Pradeep Kumar Singh Vs Addl. Commissioner (Judicial) Ist, Lucknow Division, Lucknow and Others

Neutral Citation No. - 2024:AHC-LKO:62315

Court No. - 8

Case :- WRIT - C No. - 7761 of 2024

Petitioner :- Pradeep Kumar Singh Respondent :- Addl. Commissioner (Judicial) Ist, Lucknow Division, Lucknow And Others Counsel for Petitioner :- Rakesh Kumar Srivastava Counsel for Respondent :- C.S.C.

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Hon'ble Jaspreet Singh,J.

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Heard learned counsel for the petitioner. Notice on behalf of respondent nos.1 and 2 has been accepted by the office of Chief Standing counsel.

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Under challenge are the two orders passed by the revisional court dated 20.06.2024 whereby the order passed by the Naib Tehsildar Salon dated 24.01.2024 has been affirmed leaving it open for the petitioner to exercise his statutory remedy of an appeal under the U.P. Revenue Code, 2006.

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Submission of learned counsel for the petitioner is that mutation proceedings were initiated by the petitioners on the basis of a sale deed dated 23.08.2017. In the said proceedings the private respondent nos.3 to 7 filed their objections and it was informed to the Naib Tehsildar that the private respondents had instituted a civil suit bearing Regular Suit no.1241 of 2017 wherein a decree of permanent injunction and cancellation of the sale deed in favour of the petitioner, had been claimed. Further submissions of learned counsel for the petitioner is that even on an earlier occasion similar application was moved by the private respondents which came to be rejected by means of the order dated 09.07.2019.

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Taking note of the said proceedings the Naib Tehsildar by means of the order dated 24.01.2024 has abated the proceedings. This order of Naib Tehsildar was assailed by filing revision and revisional court had noticed that in light of the remedy of appeal available to the petitioner, the said revision was held to be not maintainable and liberty was granted to the petitioner to take recourse to avail the right of appeal.

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Submission of learned counsel for the petitioner is two fold: (i) It is urged that at the very outset the Naib Tehsildar could not have abated the proceedings merely on the ground that there was a civil suit pending before the competent court and in

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support of his submissions he has relied upon the decision of this Court in Mohit Bhargav vs Board of Revenue U.P. Lucknow; 2006 (24) LCD 1478 . (ii) The other limb of the submission is that the revision of the petitioner was very well maintainable since the order passed by the Naib Tehsildar was on an application and in case, if the order is seen, it does not decide the proceedings under Section 34 completely hence,only against the final order the appeal could lie and on the said reasoning the revision was maintainable.

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The Court has heard learned counsel for the petitioner and perused the record.

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The Court finds that the petitioner had filed proceedings for mutation. The private respondents had instituted a suit before the civil court seeking decree of permanent injunction and cancellation of sale deed which is the basis of the title of the petitioner. It is not disputed by the learned counsel for the petitioner that the civil court in Regular suit no.1241 of 2017, by means of the order dated 07.11.2017, has directed the parties to maintain status quo i.e. in respect of raising any construction and in respect of possession. Copy of the said order is on record as Annexure-6. It is taking note of the aforesaid that the Naib Tehsildar has passed the order impugned dated 24.01.2024.

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From a perusal of the said order, it appears that the proceedings have been abated simplicitor on the ground that the civil suit is pending.

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Be that as it may, the issue for consideration is whether such an order could have been assailed by the petitioner by filing an appeal. Needless to say that once an order of abatement had been passed (may be on an erroneous assumption of law) yet the impact of abatement is that the proceedings came to a close. Such an order is of a final nature and apparently in terms of Section 35(4) an appeal is provided. Thus, to that extent the order passed by the Additional Commissioner rejecting the revision of the petitioner on account of availability of the remedy of appeal does not suffer from any apparent error which may persuade this Court to entertain the petition as the liberty has already been granted to the petitioner by the revisional Court while dismissing his revision to take recourse of law.

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The issue whether the proceedings could be abated can be raised before the appellate court. Hence, in view of the above, this Court is not inclined to entertain the petition, at this stage, hence the petition is dismissed as the petitioner has alternate remedy.

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It shall be open for the petitioner to take recourse to the appeal and it is further provided that in case such an appeal is filed, the same shall be considered on its own merit and any observation made by this Court may not come in the way of the petitioner and the appeal filed, if any, shall be decided on its own merit.

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Order Date :- 10.9.2024 Harshita

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Digitally signed by :- HARSHITA High Court of Judicature at Allahabad, Lucknow Bench

Pradeep Kumar Singh v. Addl. Commissioner (Judicial) Ist, Lucknow Division, Lucknow and Others

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Pradeep Kumar Singh v. Addl. Commissioner (Judicial) Ist, Lucknow Division, Lucknow and Others

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