1. Mr. Yogesh Chandra Tiwari, learned Standing Counsel
pointed out that the Hon'ble Apex Court in its judgment take
note in para 20 of the judgment about the order of the Board of
Revenue passed in review application, which was never been
challenged by the respondent/plaintiff.
2. Mr. D.S. Patni, learned senior counsel today in response to
the argument as advanced by Mr. Yogesh Chandra Tiwari on the
previous date address on four points. The first point is that the
order passed by the Collector expunging the long standing
revenue entries is completely without jurisdiction since the
procedure in terms of Section 39 of the L.R. Act was not followed
at all by taking suo moto cognizance. He submits that as per the
mandate of Section 39 of L.R. Act there has to be an application
for correction of revenue entries therefore the Collector's order
expunging old revenue entries was bad in law. He further
submits that even otherwise by virtue of Section 33 the Collector
at the most can rectify the clerical error, therefore, expunging old
revenue entries by an executive order by the Collector is not
permissible.
3. In reference to Section 33 and 39 of the Land Revenue Act
Mr. Patni placed reliance to para 11 and 12 of one of the judgment
of Allahabad High Court rendered in the case of M/s
Mahalakshmi Land and Finance Co. (Private) Ltd. Vs. Board of
Revenue, Uttar Pradesh, Lucknow and others i.e. Writ Petition
No. 1993 of 1996 decided on 30.09.1996, which read as under:
"11. The meaning of word errors used in Sub Section 2 of
Section 33 of the Land Revenue Act cannot be stretched beyond
'clerical errors' or those due to oversight about undisputed
claims. It means an error of an obvious nature, particularly a
clerical one and not an alleged mistake involving a long drawn
out dispute about rights. It contemplates a case where there is
no real dispute between the parties and the only question is
whether any accidental or clerical error was made in the
previously prepared register.
12. The nature of jurisdiction exercised by the original court
of S.D.O. or Commissioner or Board of Revenue in a correction
case under section 33/39 of Land Revenue Act remains the same
notwithstanding the change in stature of the court."
4. Apart from this, Mr. Patni submits that even if the Collector
was so adamant to expunge the revenue entries by invoking
Section 33 of Z.A.L.R. Act then atleast he has to give an
opportunity of hearing in terms of Section 39 of the Act. He
submits that entire exercise of the Collector in expunging long
standing entries appears to be a malafide.
5. Second submission of Mr. Patni is in reference to Section
227 of the L.R. Act that in terms of Section 227 Assistant Collector
is the only competent authority and not the Collector to make
necessary correction in the revenue entries, therefore on this
account also the Collector's order is bad.
6. The third submission of Mr. D.S. Patni is that by virtue of
Notification dated 30.04.1948 the respondent/plaintiff got
occupancy right over the land leased out in 1924 to Mr. V.John
and after getting the occupancy right by virtue of Amendment of
1969 in Section 131(a)-1 the respondent/plaintiff got "Seerdari
right" and then by virtue of an amendment of 1977 Section 130(b)
of Zamindari Abolition and Land Reforms Act
respondent/plaintiff got Bhumidhari right and as such even if in
1954 the lease stood expired by efflux of time the same will not
take away the occupancy right of the respondent/plaintiff over
the land in question.
7. Apart from this, Mr. Patni submits that "long revenue
entries" in the revenue records carry a legal presumption of
correctness establishes continuous possession or ownership serve
as strong evidence, often preventing challenges after a long lapse
of time and courts generally uphold these long standing entries
as these entries reflect settled facts of possession with cultivation
right.
8. Mr. Patni further submits that infact the lease of 1924 is not
under the Government Grants Act, rather it was a "special lease"
since lease does not reflect that the same is under the
Government Grants Act and as such covered by several land
reforms in terms of proviso to Section 3 of Government Grants
(U.P. Amendment) Act, 1960, which read as under:
"(3) Certain leases made by or on behalf of the Governemnt to
take effect according to their tenor- All provisions, restrictions,
conditions and limitation contained in any such creation,
conferment or grant referred to in Section 2, shall be valid and
take effect according to their tenor; any decree or direction of a
court of law or any rule of law, statute or enactment of the
Legislature to the contrary notwithstanding.
Provided that nothing in this section shall prevent, or be
deemed ever to have prevented the effect of any enactment
relating to the acquisition of property, land reforms or the
imposition of ceiling on agricultural land."
9. Mr. Patni also pointed out Chapter A VII of U.P. Land
Records Manual particularly A-121 defines "Khatauni", which
read as under:
"A-121. Definition-The khatauni is the register of all persons
cultivating or otherwise occupying land in a village prescribed
by Section 31 of the U.P. Revenue Code, 2006 as amended by the
U.P. Zamindari Abolition and Land Reforms Act."
10. Apart from this, Mr. Patni also advanced one alternative
argument that even otherwise on expiry of the lease in 1954 the
respondent/plaintiff regularly paid the enhanced lease rent and
this fact has been admitted by the State in another suit filed for
eviction in paragraph 4 of the plaint.
11. Lastly, Mr. Patni submits that infact the
respondent/plaintiff in a bonafide manner by paying a sum of
Rs. 55,000/- in 1947 got lease hold rights and since then he is in
possession and not only this since 1947 uptill 1981 in all the
revenue records the name of the respondents/plaintiffs were
recorded, therefore, at this juncture particularly when the
respondent/plaintiff is in a long possession since 1947 the
expunging of the revenue entries by the Collector that too by an
executive order is wholly unjustified.
12. In response to the argument of Mr. Patni Mr. Yogesh
Chandra Tiwari submits that the argument as advanced by Mr.
Patni in reference to Section 33 and 39 and 227 of L.R. Act are
completely misconceived for the simple reason that Section 33 of
the L.R. Act give suo moto power to the Collector to make
necessary corrections in the revenue records and Collector has all
absolute power in order to maintain the annual register make
changes that may take place in respect of any land and shall also
correct all errors and omission and this provision is not only
confined to make correction of clerical error rather Collector can
make other changes, therefore, the Collector rightly invoke the
power conferred by Section 33 of the Land Revenue Act by
expunging the entries.
13. He further submits that the argument of Mr. Patni to this
effect that only the Assistant Collector is empowered in terms of
Section 227 of L.R. Act is also misconceived since in terms of
Section 225 of L.R. Act Collector includes Assistant Collector. He
submits that the argument as advanced by Mr. Patni is also
misconceived in view of the fact that against the order of the
Collector no appeal shall lie rather the revision will lie. In
addition to this, Mr. Yogesh Chandra Tiwari submits that in this
particular case infact the sale deed/lease deed was executed in
favour of the respondent/plaintiff by V.John on 17.11.1947 but
before execution of said deed the mutation took place pursuant to
an order of "Kham Superintendent" dated 25.09.1947 i.e. prior to
the date of execution of the deed dated 17.11.1947, which is
wholly unwarranted. He submits that entries that too by Kham
Superintendent prior to the execution of sale deed itself reveals
that entries in the revenue records were made in favour of the
respondent/plaintiff illegally and as such Collector rightly
expunge these entries.
14. In addition to this, Mr. Tiwari submits that admittedly the
lease deed was executed in 1924 for 30 years and the lease deed
stipulates certain conditions particularly condition nos. d, e and
h, which are being reproduced herein as under:
"(d) the lessee agrees that he shall not claim the benefits which
agricultural tenants and lessees are given in the Tarai and
Bhabar Estate.
(e) The lessee agrees that he shall not transfer or sublet the
said plot of land without the written approval of the Deputy
Commissioner of Nainital.
(h) The lessee further agrees that if he dies heirless before the
expiry of the lease as also on the expiry of lease the land hereby
demised and all buildings standing on the land shall revert to
the lessor without compensation."
15. By referring the aforesaid conditions as stipulated in the
lease deed Mr. Yogesh Chandra Tiwari submits that surprisingly
in this particular case the lease/sale deed was executed by Mr.
V.John in favour of the respondent/plaintiff on 17.11.1947 but the
approval of the Deputy Commissioner was sought later on i.e.
16.12.1948 though as per condition no. 'e' of the lease deed such
approval has to be sought before execution of the deed. He
submits that in clause 'h' of the lease deed it is clearly mentioned
that if the lessee dies heirless before the expiry of the lease as also
on the expiry of the lease the land hereby demise and all
buildings standing on the land shall revert to the lessor without
compensation. He submits that since the lease stood expired in
1954, therefore, by virtue of condition no. 'h' the entire land and
building automatically vest with the State.
16. Finally, Mr. Tiwari concluded his argument by submitting
that in this particular case firstly the sale/lease deed was
executed on 17.11.1947 but surprisingly prior to this date
mutation took place on 25.09.1947 and not only this, the approval
of the Deputy Commissioner was obtained on 06.12.1948 but
before that the sale/lease deed was executed on 17.11.1947
though as per lease condition no. 'e' of the lease deed such
permission has to be obtained before execution of the deed. He
submits that here in this particular case the transfer by V.John to
the respondent/plaintiff is bad in law as at the time of execution
of sale/lease deed there was no approval, which was mandatory
requirement in terms of clause 'e' of the lease of 1924 and so far as
the entries in the revenue records are concerned these entries are
bad in law since entries in the revenue record were made on
25.09.1947 that too prior to the execution of the lease/sale deed
dated 17.11.1947.
17. Finally, Mr. Tiwari submits that the suit filed by the
respondent/plaintiff before the Munsif, Haldwani against
expunging of the entries by the Collector was not at all
maintainable and a specific objection was raised by the State
despite this the learned Munsif proceeded with the Trial and by
decreeing the suit the revenue entries expunged by the Collector
were restored. He submits that not only this, the Collector's order
by which the revenue entries were expunged were not set aside
by the Trial Court though there was no such relief since the
respondent/plaintiff sought only this much relief that the
revenue entries expunged by the Collector be restored. He
submits that without challenging the order of Collector revenue
entries cannot be restored, therefore, judgment and decree passed
by the Trial Court is illegal and liable to be set aside.
18. Mr. Tiwari also pointed out apart from this the
respondent/plaintiff also availed another remedy by filing a
revision against Collector's order before the commissioner but the
same was dismissed for want of jurisdiction, however, while
dismissing the revision the Commissioner also observed that the
Collector should not pass such an order expunging the revenue
entries without giving an opportunity of hearing.
19. Put up for further dictation on 17.12.2025.
(Rakesh Thapliyal, J.)
11.12.2025
PR
