S.N.Srivastava, J. - (1.) Present petition has been instituted assailing the orders dated 29.6.1996, 30.6.1997 and 20.3.1998 passed by Sub Divisional Officer, Sadar Maharaj Ganj, and the Commissioner Gorakhpur Division Gorakhpur.
(2.) The dispute in the petition in hand revolves round plot No. 347 admeasuring .025 acres situated in village Mednipur Soha Sonari Patti Tappa Biraicha Pargana Haveli Sadar District Maharajganj. From the materials on record it would appear that originally the land in question belonged to one Jogi who sold his share in favour of petitioner vide sale deed dated 28.8.1995 and on the basis of which, the petitioner was delivered possession. Subsequently, Radhey Shyam who is arrayed as respondent No. 3 in the instant petition wrote some letter on 30.8.1994 for recording his name as Bhumidhar in the revenue record against property Plot No. 347 in view of the provisions of Section 164 of the U.P.Z.A. & L.R.Act. The grounds urged were that he got possession over the property from Jogi on the basis of mortgage and by this reckoning, acquired Bhumidhari rights under Section 164 of the U.P.Z.A. & L.R. Act. It would further appear that on the basis of application/letter made by Radhey Shyam, a case being case No. 1/18 of 1995 came to be registered by means of order dated 29.6.1996, the Sub Divisional officer passed the offending order directing to record the name of Radhey Shyam alongwith Radhey son of Ram Baran as co-tenure holder of the property in question. It would further appear that on coming to know of order, the petitioner preferred an application for recalling of the order on the ground that Jogi son of Ram Baran had already executed a sale deed in favour of petitioner on 28.8.1995 and therefore, she was the owner of the property in question. It was further stated in the application that she came to know of the order on 20.2.1997 and immediately filed the application for recall. The said application came to be rejected by means of order dated 30.6.1996 passed by Sub Divisional Officer. Subsequently, the petitioner preferred a revision against the said order which also came to be rejected by means of the impugned order.
(3.) Learned counsel for the petitioner premised his submission on the ground that impugned order passed by the Sub Divisional officer dated 29.6.1996 registering the case on the basis of a letter of respondent No. 3 is wholly without jurisdiction inasmuch as the authority is competent to entertain any suit, application or initiate any proceeding under the provisions of Section 164 of the U.P.Z.A. & L.R.Act. The learned counsel also drew attention to Schedule II appended to the U.P.Z.A. & L.R.Act that envisaged procedure, forum and authority who could entertain any such suit, proceeding or application. The learned counsel also canvassed that there is no provision under the Act to entertain any such application under Section 164 of the U.P.Z.A. & L.R.Act for declaring a person as Bhumidhar who claims rights under Section 164 of the Act. The learned counsel also referred to the sale deed dated 28th August 1995 executed by Jogi in favour of petitioner and on the basis of said sale deed, proceeds the submission, the petitioner has been in actual physical possession over the land in dispute. The learned counsel also stated across the bar that the petitioner being the real owner of the petitioner was not impleaded in the proceeding and as such impugned order is liable to be dismissed. The learned counsel also attacked the genuineness of mortgage deed and submitted that proceeding commenced on the letter of Radhey Shyam and on the basis of mortgage deed is vitiated in law. Per contra, Sri R.S. Misra appearing for respondent No. 3 propped up the impugned order and contended that the order impugned was rightly passed and it was passed in accordance with law inasmuch as Jogi had mortgaged the property to respondent No. 3 on a consideration of Rs. 17000/- which amounted to sale under Section 164 of the U.P.Z.A. & L.R.Act.;