह।वसशववकपसतकतकरनजकजबयदनवदयनअसधवकयदयरयकहयगययनकयनदनचनकभकज कयईलडकयलडककवपतनसनहहरहतबरयमपसयदकयअपसजसकवतवससयतकरयनजकककययआवशयकतयरस।वहसवयस

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धयरय -171 कजअनतगरतनवसधकउतरयसधकयरसहयतज , परनतकयहवयसतनवकतयकजनवपरसतहहकयकनकमवतकककपतनस , पकत , पकनतययसऔरपमतरजसजसकजडरसजइनकजदयरयरजरवससयततहययरककगयस।रयमपसयदकजनवरद 420 कयम क दमय पसजसकवतहहआरय।चकबनदसनययययलय , उपसजलयसधकयरसनययययलयममरयजजनदकयओरसकजपकतकजरपममसवसकयरनकयय गययहह।मवतकयसकखनयकजदयरयरयमपसयदकजपकममपयररतआदजशकजनवरदकययमसपसतकतकरनजकजसयर - सयरअपनय नयमयनतरणपयररनय - पतभसपसतकतनकययगययरय।दमरयनम क दमयसकखनयककमवतयकहयगयससजसकजकयरणवयदकक कययरवयहसबनदहयगयस।रयजजनददयरयकययमसपयररनय - पतपसतकतकरकजपकननबयदकककययरवयहसपयरमभककगयह।रयमपसयद दयरयरजरढसगसजतहययरवससयतकजआधयरपरपयपनकययगययआदजशनदनयसक 30.11.88 वयपसलजतजहहयजनययययलयदयरय रयजजनदपकतओरसकजपकममनयमयनतरणआदजशपयररतकरनदयय।रयमपसयददयरयपसतकतवससयतककछयययपनतपतयवलस परममजभदहहसजसकजहयससययगवयहस क खभनचनकभकजमवतयकसजपभवरमरगयजरजतरयदभसरजहयससययगवयहअनकरदकक बलनदयतहसनहहअसनकतहहवससयतदसतयव दजखनजसजहसकभटरनचतएवसरजरपतसतहयरहयहह।अतएवकययमसपयररनय - पतरयमपसयदननरसतकरतजहहयजमजरजपकममपयररतआदजशबहयलरखयजयय।

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उभयपकककयसकननज एवस पतयवलसकयअवलयकनकरनज कज बयदमह इसननषकरर परपहहसचतयह ह नकनचनकभ मवतककयएकमयत पकतओरसरयसजसककमवतयक उसकज जसवनकयलमम हसहयगयसरह।नचनकभ ककचयरलडनकययशयहरयतस , मयहरयतस , गकजरयतसव रयजरयनसभसहह ओरसकयपकतरयजजनदहह गयमपसचमयहनसकज पररवयररसजसटरमम नचनकभ पकतजगगनकज सयरओरसपकतनचनक रयजजनदपकतओरस --- पररवयरसजनकज सयरदजर ह।सस०एच०ह 23 भयग -1 परअमलदरयमदनदनयसक 27----- कयओरसक - सरयनपररयजजनदपकतओरसबतमरवयररसदजर नकययगययह।नचनकह भ ककपकनतयकदयरयपतयवलसमम शपर पतपसतकतनकयय गययह , सजसमम ओरसकयअपनयभयईतरयरयजजनदकयउसकयपकतसवसकयरनकययगययह।इसकह ज नवरदकयईपनतशपर - पत पसतकतनहहनकययगययह।जनपदमहरयजगह सजककमतदयतयसभचसवपररवयररसजसटरककपनतपसतकतनकययगययहह सजसम ययगजनदपकतनवनदजशवरससलखयगययह।रयजह जनदपकतओरसवययगजनदपकतनबनदजशवरसमम बहहतअनतरहह इससज दयअलग - अलग वयनकयककयबयधहयतयह।पतयवलसपरउपलबधसयकयकसह ज सपषहह नकरयमपसयददयरयबदननयतससज रजरवससयततहययर करकज रयजजनदककभभनमहडपनज कयपययसनकययगययह।ननशशचतरपसह ज रयजजनदओरसकयहसलडकयहह उसकज पकम पयररतनयमयनतरणआदजशनदनयसक 24.01.06 नवसधससगतढसगसज पयररतनकययगययहह इसज ननरसतकरयकरवयदकयलशमबत रखकरकज रयमपसयदनवसधकवयररसरयजजनदकयपरशयनकरनयचयहतयहज ।रयमपसयदकह ज पकमम पयररतआदजशनदनयसक 30.11.88 ननरसतकरनज सज पहलज नयनटस / सममनजयरसनकययगययह , परनतक रयमपसयदउपशसरतनहहहहय , तदयपरयनत सयकयकककययरवयहसपभणर करकज रयजजनदकज पकमम आदजशपयररतनकययगययह।यहआदह जशनहसनगरक नयययकज ससदयनतक अनकससयरपयररतह।ह

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उपरयकनववजचनयकज आधयरपरकययमसपयररनय - पतरयमपसयदनदनयसक 27.03.06 व 13.03.06 बलहसनहयनज कज कयरण ननरसतनकययजयतयह।रयजह जनदकज पकमम पयररतआदजशनदनयसक 24.01.06 कयबहयलरखयजयतयह।कययमसपयरह रनयपत --- नद० 30.1.06 भसननरसतनकययजयतयह।ह

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Perusal of findings recorded by the Tahsildar reveals that the order has been passed considering the evidence brought on record, which requires no interference in exercise of jurisdiction under Article 226 of the Constitution of India coupled with the fact that there is laches of about 7 years & 4 months in filing the instant writ petition arising out of mutation proceedings, which are summary in nature.

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It is also material that the suit for declaration being Suit No.T202317630202355 filed by the petitioners under Section 144 of U.P. Revenue Code, 2006 is pending before the Sub-Divisional Officer, TahsilBansi, District- Siddharthnagar/ respondent no.3.

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Considering the entire facts and circumstances, the writ petition is dismissed . However, Sub-Divisional Officer, Tahsil- Bansi, DistrictSiddharthnagar/ respondent no.3, shall decide the aforementioned pending suit for declaration, under Section 144 of U.P. Revenue Code, 2006 in accordance with law after affording proper opportunity of hearing to both parties, expeditiously preferably within a period of one year from the date of production of certified copy of this order before him, which will be decisive for the controversy involved in the matter with respect to the holding of deceased Chinku.

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Needless to say that the order passed in the mutation proceeding will not come in the way of the petitioners to establish their claim in accordance with law before the Court of respondent no.3, under Section 144 of U.P. Revenue Code, 2006.

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Order Date :- 12.10.2023 Rameez

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Digitally signed by :- RAMEEZ AHMED High Court of Judicature at Allahabad

Omkar and 8 Others v. State of U.P. and 6 Others

Case brief

What is this about?

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Omkar and 8 Others v. State of U.P. and 6 Others

Case brief

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