Dev Narayan vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 29780 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:70568
 
Court No. - 6
 

 
Case :- WRIT - B No. - 970 of 2023
 

 
Petitioner :- Dev Narayan
 
Respondent :- State Of U.P. Thru. Prin. Secy. Revenue Deptt., Lko And Others
 
Counsel for Petitioner :- Vinod Mishra,Mahesh Kumar Sharma,Ram Naresh Singh
 
Counsel for Respondent :- C.S.C.,Manju Nagaur
 

 
Hon'ble Rajnish Kumar,J.

1. Ms. Manju Nagaur learned counsel has filed vakalatnama on behalf of repondent nos.4 to 7 and 11 and she has already filed caveat for respondent nos.8 and 9.

2. Heard Sri Vinod Mishra learned counsel for the petitioner and Ms. Manju Nagaur learned counsel for the respondents.

3. This petition has been filed challenging the order dated 10.01.2022 passed by the opposite party no.3/Sub Divisional Officer, Tehsil Ram Sanehi Ghat, District Barabanki in an Appeal no.00464 of 2021 (Shivanand and another vs Dev Narain and others) under Section 207 U.P. Revenue Code, 2006 and the order dated 17.08.2023 passed by the opposite party no.2/Board of Revenue in Revision No.430 of 2022 (Dev Narain vs Shivanand) under Section 210 of U.P. Revenue Code, 2006.

4. Learned counsel for the respondents raised a preliminary objection that this petition is not maintainable because it has been filed against the remand order and the petitioner has opportunity before the trial court.

5. Per contra, it is submitted by the learned counsel for the petitioner that the appellate court as well as revisional court without any basis have allowed the appeal and dismissed the revision without considering that the trial court has passed the order after considering the evidence on record in deference to the order, passed by this Court in Petition Misc. Single no.1459 of 2010 (Suresh Chandra vs The Board of Revenue Lko Through its Member and ors) dated 21.05.2012. He further submits that after remand by this Court, the opportunity of evidence was afforded and lastly the date was fixed for evidence on 28.11.2020, when the parties stated that the evidence has been completed, accordingly, the case was fixed for arguments and after hearing the parties trial court decided the same by means of the order dated 21.01.2021 after considering the evidence of the parties. Thus, the impugned orders are not sustainable in eyes of law and liable to be quashed.

6. Having considered submissions of the learned counsel for the parties, I have perused the records.

7. The dispute in regard to succession arose after death of Dev kali s/o Santu on 14.07.1993. Four claims were filed. One by his wife Shyama Devi @ Kusuma  Devi on the basis of succession being w/o Dev Kali (deceased), the other was filed by Girija Devi claiming herself to be the real sister of Devkali. The third claim was filed by Deo Narain and Vishnu Narain sons of Sheetla Prasad and Girija Devi claiming right in respect of the said land on the basis of Will. Fourth claim was filed by Suresh Chandra s/o Lal Bahadur claiming the right on the basis of registered Will deed executed by Shyama Devi.

8. During pendency of the proceedings Shyama Devi died, therefore, Suresh Chandra moved application for substitution. The said application remained pending and the case was decided finally on 18.04.2001. The said order was challenged in the appeal, which was allowed by the Sub-Divisional Officer recording finding that the said application could not have been kept pending for such a long time and even the case could not have been proceeded against the dead person and accordingly allowed but the appellate court did not remand the matter for deciding question of substitution in accordance with law. It appears that the said order was challenged in revision, which was allowed by the Additional Commissioner and the matter was remanded to the Tehsildar to decide substitution application in accordance with law. Thereafter, the substitution application was decided on 14.07.2003 and case was fixed for final disposal. Against the said order an appeal was preferred, which was dismissed on 04.08.2003 and the order of the Revisional Court was acted upon. The order of the Additional Commissioner/Additional Tehsildar and Sub Divisional Officer were challenged before the Board of Revenue. The Board of Revenue allowed the revision on merit and decided the case in favour of the opposite parties.

9. The orders dated 27.01.2010 and 23.02.2010 were challenged in the Writ Petition Misc. Single no.1459 of 2010 before this Court. This Court found that none of the opposite parties were allowed to adduce evidence at any point of time and only the application for substitution was allowed and case was fixed for final disposal. Accordingly, recorded a finding that the Board of Revenue could not have taken one view or the other on the basis of material before it as there was no evidence before the Board of Revenue to assess the claim of the parties and record the finding as to case of which party is established in accordance with law. This Court allowed the petition by means of the order dated 21.05.2012 and remanded the matter to the Tehsildar/Additional Tehsildar with a direction that he shall give opportunity to the parties to adduce evidence and decide the case in accordance with law.

10. In compliance of the aforesaid order passed by this Court, the Tehsildar proceeded to decide the matter and after affording opportunity of evidence decided by means of the order dated 21.01.2021 in favour of the petitioner. The said order was challenged before the Sub Divisional Officer in Appeal no.00464 of 2021, which has been allowed by means of the judgment and order dated 10.01.2022 and the order dated 21.01.2021 passed by the Tehsildar has been set aside and the matter has been remanded back with a direction to decide a fresh after taking evidence of the parties and re-examining the date of death of the deceased Shyama @ Kusuma. The appellate court, after examining the order passed by the trial court, found that the evidence of the appellants have not been considered and examined. The relevant portion of the order dated 10.01.2022 is extracted hereinbelow:

"mijksDr foospuk ds vk/kkj ij eSa bl fu'd'kZ ij igqaprk gwa fd voj U;k;ky; }kjk ikfjr vkns"k fnukad 21-01-2021 e`rd nsodyh dh tk;nkn ds lEcU/k esa gSA eq[;r;k voj U;k;ky; ds }kjk ikfjr vkns"k fnukad 21-01-2021 esa e`rd nsodyh iq= lUrw ftudh fo/kok ";keknsoh iRuh nsodyh dh e`R;q fnukad 09-01-1993 gksuk voj U;k;ky; esa layXu e`R;q izek.k o ifjokj jftLVj udy rFkk ,0Mh0vks0 iapk;r dU/kbZiqj dh vk[;k fnukad 12-02-2001 bR;kfn ds vk/kkj ij ";keknsoh dh e`R;q fnukad 09-01-1993 fl) djrs gq;s e`rd ";keknsoh ds }kjk fu'ikfnr olh;r ds vk/kkj ij fnukad 06-06-1995 dks ;ksftr dks foQy fl) djrs gq;s jsLikUMsUV la[;k&1 o 2 gd esa vkns"k ikfjr fd;k x;k gS] tcfd vihydrkZ tu dh vksj ls nkf[ky vfHkys[k lk{;] Nk;kizfr ifjokj jftLVj udy fnukafdr 23-07-1993 esa e`rd gksus dk dksbZ mYys[k ugha gS ,oa layXu Nk;kizfr xzke iz/kku }kjk fuxZRk e`R;q izek.k&i= ds voyksdu ls ;g izekf.kr gksrk gS fd dh ";keknsoh iRuh Lo0 nsodyh dh e`R;q fnukad 09-01-1995 dks gqbZ gSA blds vfrfjDRk izek.k&i= xzke iz/kku ckor mRrjkf/kdkjh nsodyh Nk;kizfr lk{; ds :i esa nkf[ky fd;k x;kA tcfd voj U;k;ky; }kjk fnukad 24-05-1995 dks lqjs"kpUn dh vksj ls e`rdk ";keknsoh mQZ dqlqeknsoh dk dk;e eqdke cuk;s tkus gsrq izLrqr izkFkZuk&i= ij jsLikUMsUV tu dh vksj ls vkifRr fnukad 19-06-1995 dks bl vk"k; ds lkFk izLrqr dh x;h fd ";keknsoh mQZ dqlqeknsoh nsodyh dh fo/kok ugha gS] cfYd ";keknsoh dh e`R;q fnukad 09-01-1993 dks gks pqdh gS] blfy, iz"uxr okn izLrqr dk;e eqdke fof/k&fo:) gS] ftls fujLr fd;k tk;A voj U;k;ky; }kjk fnukad 14-07-2003 dks mHk; i{kksa dks lqudj lqjs"kpUnz dks dk;e&eqdke cukrs gq;s i=koyh lk{; esa fu;r dh x;hA

;gka ;g fl) fd;k tkuk gS fd voj U;k;ky; esa e`rd nsodyh dh fo/kok }kjk nsodyh e`rd ds ckn mlds }kjk ,d ukekUrj.k okn tfj;s ojklr ntZ fd;s tkus gsrq fnukad 02-08-1993 dks ;ksftr fd;k FkkA mDr okn esa fxfjtknsoh }kjk fnukad 25-08-1993 dks vkifRr nkf[ky dh x;h] ftlesa ";keknsoh dks e`rd gksus dk dksbZ mYys[k ugha gS] ftldk tokc Hkh fnukad 28-02-94 dks ";keknsoh }kjk nkf[ky fd;k x;kA ftlds fu"kkuh vaxwBk yxs gq;s gSa ftldh Lohd`r ";keknsoh ds vf/koDrk }kjk dh x;h gSA vihydrkZ tu ds dFkukuqlkj ";keknsoh dh e`R;q fnukad 09-01-1995 dks gksus dh ckr dgh tk jgh gSA ";keknsoh e`rd ds ckn fnukad 06-08-1995 dks lqjs"kpUnz dh vksj ls iathd`r olh;rukek }kjk fu'ikfnr e`rdk ";keknsoh mQZ dqlek e`rd nsodyh dh tk;nkn dh okfjl gksus ds ukrs ukekUrj.k okn ;ksftr fd;k x;kA

blds vfrfjDRk voj U;k;ky; esa nkf[ky izfrfyfi fjiksVZ Fkkuk jkelusgh?kkV fnukafdr 31-12-1994 }kjk U;k;ky; lc fMohtuy eftLVsªV jkelusgh?kkV okn la[;k 68@58@29 lu 1995 vUrxZr /kkjk&145 na0iz0la0 lqjs"kpUnz cuke Jherh fxjtk esa ;g n"kkZ;k x;k fd ";keknsoh mQZ dqlqek tks nsodyh dh iRuh gS] tks thfor gSA nsodyh dh e`R;q fnukad 14-07-1993 dks gks xbZ gSA nsodyh dh lEiw.kZ tehu o tk;nkn dh okfjl Jherh ";keknsoh mQZ dqlqek dks gksuk pkfg,A

mDRk rF;ksa ds vk/kkj ij ;g fl) gksuk foQy ik;k tkrk gS fd e`rd nsodyh dh fo/kok Jherh ";keknsoh mQ dqlqek dh e`R;q fnukad 09-01-1993 dks gqbZ gSA ;gka rd ;g fl) fd;k tkuk mfpr izrhr gksrk gS fd voj U;k;ky; esa layXu ernkrk lwph fnukad 25-03-1996 ,oa xzke iapk;r vf/kdkjh }kjk tkjh ifjokj jftLVj dh udy 23-07-1993 o mDRk /kkjk&145 na0iz0la0 dh fjiksVZ fnukafdr 31-12-1994 esa ls ;g izrhr gS fd ";keknsoh dh e`R;q fnukad 09-01-1995 dks gqbZ gS ,oa jsLikUMsUV }kjk izLRkqr ifjokj jftLVj udy fnukad 28-07-1993 o 08-02-2000] 23-09-2000 ,oa iz/kku }kjk tkjh izek.k&i= fnukad 04-08-93 ls fl) gksrk gS fd nsodyh dh fo/kok dh e`R;q fnukad 09-01-1993 dks gqbZ gSA

bl izdkj mDRk lk{;ksa ds ijh{k.k ls ;g izrhr gksrk gS fd voj U;k;ky; us fxfjtknsoh }kjk ojklr ds vk/kkj ij izLrqr ukekUrj.k okn dh Lohd`r U;k; ds fl)kUrksa ds foijhr dh x;h gSA tc rd mHk; i{kksa ds }kjk izLrqr lk{;ksa dk ijh{k.k fof/kd :i ls ugha gksrk] rc rd vfUre fu.kZ; fy;k tkuk fof/kd ugha gSA

vr% mijksDr fcUnqvksa ds vk/kkj ij ;g fl) fd;k tkuk gS fd D;k olh;r xokgkas }kjk iqf'V gksrh gS ;k ughaA e`rd ";keknsoh dh e`R;q dh frfFk dh tks fHkUUkrk ikbZ x;h gS og fdl izdkj ls fLk) gksrh gSA e`rd ";keknsoh mQZ dqlqek }kjk fu'ikfnr iathd`r olh;rukek ds vk/kkj ij vihykUV tu fdl izdkj ls fl) ugha gksrs gSA bl izdkj mDr fcUnqvksa dk fuLrkj.k@lk{;ksa dk volj nsrs gq;s ijh{k.k djds vfUre vkns"k ikfjr fd;k tk;A ,slh n"kk es voj U;k;ky; }kjk ikfjr vkns"k fof/k fo:) ifjyf{kr gksrk gS] tks fujLr fd;s tkus ;ksX; gSA "

11. In the aforesaid, the appellate court found that Girija Devi though had filed an objection against the application for mutation but she had not stated about the death of Shyama Devi and only dispute was raised that the claimant is not wife of the deceased Devkali and reply of the same was also filed by Shyama Devi on 28.02.1994. The appellate court also found that Suresh Chandra was claiming right over the land in dispute on the basis of registered Will and as per the respondents i.e. the appellant in the said appeal, Shyama Devi had died on 09.01.1995 but it has not been considered. One other material evidence i.e. report dated 31.12.1994 of Police Station Ram Sanehi Ghat, through Sub Divisional Magistrate, Ram Sanehi Ghat under Section 145 Cr.P.C showing Shyama @ Kusuma alive and Dev Kali died on 14.07.1993 has also not been considered. According to which, after death of Devkali on 14.07.1993, Smt. Shyama @ Kusuma Devi is the legal heir of the property of Devkali. One other report of Gram Panchayat Adhikari has also not been considered.

12. On perusal of the order passed by the trial court, this Court does not find that the said reports have been considered by the Tehsildar. Learned counsel for the petitioner also failed to point out consideration of the said reports. He tried to argue that the same have already been considered in the previous orders passed but once the finding has been recorded by this Court in its order dated 21.05.2012 that the opposite parties have not beenl afforded opportunity of evidence, it could not have been considered and it can also not be considered at this stage because the order passed by this Court is unchallenged and the earlier order stands quashed. The contention of learned counsel for the petitioner cannot be accepted and liable to be repelled only and repelled only.

13. In view of the above and considering overall facts and circumstances of the case, this Court is of the view that there is no illegality or error in the appellate order dated 10.01.2022 and the revisional order dated 17.08.2023 passed by the Board of Revenue, which may call for any interference by this Court.

14. At this stage, learned counsel for the petitioner submits that since the case is pending since long time therefore, direction may be issued for disposal of the case within some short stipulated period. To which, there is no objection by the learned counsel for the opposite parties including the learned Standing counsel. Therefore, considering the same it is provided that the concerned court shall decide the case expeditiously within a period of six months from the date of production of certified copy of this order.

15. With the aforesaid, the petition is dismissed. No order as to costs.

(Rajnish Kumar,J.)

Order Date :- 28.10.2023/Harshita