Kulpavitra Tyagi vs Additional Commissioner Meerut And ...
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Allahabad High Court

Kulpavitra Tyagi vs Additional Commissioner Meerut And ... on 13 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:85151
 
Reserved On:15.4.2024
 
Delivered On:13.5.2024
 
Court No. - 48
 

 
Case :- WRIT - C No. - 761 of 2005
 

 
Petitioner :- Kulpavitra Tyagi
 
Respondent :- Additional Commissioner Meerut And Others.
 
Counsel for Petitioner :- P.R. Maurya,Amitabh Agarwal
 
Counsel for Respondent :- C.S.C.,J.H. Khan,W.H. Khan
 

 
Hon'ble Chandra Kumar Rai,J.
 

1. Heard Mr. Amitabh Agarwal, learned counsel for the petitioner, Mr. W.H. Khan, learned Senior Counsel assisted by Mr. Gulrez Khan, learned counsel for the contesting respondent nos.3 to 7 and learned Standing Counsel for the State-respondents.

2. The instant petition has been filed for quashing the judgment and order dated 2.12.2003 passed by Assistant Collector / respondent no.2 and judgment and order dated 7.10.2004 passed by Additional Commissioner, Meerut Division, Meerut/ respondent no.1.

3. Brief facts of the case are that the Rohtash Singh expired on 16.3.2001 leaving behind his five sons, namely, Kulpavitra (petitioner), Hem Dutt, Daleshwar, Dhirendra and Vipin and one daughter in law Smt. Rajesh Tyagi (respondent nos.3 to 7). He further submitted that respondent nos.3 to 7 filed an application under Section 34 of U.P. Land Revenue Act, 1901 on 20.4.2001 to record their names in place of their father, Rohtash Singh on the basis of unregistered Will-deed dated 6.10.1998 in respect to Khata No.611, 612, 166. Petitioner filed an objection on 28.12.2001 before the Additional Tahsildar in the aforementioned mutation case stating that his name should also be recorded in place of his deceased father, Rohtash Singh. Against the objection of the petitioner respondent nos.3 to 7 filed their objection dated 23.1.2002 denying the right of the petitioner stating that the petitioner has already filed a suit under Section 229B / 176 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "U.P.Z.A. & L.R. Act), as such, his name cannot be recorded unless the suit filed by the petitioner is decreed in his favour. The aforementioned mutation case was decided by Tahsildar vide order dated 31.10.2002 directing to record the name on the basis of Pa.Ka-11 and the case of respondent nos.3 to 7 on the basis of Will-deed was rejected. Against the order dated 31.10.2002 passed by the Tahsildar, respondent nos.3 to 7 filed an appeal under Section 210 of U.P. Land Revenue Act, which was registered as Appeal No.5/71 of 2002 & 6/95 of 2002. Both the aforementioned appeals were consolidated and heard together. Assistant Collector vide order dated 2.12.2003 set aside the order dated 31.10.2002 passed by the Tahsildar and rejected the claim of the petitioner for recording his name in place of his father, Rohtash Singh and accepted the claim of respondent nos.3 to 7 on the ground of unregistered Will deed dated 6.10.1998 setup by respondent nos.3 to 7. Petitioner challenged the order dated 2.12.2003 by way of revision under Section 219 of U.P. Land Revenue Act, 1901 before Commissioner which was registered as Revision No.77 of 2003-2004 and 78 of 2003-2004. The aforementioned revisions were consolidated and heard together by the Additional Commissioner, Meerut Division, Meerut. The aforementioned revisions were heard and dismissed by the Additional Commissioner, Meerut Division, Meerut vide judgment dated 7.10.2004, hence this writ petition on behalf of the petitioner for the following relief:

"a writ, order or direction in the nature of certioari to quash the judgment and order dated 2.12.2003 passed by Assistant Collector. Respondent no.2 and the judgment and order dated 7.10.2024 passed by Additional Commissioner, Meerut Division, Meerut. Respondent no.1 (Annexure No.18 and 20)."

4. Learned counsel for the petitioner submitted that the mutation application has been illegally allowed in favour of respondent nos.3 to 7 only although the petitioner is also eldest son of deceased- Rohtash Singh. He further submitted that unregistered Will-deed setup by respondent nos.3 to 7 has not been proved in accordance with law, as such, petitioner cannot be denied to be recorded over the plot in question in view of the provisions contained under Section 18 of U.P.Z.A. & L.R. Act as well as in view of the nature of the entry of the plot in question which was continuing since 1336 fasli. He further submitted that the petitioner was born before the date of vesting, as such, petitioner has got birth right in respect to the plot in question. He next submitted that although suit under Section 229B of U.P.Z.A. & L.R. Act filed by the petitioner has been dismissed by all the three Courts but writ petition no.54273 of 2014 filed by the petitioner is connected along with the instant petition. He also submitted that the impugned order passed by respondent nos.1 & 2 be set aside and name of the petitioner be also ordered to be recorded along with respondent nos.3 to 7 over the plot in question.

5. On the other hand, Mr. W.H. Khan, learned Senior Counsel assisted by Mr. Gulrez Khan, learned counsel for the contesting respondent nos.3 to 7 submitted that regular suit under Section 229 B of U.P.Z.A. & L.R. Act filed by the petitioner has been dismissed by the trial Court and decree has been maintained in appeal as well as revision, as such, petitioner is not entitled to be recorded over the plot in question in the proceeding under Section 34 of U.P. Land Revenue Act, 1901. He further submitted that the writ petition arises out of summary proceeding, as such, the same is liable to be dismissed as not maintainable in view of the ratio of law laid down by this Court in the case of Smt. Kalawati Vs. Board of Revenue and Others, reported in (2022) 155 R.D. 169.

6. I have considered the argument advanced by learned counsel for the parties and perused the records.

7. There is no dispute about the fact that in the proceeding under Section 34 of U.P. Land Revenue Act, 1901, Tahsildar has ordered to record the name on the basis of Pa.Ka-11 but in appeal respondent nos.3 to 7 were ordered to be recorded on the basis of unregistered Will-deed and the name of petitioner was not ordered to be recorded in the place of Rohtash Singh. There is also no dispute about the fact that the revision filed by the petitioner has been dismissed by the revisional Court.

8. Since, the suit under Section 229B / 176 of U.P.Z.A. & L.R. Act was dismissed by the trial Court and the judgment of the trial Court has been upheld in appeal as well as in second appeal but writ petition no.54273 of 2014 filed against the judgment passed under Section 229B / 176 of U.P.Z.A. & L.R. Act has been allowed and matter has been remanded back before the trial Court to decide the suit under Section 229B/176 of U.P.Z.A. & L.R. Act afresh on merit, as such, the claim of the petitioner to be recorded over plot in question shall depend upon the adjudication, which will take place in respect to suit under Section 229B/ 176 of U.P.Z.A. & L.R. Act in pursuance of the remand order passed by this Court in Writ-B No.54273 of 2014.

9. Considering the entire facts and circumstances, no interference is required in the matter.

10. The writ petition is dismissed.

11. Needless to say that the imugned orders in the present writ petition shall be subject to the adjudication of the dispute under Section 229B / 176 of U.P.Z.A. & L.R. Act, which has been remanded back by this Court in Writ- B No.54273 of 2014 (Kulpavitra Tyagi vs. Board Of Revenue Meerut And 27 Others) and impugned orders passed in the present writ petition shall not come in the way of petitioner to establish his claim in accordance with law in the suit under Section 229B/176 of U.P.Z.A. & L.R. Act.

Order Date :- 13.5.2024

Rameez/PS*