Zakir Hasan And Others vs Board Of Revenue U.P. And Others
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Allahabad High Court

Zakir Hasan And Others vs Board Of Revenue U.P. And Others on 1 February, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:17839
 
A.F.R.
 
Court No. - 49
 

 
Case :- WRIT - B No. - 67947 of 2006
 

 
Petitioner :- Zakir Hasan And Others
 
Respondent :- Board Of Revenue U.P. And Others
 
Counsel for Petitioner :- Dr. Madhu Tandon,Ajit Kumar,G.N. Verma,Neeraj Srivastava
 
Counsel for Respondent :- C.S.C.,C.K.Parekh,C.S.Singh,Mukhtar Alam,Vivek Mishra
 

 
Hon'ble Chandra Kumar Rai,J.
 

1. Heard Mr. Mohit Kumar holding the brief of Mr. Ajit Kumar, learned counsel for the petitioners, Mr. Rajesh Kumar Tiwari, learned Additional Chief Standing Counsel for the State-respondents and Mr. Vivek Mishra, learned counsel appearing for respondent no.2-Nagar Palika Parishad now Nagar Nigam Saharanpur.

2. Brief facts of the case are that petitioners' father Tahir Hasan was the Zamindar of the plot situated in Khewat No.6/1 and 6/2 Mahalgar Daiyan, Village-Khan Alampura, Pergana, Tehsil and District Saharanpur. The aforementioned plots were situated initially under Nagar Palika Parisahd Saharanpur now Nagar Nigam Saharanpur. In the khatauni of 1371 fasli (1963-64) the plots were recorded as khudcast of petitioners' father Tahir Hasan and entry continued till the death of Tahir Hasan which took place on 15.12.1977. Petitioners being son of Tahir Hasan (recorded tenure holder) applied for mutation and Tehsildar passed an order for mutation on 19.9.1981 for recording the names of petitioners in the place of deceased Tahir Hasan. Against the order of mutation dated 19.9.1981 Nagar Palika Parisahd Saharanpur filed a restoration application which was allowed on 13.6.1984 and mutation case was restored on 13.6.1984 for fresh adjudication on merit. Tehsildar again heard the matter in presence of Nagar Palika who set up his case on the basis of sale deed alleged to be executed on 7.5.1963 in favour of Nagar Palika by Tahir Hasan and vide detailed order dated 27.8.1990 directed that petitioners are entitled to be recorded in the place of their father Tahir Hasan as petitioners are in possession over the plots in dispute and Nagar Palika Parisahd has not taken any steps for recording his name on the basis of sale deed executed long back in the year 1963. Appeal filed by Nagar Palika Parisahd under Section 210 of U.P. Land Revenue Act was dismissed on 14.8.1991 by Sub Divisional Officer. Revision under Section 219 of U.P. Land Revenue Act filed by Nagar Palika Parisahd was dismissed on 6.2.1992 by Additional Commissioner Meerut Division Meerut. Nagar Palika Parisahd applied for fresh mutation of his name in the year 1991 after 29 years on the basis of sale deed alleged to be executed by Tahir Hasan on 7.5.1963 which was allowed by Tehsildar vide order dated 22.12.1992 in arbitrary manner without affording opportunity of hearing to the petitioners as well as without setting aside the earlier mutation order passed in favour of petitioners as earlier mutation order passed in favour of petitioners had attained finality. Petitioners applied for restoration against the order dated 22.12.1992 which was set aside on 17.3.1993 and the case was restored for fresh decision. Tehsildar vide subsequent order dated 7.7.1993 again allowed the application of Nagar Palika Parisahd filed on 7.7.1993 and restored the earlier exparte mutation order dated 22.12.1992. Petitioners challenged the order dated 7.7.1993 through revision before Commissioner which was dismissed on 30.9.1993 by Additional Commissioner. A revision under Section 219 of U.P. Land Revenue Act was filed on behalf of petitioners before Board of Revenue which was entertained on 20.10.1993 and interim was also granted. Board of Revenue finally heard the revision filed by petitioners and dismissed the same vide order dated 30.10.2006, hence, this writ petition on behalf of the petitioners challenging the impugned order dated 30.10.2006, 30.9.1993 and 7.7.1993.

3. This court entertained the matter on 20.12.2006 and granted interim order which runs as follows :-

"Hon'ble Anjani Kumar, J.

Heard learned counsel for the petitioners and learned standing counsel for respondent nos.1, 3, 4, 5 and 6 as well as Sri C.K. Parekh, learned counsel for the respondent no.2. Sri Parekh prays for and is granted three weeks time to file a counter affidavit. The petitioner will have two weeks thereafter to file rejoinder affidavit.

List thereafter.

Till the next date of listing, if the petitioners are in possession of the land in dispute, shall not be dispossessed."

4. In pursuance of the order dated 20.12.2006 respondent no.2 has filed his counter affidavit and petitioners filed their rejoinder affidavit also.

5. Mr. Vivek Mishra, advocate, has filed his vakalatnama on 25.3.2022 signed by U.P. Nagar Ayukt Nagar Nigam Saharanpur as the plot in dispute has came under Nagar Nigam.

6. On behalf of petitioners a supplementary affidavit dated 15.5.2023 annexing the judgment passed by civil court dated 15.2.2007 and 24.5.2009, High Court dated 24.5.2011 as well as Hon'ble Supreme Court dated 8.5.2020 in which the civil court has passed injunction decree in favour of petitioners in respect of the same property considering the case set up by Nagar Palika on the basis of sale deed alleged to be executed on 7.5.1963. In respect of civil proceeding the facts are that petitioner no.1 Jakir Hasan filed a Suit No.276 of 1993 impleading Nagar Palika Parisahd and others as defendants for decree of of perpetual injunction, mandatory injunction as well as for damages in respect to same Khasra No.25 area 1.577 hectare which was decreed by trial court after framing issues and giving parties to lead evidence. In the aforementioned suit Nagar Palika Parisahd has set up his plea on the basis of alleged sale deed dated 7.5.1963 which was not accepted by trial court. The Civil Appeal No.10 of 2007 filed by Nagar Palika Parisahd was dismissed with cost by well reasoned judgment and decree dated 25.4.2009. The Second Appeal No.759 of 2009 filed by Nagar Palika Parisahd before this court was also dismissed by detailed judgment dated 24.5.2011 considering the various provisions of U.P. Tenancy Act, 1939, U.P. Urban Area Zamindari Abolition Act and U.P. Zamindari Abolition 1956 and Land Reforms Act, 1950. The special leave to appeal (civil) No(s)26210 of 2011 filed by Nagar Palika Parisahd before Hon'ble Apex Court was dismissed as withdrawn vide order dated 30.9.2011 with liberty to file review application before High Court. Review Application No.356417 of 2011 filed by Nagar Palika Parisahd now Nagar Nigam Saharanpur was rejected by this Court vide order dated 4.2.2013. Nagar Nigam further Special Leave to Appeal (C) No.25602-25603 of 2013 before Hon'ble Apex Court which was dismissed vide order dated 24.8.2016. Nagar Nigam further filed a Review Petition (C) No.3844-3845 of 2016 before Hon'ble Apex Court which was dismissed on 17.1.2017 and Curative Petition filed by Nagar Nigam was also dismissed on 8.5.2020.

7. Learned counsel for the petitioners submitted that petitioner was ordered to be recorded in place of his father on 27.08.1990. He further submitted that the appeal filed by the respondent no.2/Nagar Palika Parisahd against the mutation order dated 27.08.1990, was dismissed by appellate Court on 14.08.1991. He further submitted that revision filed under Section 219 of U.P Land Revenue Act against the appellate order was also dismissed on 06.02.1992. He further submitted that order of mutation was passed in favour of the petitioner has attained finality. He further submitted that respondent no.2-Nagar Palika Parisahd initiated a separate mutation proceeding on the basis of sale-deed alleged to be executed on 7.5.1963 by the petitioners' father and without affording proper opportunity of hearing to the petitioners, the mutation order was passed in favour of respondent no.2-Nagar Palika Parisahd. Counsel for the petitioner applied for restoration, appeal as well as revision, which have been dismissed by the Court concerned without considering the fact that earlier mutation order passed in respect to the property in question has not been challenged by anybody, as such, the subsequent mutation proceeding in respect to the same property cannot be entertained and allowed. He further submitted that civil suit for injunction filed by the petitioners being Suit No.276 of 1993 impleading the Nagar Palika Parisahd and others was decreed by trial Court, vide judgment and decree dated 15.02.2007, restraining the defendants from interfering in the peaceful possession of the petitioners, in any manner. He further placed issues framed in the suit in order to demonstrate that title of the plaintiffs-petitioners was examined and considering the title of the petitioners in respect to the plot in question, the decree was passed by the Civil Court. He further submitted that Nagar Palika Parisahd challenged the judgment and decree dated 15.02.2007 in appeal and ultimately special leave to appeal filed by Nagar Palika Parisahd before the Hon'ble Apex Court was dismissed affirming the judgment and decree passed by the Civil Court in Civil Suit No.276 of 1993. He further submitted that in view of the adjudication of the dispute by the Civil Court, the impugned order of mutation passed in favour of respondent no.2-Nagar Palika Parisahd be set aside and petitioners' mutation order dated 27.08.1990, be maintained.

8. On the other hand, Mr. Vivek Mishra appearing for Nagar Nigam/NagarPalika Parisahd and Mr. Rajesh Kumar Tiwari, learned Additional Chief Standing Counsel for the State-respondents, submitted that writ petition arises out of mutation proceeding, as such, the same is not maintainable. They further submitted that civil suit was filed for perpetual and mandatory injunction but the sale-deed of Nagar Palika Parisahd has not been cancelled, as such, mutation order passed in favour of respondent no.2 cannot be set aside. They further submitted that petitioners should file a suit for declaration of their right before appropriate Court.

9. I have considered the arguments advanced by learned counsel for the parties and perused the record.

10. There is no dispute about the fact that after the death of Tahir Hussain, petitioners were ordered to be recorded being legal heirs of deceased on 27.08.1990 and the mutation order was maintained in appeal as well as revision. There is also no dispute about the fact that separate mutation proceeding was initiated by respondent no.2-Nagar Palika Parisahd, which was decided in favour of Nagar Palika Parisahd but there was no challenge to the mutation order passed in favour of the petitioners. There is also no dispute about the fact that civil suit for perpetual injunction, mandatory injunction and damages filed by the petitioners in respect to the same property in dispute was decreed by the trial Court and the decree has been maintained up to the Hon'ble Apex Court.

11. In order to appreciate the controversy involved in the matter, the perusal of the relevant portion of the decree passed in Civil Suit No.276 of 1993 will be necessary, which is being produced as under :-

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12. It is very material that Civil Court has considered the case set up by Nagar Palika Parisahd on the basis of sale deed alleged to be executed on 7.5.1963 and recorded finding of fact that no right will accrue to Nagar Palika Parisahd on the basis of alleged sale deed considering the provisions contained under U.P. Tenancy ACt 1939, U.P. Urban Area Zamindari Abolition Act 1956, U.P. Zamindari Abolition Act, 1950. The judgment of trial court has been further maintained in appeal as well as second appeal by well reasoned and well considered judgement on every issues i.e. title as well as possession etc. The Hon'ble Apex Court has also maintained the judgment of all the three courts.

13. It is also material that Nagar Palika Parisahd has not taken any steps to record his name in the revenue record till 1991 on the basis of sale deed alleged to be executed on 7.5.1963, in favour of Nagar Palika Parisahd by petitioner's father. Tahir Hasan, petitioner's father expired on 15.12.1977 but Nagar Palika Parisahd has not applied for mutation till 1991 i.e. for about 28 years. In the mutation proceeding initiated by petitioners Nagar Palika Parisahd contested the matter but Tehsildar has ordered to record the name of petitioners being legal heir of deceased tenure holder Tahir Hasan vide order dated 27.8.1990 which has attained finality as such Tehsildar can not further order of mutation in respect to same property without setting aside the earlier order of mutation.

14. It also relevant to mention that although there is no limitation for filing mutation application but substantial delay of 28 years in initiating the proceeding for mutation on the basis of sale deed creates doubt about the document in question as held by this court in the case reported in 2015 (129) RD 495 Shardul Ranjan and others vs. Deputy Director of Consolidation and others. Court of Tehsildar as sell as Civil Court has considered the case set up by Nagar Palika Parisahd on the basis of alleged sale deed which requires no further interference by this Court.

15. Considering the entire facts and circumstances of the case the impugned orders dated 30.10.2006 passed by respondent no.1/Board of Revenue, 30.9.1993 paased by Additional Commissioner, Meerut Division Meerut and 7.7.1993 passed by respondent no.5/Tehsildar Sadar, Saharanpur are liable to be set aside and the same are hereby set aside.

16. The writ petition stands allowed.

17. The mutation order dated 27.8.1990 passed by Tehsildar in favour of petitioners is hereby affirmed.

Order Date :- 1.2.2024

m.a.