Allahabad High Court
Raja Ram And Ors. vs State Of ... on 26 June, 2015
Bench: Ram Surat (Maurya)
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 11
Case :- MISC. SINGLE No. - 3528 of 2015
Petitioner :- Raja Ram And Ors.
Respondent :- State Of U.P.Throu.Prin.Secy.Revenue Deptt.Lko.And Ors.
Counsel for Petitioner :- Jitendra Bahadur Singh
Counsel for Respondent :- C.S.C.,Jai Kumar
Hon'ble Ram Surat Ram (Maurya),J.
Heard Sri Jitendra Bahadur Singh for the petitioners and the Standing Counsel for the respondents.
The writ petition has been filed against the order of Additional Commissioner dated 25.11.2014 by which the revision filed by Smt. Champa Devi was allowed and the order of Sub Divisional Officer dated 29.7.2009 conferring right upon the petitioners under Section 123(2) of U.P. Act No.1 of 1951 was set aside and the matter has been remanded to the Sub Divisional Officer to decide the case on merit after hearing the parties.
The petitioners have raised construction over plot no.871 of village Fatehpur Kotehna, pargana Gwarich, district Gonda. The Lekhpal submitted a report that since the construction of the petitioners over the land in dispute was situated for more than 40 years as such he had become owner of it. On the basis of the report of Lekhpal the Sub Divisional Officer by order dated 29.7.2009 held that the petitioners had become owner of the land under Section 123(2) of U.P. Act No.1 of 1951. The order was earlier challenged by Raja Ram, who was the original tenure holder, in revision but his revision was dismissed by order dated 5.9.2009 on the ground that Raj Ram had already sold the land in dispute to Smt. Champa Devi through sale deed dated 26.2.2009, therefore, he had been left with no right over the land in dispute. Thereafter a fresh revision was filed by Smt. Champa Devi, which has been allowed by the impugned order dated 25.11.2014 by the Additional Commissioner. The Additional Commissioner in the impugned order has held that it is not clear as to whether the petitioners were entitled to be conferred any right under Section 123 (2) of U.P. Act No.1 of 1951 and the report of the Lekhpal in respect of criteria laid down for conferment of right under the aforesaid provision is silent. Accordingly, the order of the Sub Divisional Officer dated 29.7.2009 suffered from illegality. In such circumstances, the order was set aside and the matter was remanded to the Sub Divisional Officer for deciding the case afresh after hearing the parties. Hence this writ petition has been filed.
The counsel for the petitioners submits that a perusal of the report of Lekhpal shows that construction of petitioners over the land in dispute was more than 40 years old and thus the petitioners have acquired right over the land in dispute by way of adverse possession. In such circumstances, the remand of the case will be a futile exercise and right of the petitioner ought to have been accepted by Additional Commissioner himself.
I have considered the arguments of the counsel for the petitioners.
So far as the remand order is concerned, the Additional Commissioner has recorded a finding that Lekhpal has not made any report in respect of eligibility of the petitioners for conferment of right under Section 123(2) of U.P. Act No.1 of 1951. This finding does not suffer from any illegality.
So far as the right claimed by the petitioners on the basis of possession for a long period over the the land in dispute is concerned, this is a factual controversy and the petitioners are entitled to raise this plea before the Sub Divisional Officer and lead evidence in respect of possession over the land in dispute. In case evidence is led by the petitioners showing their possession for more than the statutory period then right can be conferred by the Sub Divisional officer. However, it is admitted that the house of the petitioners is existing over the land in dispute. In such circumstances, the petitioners shall not be dispossessed forcibly during the pendency of the matter before the Sub Divisional Officer. Accordingly, the writ petition is disposed of with the direction to Sub Divisional Officer to entertain the plea of the petitioners regarding adverse possession also and decide the same.
Till the disposal of the matter the petitioners shall not be dispossessed from the land in dispute.
Order Date :- 26.6.2015
mt
