- (1.) HEARD Sri Shukla, learned counsel for the petitioner.
(2.) THIS is a proceeding arising out of Section 34 of the U.P. Land Revenue Act. The contention raised is that the order of the reversal by the Board of Revenue on 24.9.2008 is erroneous in law in as much as the respondent nos. 5 and 6 set up a will that was taken out of juke box and then they proceeded to move an application under Section 34 of the Land Revenue Act. Learned counsel submits that if the mother of the petitioner had earlier instituted proceedings, the same would not operate as res judicata and even otherwise the petitioner was a minor at the time of death of his grandfather Prem Singh as such his interest deserves to be protected. It is with this view that the revising authority set aside the order of the authorities below and recorded a finding in favour of the petitioner which has been erroneously reversed by the Board of Revenue. Having heard Sri Shukla what appears is that the petitioner's grandfather Prem Singh was a tenure holder. The petitioner's father Ramesh is one of the sons out of three of late Sri Prem Singh. The other two sons are the respondent nos. 5 and 6. The petitioner's father Ramesh predeceased his father. The allegation is that the petitioner's mother did not carefully look after the litigation as a result whereof the petitioner cannot be allowed to suffer on that account and as such the proceedings under Section 34 ought to have been accepted in favour of the petitioner.
(3.) THE respondent nos. 5 and 6 set up a will contending that they had succeeded to the property to the exclusion of the petitioner and his father. THE Board of Revenue while proceeding to decide the matter has come to the conclusion that the claim of the petitioner that he was a minor is not acceptable in view of the age reflected in the revenue documents and, therefore, it cannot be said that he continued to be a minor even when the cause of action arose. Nonetheless the petitioner's mother filed an appeal and also a revision against the orders passed in favour of the respondents and failed. Sri Shukla contends that the respondent Mahendra Pal is a local counsel and he has misused his position in order to obtain the orders in her favour. He further submits that the petitioner, long back in the 1997, had already instituted a suit under Section 229B of the U.P.Z.A. & L.R. Act seeking a relief of declaration in his favour about his share in the holding of late Sri Prem Singh. THE plaint has been produced before the Court. Sri Shukla further submits that the respondent being a lawyer has been successful in delaying the proceedings of the suit and as a result whereof the petitioner is suffering. He further submits that the proceedings under Section 34 are now being claimed as a basis for contending that the suit is not maintainable and that the respondent has moved an application to that effect. The filing of the suit, in the opinion of the Court, is the appropriate remedy available to the petitioner and a declaration can be granted to the petitioner in respect of his claim as made therein. The contention that the respondents are treating the proceedings of Section 34 to be binding is an absolutely misconceived apprehension in as much as the sub Section (5) of Section 34 does not comprehend any such law as suggested on behalf of the petitioner. The proceedings under Section 34 are only summary in nature and they do not operate as either res judicata or bind the courts having appropriate jurisdiction to give a declaration in favour of either of the parties. In sum and substance, Section 34 is no impediment in the passage of the petitioner to seek a declaration in a suit filed under Section 229B. If the petitioner is aggrieved by any such action which the respondent may take on the basis of the summary proceedings, it is open to the petitioner to move an application in the pending suit before the competent authority for an appropriate relief. Apart from this, any declaration made by the competent court would be binding on the Tehsildar and any order of mutation in favour of either of the parties would be subject to the outcome of the suit.;