Jokhai And Another vs Board Of Revenue And 17 Others
2023 Latest Caselaw 12002 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
RESERVED
 

 
Court No. - 4
 

 
Case :- WRIT - B No. - 934 of 2021
 

 
Petitioner :- Jokhai And Another
 
Respondent :- Board Of Revenue And 17 Others
 
Counsel for Petitioner :- Akhila Nand Pandey,Suresh Chandra Varma
 
Counsel for Respondent :- C.S.C.,K.P. Verma,R. B. Tripathi,Sri.R.K. Tripathi
 

 

 
Hon'ble Jayant Banerji,J.

1. Heard Sri S.C. Varma, learned counsel for the petitioners, Sri O.P. Sharma, learned Additional Chief Standing Counsel appearing for respondent nos.1, 2 and 3 and Sri R.B. Tripathi, learned counsel appearing for respondent nos. 5 to 9.

2. As is evident from the order dated 14.7.2021, Sri K.P. Verma, learned counsel represents respondent no.4, however, despite the list being revised, he has not appeared.

3. This writ petition has been filed seeking quashing of the judgment and order dated 8.4.2021, passed by the Board of Revenue and the order dated 30.6.2016, passed by the respondent no.2, Sub Divisional Officer, Bhadohi.

4. It is noticed that despite time being granted to the Standing Counsel, appearing for the State and to the counsel appearing for the Gaon Sabha, no counter affidavit has been filed.

5. It is stated in the writ petition that with respect to Plot No.80, area 0-18-1 bighas and Plot No.81 area 0-15-3 bighas situate in Mauja Rudrapur Taluka Chauthar, Pargana, Tehsil & District Bhadohi, the entry was in the name of the father of the petitioners and after their father's death, the names of the petitioners have continued uninterruptedly for for 44 years corresponding to the calendar years 1961 to 2006. It is stated that the petitioners are recorded as bhumidhar with transferable rights. It is stated that the plots in dispute are situated near the by-pass road and thus have high commercial value and, therefore, the private respondents in order to grab this property filed proceedings under Sections 33/39 of the U.P. Land Revenue Act, 19011 seeking to get the names of the petitioners expunged from the revenue records. By the order dated 30.06.2016, the Sub-Divisional Officer allowed the application for correction of the records and directed the names of the petitioners to be expunged from over Plot Nos.80 and 81 of Khata No.24.

6. The contention of the learned counsel for the petitioners is that the petitioners are recorded Bhumidhar with transferable rights in respect of, inter alia, plot nos. 80M. and 81 having an area 0.1901 hectares and 0.1920 hectare. It is contended that on the basis of proceedings initiated by the private respondents under the provisions of Section 33/39 of the Land Revenue Act, the long standing entry existing in favour of the petitioners over the land in dispute, was directed to be struck off and the name of respondents were directed to be incorporated therein by means of an order dated 30.6.2016. It is contended that such a reversal of long standing entry cannot be undertaken in summary proceedings, particularly in view of the fact that a suit was filed by the private respondents under the provisions of Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 19502 seeking declaration of their title in respect of the plots in dispute. It is stated that the Sub Divisional Officer has gone into merits of the entitlement of the petitioners over the property in dispute in summary proceedings which could not have been done. It is stated that title was derived by the petitioners' father with respect to the disputed plots, and by the respondent no.3 with respect to the other plots through registered lease-deeds/sale-deeds by the same Zamindar in 1959 since the Zamindari was not abolished in that area at that point of time. It is stated that instrument was executed in favour of the private respondents with respect to other plots with which the petitioners have no concern. On the basis of the registered instrument, Plot Nos.80 and 81 were transferred to the father of the petitioners and consequent entries were made in the revenue records. It is stated that there was, therefore, no question of any fraud or any entry in the revenue records being without title. It has also been stated that the private respondents have filed a declaratory suit under Section 229-B of the Act of 1950, which is still pending.

7. In the counter affidavit filed on behalf of the private respondents, it has been stated that Plot Nos.80 and 81 originally belonged to the other Zamindars who had granted lease to the ancestor-in-chief of the answering respondent, namely, Bachcha s/o Mattan and on the basis thereof right from 1320 F, 1367 F, the plots in dispute were recorded in the name of Bachcha Prasad and Jarbandhan, who was the grand-father of the answering respondent nos.5 to 9. It is alleged that all of sudden in the Khatauni of 1374 F, the name of the father of the petitioners, namely, Nanhu was got recorded without any order of the competent authority which was a forged and fictitious entry and as such proceedings were initiated by the private respondents under Section 33/39 of the Land Revenue Act for correction of the entries.

8. A supplementary counter affidavit has also been filed on behalf of the private respondents in which it has been stated that a suit bearing O.S. No.327 of 2009 was filed by the private respondents against the petitioners in the Court of Civil Judge (Junior Division), Bhadohi seeking cancellation of the lease-deeds dated 18.08.1959 and 25.08.1959. It is stated that prior to that, the private respondents filed Suit No.219 of 2009 (Kashi Nath & Ors. vs. Jokhai & Ors.) for permanent injunction in which, on perusal of the written statement filed by the petitioners, it transpired that lease-deeds dated 18.08.1959 and 25.08.1959 were allegedly executed in favour of the father of the petitioners. It is stated that O.S. No.327 of 2009 filed for cancellation of the lease deeds was decreed by the trial court vide judgment and order dated 19.07.2022.

9. Further contention of the learned counsel for the petitioners is that the impugned order dated 30.06.2016 was challenged before the Board of Revenue, but the Board of Revenue by its order dated 08.04.2021 has proceeded to reject the revision filed by the petitioners without application of mind and solely relying on the order of the Sub Divisional Officer.

10. Sri R.B. Tripathi, learned counsel appearing for private respondents has raised objection regarding maintainability of the writ petition against summary proceeding and has stated that the appropriate remedy for the petitioners would be to file a suit. Learned counsel has also referred to the judgment dated 19.7.2022, passed by the Civil Judge (Junior Division) in O.S. No. 327 of 2009 filed by the private respondents against the petitioners seeking cancellation of lease deed dated 18.8.1959. It is stated that the lease deed dated 18.8.1959 that was registered on 19.9.1959 was cancelled by judgment dated 19.7.2022. Learned counsel has relied upon a judgment of this Court dated 29.11.2022 passed in Writ-C No.21993 of 2022 and dated 16.2.2023, passed in Writ-B No.250 of 2023 to contend that proceedings for correction of the revenue records are summary in nature and so the writ petition filed by the petitioners is not maintainable, as it is for the petitioners to seek their remedy by filing an appropriate suit.

11. In the rejoinder affidavit filed on behalf of the petitioners, it has been stated that the revenue courts have proceeded to adjudicate on merits of the case of the petitioners and have exceeded their jurisdiction in doing so in summary proceedings. It is stated that the issue of fraud can only be decided in an appropriate suit filed before the appropriate forum and the revenue courts exercising jurisdiction under Section 33/39 of the Land Revenue Act are not empowered to do so. It has further been stated that the decree made in Suit No.327 of 2009 for cancellation of the lease-deeds has been filed by the petitioners in Civil Appeal No.21 of 2022 filed in the Court of the District Judge, Bhadohi and, therefore, the matter has not attained finality. It has been reiterated that a declaratory suit was filed under Section 229-B of the Act of 1950 bearing Suit No.T20161667053804 (Kashi Nath & Ors. vs. Jokhai & Ors.) is pending before the Assistant Collector, 1st Class, Bhadohi.

12. Sri O.P. Sharma, learned Additional Chief Standing Counsel has stated that the entry made in favour of the petitioners was found to be fraudulent by the Sub Divisional Officer and as such no fault can be found in the judgment.

13. No other arguments have been advanced by the learned counsel for the parties.

14. Having perused the records and considered the submissions made by the learned counsel for the parties, the Court finds that there is no dispute with regard to the fact that proceedings under Section 33/39 of the Land Revenue Act are summary in nature which cannot go to the extent of recording finding with regard to title of any party. Where the issue of fraud is involved, certainly a finding of fraud has to be recorded in appropriate proceedings after issues are framed and evidence is led.

15. Presumption of truth attached to the record-of-rights can be rebutted where there is a fraud in the entry or that the entry was surreptitiously made or that prescribed procedure was not followed.3

16. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.4

17. Any entries/corrections made in the revenue records as a result of summary proceedings are subject to adjudication of title in appropriate proceedings. The entry made in the revenue records in names of the petitioners is a long standing entry. The consistent legal position is that any person aggrieved by a long standing entry has to get his rights determined in regular suit. A categorical averment has been made by the petitioners in paragraph 14 of the writ petition regarding the private respondents filing a declaratory suit also claiming title which is still pending. In the counter affidavit dated 12.07.2021, this averment has not been denied. As noted above, the petitioners in the supplementary rejoinder affidavit have mentioned the number of the declaratory suit, which is T20161667053804, filed by the private respondents against the petitioners that is pending before the Assistant Collector, 1st Class, Bhadohi.

18. However, as it transpires from the order passed by the Sub-Divisional Officer, the petitioners were not able to produce any order of the competent authority to evince the mutation in names of the predecessors of the petitioners. Neither before the Board of Revenue nor in the present petition have the petitioners filed any such order. Under the circumstances, interference in writ jurisdiction in the present case is declined. However, it is provided that the order of correction of the revenue entry made by the Sub-Divisional Officer as upheld by the Board of Revenue shall remain subject to the decision in any suit filed/pending by or between the parties under Section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 or Section 144 of the Uttar Pradesh Revenue Code, 2006.

19. It is clarified that any observations made herein are only for purpose of adjudication of the present case and shall not be taken as an opinion by this Court on the merits of the case of either of the parties.

20. Subject to the aforesaid observations, the writ petition is disposed of.

Order Date :- 20.4.2023

sfa/SK

(Jayant Banerji, J)