- (1.) HEARD Sri K.C. Tripathi, learned counsel for petitioner and Sri V.K. Mishra, learned counsel for respondent No.3, Kaptan Singh, who has filed his vakalatnama, which is taken on record. Following pedigree is admitted to both the parties. JUDGEMENT_35_RD121_2013.htm
(2.) AFTER the death of Katar Singh, the names of his three sons were mutated in the revenue records over the agricultural land left behind by him. Petitioner who is nephew of Kaptan Singh filed an application that in oral family settlement Kaptan Singh had given his share in the agricultural land left behind by Katar Singh to the petitioner, hence his name shall be mutated in the revenue records. The case was registered as Case No.1140 of 2006 -07, Rajesh Vs. Kaptan Singh. Tehsildar, Swar, District Rampur allowed the application on 26.06.2007 and directed entry of the name of the petitioner over the agricultural land of Kaptan Singh, total area 9.49 hectare. It was mentioned in the said order that Kaptan Singh himself appeared as witness of the applicant Rajesh. It was mentioned in the application that the family was joint, however there was lot of dispute and the joint family was at the verge of break down hence on the intervention of the elder people of the family property had been divided and under the settlement it was decided that Kaptan Singh would give his property to the applicant and his brother Ravindra Singh; the settlement was oral and on the date of oral settlement Kaptan Singh had delivered possession to the applicant and his brother and settlement was also reduced in writing through memorandum. It is mentioned in para -6 of the writ petition that memorandum of family settlement was executed on 13.10.2004. In para -10 of the writ petition it is mentioned that market value of the land in dispute increased hence opposite parties No.3, 4 and 5 became dishonest. One restoration application was filed on 06.02.2009 by son and wife of Kaptan Singh and another was filed by Kaptan Singh himself on 29.05.2009 (Annexure -IV to the writ petition). The applications were dismissed on 24.06.2009 by Tehsildar Swar, Distirct Rampur holding that Kaptan Singh was aware of the proceedings, he had appeared as witness and application was barred by time also. True copy of the said order is Annexure -5 to the writ petition. Against the said order two appeals were filed being Appeals No.22 & 23, both of 2008 -09, which were dismissed on 27.05.2010 (para -15 of the writ petition). True copy of the said order is Annexure -6 to the writ petition. However, certified copy of Annexure -6 mentions the number of Appeal as 07 of 2009 -10 and date of decision is 27.03.2010. Thereafter, revision was filed by respondent No.3 in the form of Revision No.151 of 2009 -10. Additional Commissioner (Judicial), Moradabad Division, Moradabad allowed the revision, set aside the orders of the courts below dated 26.06.2007, 24.06.2009 and 27.03.2010 holding that what was alleged by the petitioner was a transfer which could not be affected except through registered document. The revision was allowed on 25.08.2010. Against the said order, petitioner filed Revision No.3669/LR/2009 -10. Board of Revenue dismissed the revision on 21.06.2013, hence this writ petition. 4. What was done by the Tehsildar and the S.D.O. is utterly shocking. The authority of the Supreme Court reported in Kale Vs. D.D.C., AIR 1976 SC 807 does not support the contention of the petitioner. That was a case in respect of genuine family transaction. 5. In the instant case, the transaction even if assumed to have taken place as alleged by the petitioner can by no stretch of imagination be termed as family settlement. In the alleged family settlement Kaptan Singh did not get anything. Extremely valuable land of more than 9 hectares was alleged to have been surrendered by Kaptan Singh in favour of his nephew, the petitioner even though Kaptan Singh also had got a son. 6. What the petitioner did was a fraud of the highest order in which the Tehsildar and the S.D.O. who passed the orders in favour of the petitioner willingly colluded with him obviously for extraneous consideration. Two more authorities have been cited by learned counsel for petitioner reported in Hari Narain Vs. IV A.D.J., 2000 (91) RD 138 (Allahabad High Court) and Bhagwan Krishna Gupta Vs. Prabha Gupta, 2009 (107) RD 66. However, none of the authorities helps the petitioner. Those were cases of genuine family settlement where both of the parties got something. 7. Learned counsel for petitioner has argued that opposite party No.3 in his restoration application (Annexure -4) did not deny that earlier he had appeared as witness of the petitioner. This argument is not tenable. In para -12 of the said application, opposite party No.3 categorically stated that he was never aware of the case until his son informed him that his name had been expunged from the revenue records. This clearly meant that he denied that he ever appeared in the said case earlier. 8. Accordingly, writ petition is dismissed. 9. In view of the orders passed by Additional Commissioner and Board of Revenue, the suit filed by the respondent No.3 under Section 229 -B has become infructuous. He may get the same dismissed as such. 10. It is a fit case where against the Tehsildar, who passed the orders dated 26.06.2007 and 24.06.2009 and the S.D.O. Who passed the order dated 27.03.2010, disciplinary proceedings should be initiated. 11. Office is directed to supply a copy of this order free of cost to Sri Vinay Bhushan, learned Additional C.S.C.;