Radha Devi vs State Of Up And 9 Others
2025 Latest Caselaw 9568 ALL

Allahabad High Court

Radha Devi vs State Of Up And 9 Others on 23 April, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:61481
 
Court No. - 85
 

 
Case :- WRIT - C No. - 38235 of 2024
 

 
Petitioner :- Radha Devi
 
Respondent :- State Of UP And 9 Others
 
Counsel for Petitioner :- Vishal Khandelwal
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Kshitij Shailendra,J.
 

1. Heard Shri Vishal Khandelwal, learned counsel for the petitioner and learned Standing Counsel for respondent Nos. 1 to 4.

2. One Mahesh Pal Singh executed a registered sale deed in favour of petitioner on 07.03.2014, on the basis whereof, an application for mutation was filed, which was allowed on 15.04.2014 and the name of the petitioner was mutated in the revenue records. A recall application was filed by respondents No. 6 to 9 on 06.09.2014 on the ground that Asha Devi i.e., mother of vendor Mahesh Pal Singh, in the capacity of his guardian, had already executed a sale deed dated 03.05.1999 in favour of respondents No. 6 to 9 and, therefore, subsequent sale made by Mahesh Pal Singh did not confer any right on the petitioner. The said application was rejected on 22.04.2016. An appeal was filed against the orders dated 15.04.2014 and 22.04.2016, which was allowed by the Sub-Divisional Officer concerned on 09.08.2017. The petitioner filed revision against the order dated 09.08.2017, which has been dismissed by the Additional Commissioner by order dated 12.06.2024.

3. The present writ petition has been filed against the orders dated 09.08.2017 and 12.06.2024.

4. Learned counsel for the petitioner submits that single appeal against the orders dated 15.04.2014 and 22.04.2016 was not maintainable and, therefore, the Sub Divisional Officer grossly erred in setting aside both the orders. Submission is that even if the appellate authority deemed it appropriate to allow the appeal irrespective of filing of a single appeal against two orders, only the order dated 22.04.2016 could have been set aside and, in that event, the restoration proceedings would have stood revived but, under no circumstances, initial order dated 15.04.2014 could be set aside. On merits of the objections filed by respondents No. 6 to 9, it is urged that though there was a sale deed dated 03.05.1999 executed by Asha Devi in favour of said respondents, the sale of property belonging to minor is voidable at the instance of minor after having attained majority and, therefore, there is no flaw in the sale deed dated 07.03.2014. In support of his submission, learned counsel has relied upon the judgments in Ram Prakash vs. Deputy Director of Consolidation, Hardoi and others, 2022 (3) ADJ 1 and Vijay Kumar Gupta vs. State of U.P. and others, 2008 (II) RJ 859.

5. Learned Standing Counsel, on the other hand, submits that the order dated 22.04.2016 was rightly set aside by the Sub-Divisional Officer as there was delay of only 26 days in preferring the restoration application, which was erroneously not condoned by the Tehsildar. As regards the initial order dated 15.04.2014, submission is that the same also being ex-parte, no error has been committed by the Sub Divisional Officer.

6. Having considered the submissions, I find that recall of order dated 15.04.2014 was sought by respondents after a period of five months from passing of the said order by filing application in September, 2014. The ground of recall was a previously existing sale deed, which has never been questioned. The Tehsildar rejected the recall application having found the same to be barred by 26 days. Though, it is true that single appeal was filed against the orders dated 15.04.2014 and 22.04.2016, the fact remains that initial order dated 15.04.2014 was passed on the ground that a sale deed was brought before the Naib Tehsildar and pursuant to publication made, no objections were filed. Certainly the Naib Tehsildar was not aware of execution of previous sale deed dated 03.05.1999 by mother of Mahesh Pal Singh (vendor of the petitioner). The delay of 26 days in filing recall application should have been condoned in the factual position when the respondents had come up with a plea that they acquired knowledge of proceedings on 11.08.2014 and limitation period would start to begin to run from that date.

7. As far as maintainability of single appeal against the order dated 15.04.2014 is concerned, Section 210(1)(b)(ii) of Uttar Pradesh Land Revenue Act, 1901 provides that appeal lies to the Collector from orders passed by an Assistant Collector second class or Tahsildar. Prima facie, there appears to be no bar in entertainment of a single appeal against two orders under the Act. However, if the submission of Shri Khandelwal regarding bar of limitation in relation to appeal against the order dated 15.04.2014 is considered, the said order was carried in restoration proceedings, which were rejected as barred by limitation of 26 days. Prima facie, it may appear that after setting aside the order dated 22.04.2016, the matter could have been remanded for reconsideration of restoration application, however, in totality of facts and circumstances where the initial order dated 15.04.2014 was not on merits, rather ex-parte to respondents No. 6 to 9, the initial lis would be deemed to be continuing in the form of restoration proceedings. The reason behind making this observation is that respondent Nos. 6 to 9 were never heard in the proceedings though, they had a previously executed registered sale deed in their favour not by a third person, but by mother of vendor of the petitioner.

8. As far as judgement of Division Bench in Ram Prakash (supra) is concerned, the question before the Division Bench was as to whether an appeal could be heard on merits when it was barred by limitation and as to whether first of all an application seeking condonation of delay should be entertained. The case before Division Bench, with due respect, had arisen out of proceedings from Uttar Pradesh Consolidation of Holdings Act, 1953 and interpreting the provisions of Section 53-B of the said Act which applied the provisions of Indian Limitation Act, 1963. The Division Bench observed that first of all the application seeking condonation of delay should be heard and the appeal as well as delay condonation application cannot be heard simultaneously. The fact situation was not identical in two cases, though proposition of law laid down in the authority cannot be disputed. The factual position in the present case is quite different, inasmuch as, there was no application seeking condonation of delay in filing the appeal against the order dated 15.04.2014 and in the sequence of events, there was not even necessity to file such an application as the matter was carried in restoration proceedings, initial order being ex-parte.

9. As far as the judgment in Vijay Kumar Gupta (supra) is concerned, the same had arisen out of proceedings under Indian Stamp Act. In that case, an ex-parte order was passed levying deficient stamp duty, penalty and interest whereafter a recall application was filed which was dismissed. A single appeal was filed against both the said orders and this Court found that single appeal was not maintainable. Prima facie, the judgment in Vijay Kumar Gupta (supra) appears to have arisen from similar facts, which are involved in the present case, however a close scrutiny of the said judgment would reveal that argument advanced before this Court was to the effect that when the matter was proceeding before the appellate Commissioner, he was duty bound to give an option to press the appeal against either of two orders and since this option/election was not permitted to be exercised by the petitioner for want of opportunity by the Commissioner in that direction, the petitioner therein was deprived of making his say. This Court, in the given facts of the case, set aside one of the orders and permitted the petitioner to file a separate appeal against the other order taking a plea of limitation also.

10. The present case is slightly on different footings and although it appears from the memo of revision particularly grounds No. 6 to 8 contained therein that question of maintainability of single appeal was raised before the Additional Commissioner by the petitioner, the learned Commissioner has rightly observed that in the facts of the case where a previously executed sale deed dated 03.05.1999 was existing and relevant revenue records and copy of sale deed were brought on record, grant of opportunity to contest the main mutation matter should be granted.

11. Considering the specific provisions of Section 210 (1) (b)(ii) of the Act, 1901 and nature of proceedings, one being of mutation based upon title deeds and the other decided by this Court in Vijay Kumar Gupta (supra) which was a fiscal matter where there was an ex parte levy imposed by the State upon the purchaser of the property, discretionary jurisdiction in the facts of the instant case cannot be exercised in favour of the petitioner. The reason being that initial success obtained by the petitioner was simply based upon an ex-parte order and when contest was made by respondents No. 6 to 9, they were ousted from the scene merely for the reason that, in the opinion of Tehsildar, they had approached after a delay of 26 days.

12. In this view of the matter, when the right to property is involved and sale made in favour of the petitioner was 15 years later in point of time and no third party being involved, the question of sale by the guardian being void or voidable at the instance of minor having attained majority, is a question to be decided on merits in appropriate proceedings.

13. In any case, this Court is not inclined to keep this matter pending for testing the validity of order on a technical objection as raised by the petitioner, rather it deems it appropriate in the interest of justice that main mutation matter be contested on merits inter se parties. Without recording any finding on merits of rival claims, this Court is not inclined to grant any relief to the petitioner but certainly leaving all questions on fact and law open to be raised before the first Court, i.e. Tehsildar or before any other Court.

14. With the aforesaid observations and without interfering with the orders impugned, the writ petition is disposed of.

Order Date :- 23.4.2025

Sazia

(Kshitij Shailendra, J)