Allahabad High Court
Smt. Atwariya vs Board Of Revenue And 5 Ors. on 1 December, 2022
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 52
Case :- WRIT - B No. - 19463 of 2013
Petitioner :- Smt. Atwariya
Respondent :- Board Of Revenue And 5 Ors.
Counsel for Petitioner :- Anil Kumar Mishra
Counsel for Respondent :- C.S.C.
Hon'ble Chandra Kumar Rai,J.
1. Heard Sri Anil Kumar Mishra, learned counsel for the petitioner and learned Standing Counsel for respondent nos.1 & 2.
2. As per office report dated 30.11.2022, the service is sufficient upon respondent nos.3, 4 & 6. With respect to respondent no.5, the report has been submitted that service is not sufficient as the parentage of respondent no.5 is not correct.
3. Respondent nos.3, 4 & 5 are real brothers and service is sufficient upon respondent nos.3 & 4, as such, there is no necessity to send the notice to respondent no.5 as the writ petition is of the year 2013 and even respondent nos. 3 & 4 have not put in appearance nor filed any counter affidavit in the matter.
4. Brief facts of the case are that father-in-law of the petitioner, namely, Sunder Deo was in continued possession of the Plot No.1299 area 5 bigha 11 biswa. The Plot No.1299 was having huge area of 55 bigha 5 biswa and subsequently from the Plot No.1299 new plots were created as Plot Nos.1570, 1617, 1606, 1572, 1569, 1573, 1616, 1574, 1620, 1618, 1610, 1607 & 1608. The entry in the name of the petitioner's father-in-law was in nature of Category-9 in the revenue records. The petitioner's father in law remained in possession over the 5 bigha 11 biswa area of the new Plot No.1569 Ka. After the death of father-in-law, the husband of the petitioner was in possession and after death of the petitioner's husband, the petitioner continued in possession on Plot No.1569 Ka area 5 bigha 11 biswa. Respondent nos.3 to 6 purchased the old Plot No.1299 by way of sale deed from one Ram Nath on 9.2.1968 without mentioning any boundary of the plots purchased under the sale deed. During survey record operation, the name of petitioner's father was recorded as Category-9 since 1369 fasli i.e. 1961-62. The initially said area was notified under Section 4 of the Indian Forest Act but subsequently on the objection under Section 6 of the Indian Forest, the land was excluded from the notification under Section 4 of the Indian Forest Act. The proceeding was initiated before Assistant Record Officer under Section 54 of the U.P. Land Revenue Act and the case was registered as Case No.109/110/858 under Section 4 / 54 of the U.P. Land Revenue Act. The Assistant Record Officer after considering the evidence on record as well as hearing the parties decide the case vide his order dated 7.2.2004 directing to record the name of petitioner as Bhumidhar over Plot No.1569-Ka area 5 bigha 11 biswa. Against the order dated 7.2.2004, respondent nos.3 to 6 preferred an appeal under Section 210 of the U.P. Land Revenue Act before respondent no.2 who allowed the appeal setting aside the order of the Assistant Record Officer dated 7.2.2004, hence petitioner filed revision under Section 219 of the U.P. Land Revenue Act before respondent no.4 and the Board of Revenue has dismissed the revision filed by petitioner, hence this writ petition.
5. This Court while entertaining the writ petition on 10.4.2013 passed the following interim order:
"Issue notice.
Notices on behalf of respondents no. 1 and 2 have been accepted by the office of learned Chief Standing Counsel, therefore notice need not be served again to respondents no. 1 and 2.
Issue notice to respondents no. 3 to 6 through registered post returnable at an early date.
Steps be taken within two weeks.
As an interim measure without prejudice to the right and contention of the parties, during the pendency of the writ petition, no third party right shall be created."
6. In pursuance of the order dated 10.4.2013, nobody has put in appearance nor any counter affidavit has been filed in the matter.
7. Learned counsel for the petitioner submitted that the petitioner's ancestor are therein possession of the land in dispute since long and the entry of Class-9 was in favour of the petitioner's ancestor. He further submitted that in the proceeding under Section 54 of the U.P. Land Revenue Act, the Assistant Record Officer has decided the dispute after considering the report of the Survey Naib Tahsildar and declared the petitioner as Bhumidhar and ordered to record the name of petitioner as Bhumidhar after expunging the entry of Class-9. He further submitted that in appeal without reversing the finding of fact recorded by the Assistant Record Officer and without considering the report of the Survey Naib Tahsildar in accordance with law, the appeal has been allowed. He further submitted that in revision the Board of Revenue has failed to exercise his jurisdiction as provided under Section 219 of the U.P. Land Revenue Act, as such, the writ petition be allowed and the impugned order be set aside. He further submitted that inspite of the notice to the contesting respondents, the contesting respondents have not put in appearance and they are trying to change the nature of land on spot.
8. I have considered the submissions advanced by learned counsel for the petitioner and perused the record.
9. There is no dispute about the fact that the petitioner's ancestral were recorded in Class-9 category and the land in dispute is situated in the hilly area of the District-Sonebhadra. The Survey Naib Tahsildar has found the petitioner's possession over the plot in dispute. The Assistant Record Officer while deciding the case under Section 54 of U.P. Land Revenue Act has recorded finding of fact that petitioner is in possession since long over 5 bigha 11 biswa area of plot in dispute although the entire area is very big area. The Appellate Court without reversing the finding of fact has allowed the appeal out rightly filed by the contesting respondents.
10. Since there was a report of Survey Naib Tahsildar in favour of the petitioner in which the petitioner's right, title and possession has been found in respect to the plot in dispute and the Assistant Record Officer has recorded finding of fact in favour of petitioner, as such, the order passed by the Assistant Record Officer cannot be reversed in appeal as done by the appellate Court by the impugned appellate order. The proceeding under Section 54 of the U.P. Land Revenue Act are summary proceeding and the jurisdiction exercised by the Assistant Record Officer was on the basis of the survey report and the other evidence on record, as such, the respondents can avail the remedy of regular Court against the order passed by Assistant Record Officer under Section 54 of U.P. Land Revenue Act in place of approaching the appellate forum which is nothing but abuse of process of law.
11. Considering the entire facts and circumstances of the case, the impugned revisional orders dated 10.12.2012 & 1.9.2011 passed by respondent no.1 as well as impugned order dated 23.1.2008 passed by respondent no.2 are liable to be set aside and the same are hereby set aside.
12. The writ petition stands allowed in part and the matter is remitted back before respondent no.2 to restore the appeal to its original number and decide the same in light of the observation made in the body of the judgment. Respondent no.2 shall decide the appeal after issuing notice to the appellants of the appeal and after giving proper opportunity of hearing to both parties expeditiously preferably within period of four weeks from the date of production of certified copy of this order.
13. So far as the interim protection is concerned, the petitioner has liberty for the same before the appellate Court which will be considered by the appellate Court in accordance with law.
Order Date :- 1.12.2022
Rameez
