Allahabad High Court
Saurang vs State Of U.P. Thru' Collector And 5 ... on 10 October, 2013
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. 6
Civil Misc. Writ Petition No. 56738 of 2013
Saurang Vs. State of U.P. & others
*****
Hon'ble A.P. Sahi,J.
Heard learned counsel for the petitioner, Rajiv Kumar Mishra, Sri R.C. Upadhyay for the Gaon Sabha and the learned Standing Counsel for the respondent nos. 1, 2 and 3. Sri S.C. Verma for the respondent no. 4 and Sri Ajay Kumar Singh for the respondent no. 5 and 6 have also been heard.
This is an unfortunate dispute between the real brothers who claim to be in possession over the disputed land but the benefits of the possession over the land have been acknowledged only in favour of the contesting respondents hence one of the brothers is aggrieved and is before this Court under Article 226 of the Constitution of India praying for setting aside the revisional order impugned herein dated 11.9.2013 whereby his claim has been reversed.
The facts in brief are that undisputedly the petitioner and the respondent no. 4 to 6 are the sons of the same father. The disputed holding was being claimed to be in occupation by the contesting respondents no. 4 and 5 and subsequently they filed an application for acknowledging their rights in terms of Section 122-B(4F) of the U.P. Z.A. & L.R. Act, 1950. The said claim appears to have been acknowledged in favour of the respondent nos. 4 and 5 only vide order dated 17.6.1995.
The petitioner contends that this order was obtained surreptitiously by their real brothers without informing him and therefore an application for restoring the proceedings in January, 2006 was filed by the petitioner with a prayer that the order should be modified by recording the name of the petitioner as well alongwith his brothers. On this proceeding a report was called for and the Sub-Divisional Officer proceeded to pass orders on 30th May, 2008, accepting the claim of the petitioner.
The opposite parties aggrieved by the said order filed a revision and the learned Additional Commissioner has set aside the order on two grounds, namely, that the proceedings for getting his name recorded and for restoring the matter was time barred having been filed after 11 years of the passing of the order and secondly such a claim on merits also was not admissible.
Sri Mishra, learned counsel for the petitioner submits, that if the learned Commissioner was of the opinion that delay ought to have been condoned separately before proceeding on merits, then the case should have been remanded for consideration on the issue of delay, and no finding should have been recorded on the merits of the claim of the petitioner. He further contends that even otherwise on merits, the reports in favour of the petitioner do indicate that he was also in possession and therefore was entitled to the benefit of Section 122-B(4F) of the 1950 Act. He has further relied on the apex court decision in the case of Manorey @ Manohar Vs. Board of Revenue (U.P.) and others reported in 2003 (94) RD 538 to urge that such rights are available by operation of law and do not require any declaration by filing a suit once the possession is established. He therefore submits that the impugned order deserves to be set aside and the claim of the petitioner deserves to be upheld.
On the issue of knowledge, learned counsel has further submitted that the proceedings that had terminated in favour of the respondents in 1995 were without any opportunity to the petitioner.
Sri S.C. Verma and Sri Ajay Kumar Singh for the contesting respondents urge that the petitioner had full and complete knowledge of the said order and the recording of the names of the answering respondents in the relevant revenue records but he did not raise any objection and after 11 years the petitioner filed the application which was not maintainable, inasmuch as, the proceedings that culminated in 1995 were on the strength of an administrative order and as such a restoration was not maintainable. He further submits that limitation was also staring on the face of the petitioner which was not explained on day to day basis and therefore even otherwise the restoration application has been rightly rejected by the revisional court. He further submits that in the event the petitioner is seeking any declaration of his rights interse as against the answering respondents then the remedy of the petitioner is to file a suit.
All the learned counsel for the respondents submit that they do not propose to file any counter affidavit and the matter be disposed of finally at this stage as the facts on the basis whereof the submissions have been raised are already contained in the impugned order.
Having heard learned Standing Counsel and Sri Upadhya for the Gaon Sabha what appears is that the benefit of Section 122-B (4F) was acknowledged in favour of the respondent nos. 4 and 5 only under an order of the Sub-Divisional Officer dated 17.6.1995. This order can be termed to be administrative in nature if it does not adjudicate any dispute or controversy and is founded on the basis of possession which is not disputed by the State. It is in these circumstances that the apex court in the case of Manore (supra) observed that filing of a suit was not necessary.
However, in the present case, it appears that the petitioner is claiming rights which is in the nature of a cotenancy on the ground that he was also in possession alongwith his brothers. This becomes a disputed question of fact which has to be established by leading evidence, and in the circumstances, this could not have been done by the method of a restoration application. However, the petitioner has a right to establish his possession by way of filing a suit.
Learned Commissioner while reversing the order of the Sub-Divisional Officer has made observations on the merits of the claim of the petitioner which can adversely affect him in the event the petitioner files a suit. This is because the said revision has been filed by the respondents under Section 333 of U.P. Z.A. & L.R. Act, 1950 and any finding made by the Commissioner shall become binding on a subordinate authority if a suit is tried by the Sub-Divisional Officer or by any such court of competent jurisdiction. In the circumstances, the Additional Commissioner fell in error by proceeding to record findings on merits when he had refused to accept the explanation for delay given by the petitioner in moving the restoration application. To that extent, Sri Rajiv Kumar Mishra is correct in his submission that the learned Commissioner has exceeded in his jurisdiction.
Sri S.C. Verma, learned counsel for the respondent has been unable to dispute the aforesaid proposition to the aforesaid extent and therefore this writ petition is partly allowed setting aside the order dated 11.9.2013 in so far as it seeks to declare the rights of the petitioner as against the claim of the respondent nos. 4 and 5.
The petitioner shall now be at liberty to file a suit and seek his declaration against the respondent nos. 4 and 5, if he is able to establish his possession alongwith them.
Dated: 10.10.2013
Sahu
