NOOR AHMAD Vs. BOARD OF REVENUE

JUDGEMENT

(1.) Heard Shri Ramesh Kumar Shukla, counsel for the petitioner and Shri Sanjeev Kumar Pandey, Advocate, representing respondent Nos. 3 to 5.

(2.) The facts of the case are that one Mehtab Ahmad @ Afzal Ahmad was admittedly the tenure holder of Plot No. 3 (area 1.306 hectares), Plot No. 15 (area 0.517 hectares) and Plot No. 111 (area 0.549 hectares). Mehtab Ahmad was murdered and died on 9/8/1984. Mehtab Ahmad was survived by his father Hazi Ameer Ahmad, his mother and his brothers. The petitioner, respondent Nos. 3 to 5 and one Zameer Ahmad @ Abrar Ahmad are brothers of the deceased Mehtab Ahmad. After the death of Mehtab Ahmad, the petitioner got his name mutated in the revenue records relating to the disputed plots on the basis of a Will allegedly executed by Mehtab Ahmad. Hazi Ameer Ahmad, i.e., the father of Mehtab Ahmad died on 7/2/2003. In 2007, the respondent Nos. 3 to 5 alongwith Zameer Ahmad and mother of Mehtab Ahmad, i.e., the widow of Hazi Ameer Ahmad, instituted Case No. 10/2007 under Sec. 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act,1950') for declaration of their rights as co-tenure holders of the disputed plots pleading that, after the death of Mehtab Ahmad, the plots devolved on his father Hazi Ameer Ahmad and after the death of Hazi Ameer Ahmad the plaintiffs alongwith the petitioner became co-tenure holder of the disputed plots. While the aforesaid case was still pending, the respondent Nos. 3 to 5 filed an application on 31/1/2011 before the Tehsildar, Nagina for recall of the order dtd. 28/10/1985. The Tehsildar vide his order dtd. 30/12/2011 recalled the order dtd. 28/10/1985 and restored the mutation case registered at the instance of the petitioner. The petitioner alleging that the order dtd. 30/12/2011 was an ex-parte order passed without giving any opportunity of hearing to him, filed a recall application for recall of the order dtd. 30/12/2011. The Tehsildar through his order dtd. 23/3/2012 recalled his order dtd. 30/12/2011on the ground that the recall application filed by respondent Nos. 3 to 5 was not maintainable as Case No. 10/2007 registered under Sec. 229-B of the Act, 1950 was still pending. Against the order dtd. 23/3/2012 passed by the Tehsildar, the respondent Nos. 3 to 5 filed appeal before the Sub Divisional Magistrate, Nagina (hereinafter referred to as, 'S.D.M.'), who vide his order dtd. 30/6/2012 dismissed the said appeal. Consequently, the respondent Nos. 3 to 5 filed Revision No. 98/11-12 before the Commissioner, Moradabad Division, Moradabad (hereinafter referred to as, 'Commissioner') and the Commissioner vide his order dtd. 23/7/2012 allowed the revision and set aside the orders dtd. 30/6/2012, 23/3/2012 and 28/10/1985 passed by the subordinate revenue authorities and remanded back the matter to the Tehsildar to pass fresh orders in the mutation case. The order dtd. 23/7/2012 passed by the Commissioner was challenged by the petitioner before the Board of Revenue, U.P. at Lucknow (hereinafter referred to as, 'Board of Revenue1) through Revision No. 2435/LR/2011-12. The said revision has been dismissed by the Board of Revenue vide its order dtd. 22/8/2012. The orders dtd. 23/7/2012 and 22/8/2012 have been challenged in the present writ petition.

(3.) It is the admitted case of the parties that Hazi Ameer Ahmad was alive when Mehtab Ahmad died. Succession to the disputed plots is governed by Sec. 171 of the Act, 1950. Under Sec. 171 of the Act, 1950, after the death of Mehtab Ahmad in 1984, Hazi Ameer Ahmad, i.e., the father of Mehtab Ahmad had preferential rights over the brothers and mother of the deceased Mehtab Ahmad and the disputed plots would have devolved on Hazi Ameer Ahmad in case no Will had allegedly been executed by the deceased Mehtab Ahmad.