A.P.Singh - (1.) THE present writ petition has been filed by Hari Sharan Shanker against the order of Board of Revenue dated 24.11.1983 in revision No. 14/LR/81-82, District Nainital filed by respondent Nos. 2 to 6 challenging the order of the Additional Commissioner dated 23.11.1981.
(2.) PETITIONER who was opposite party in the revision filed by respondent Nos. 2 to 6 before the Board of Revenue contested the revision on the ground that the application filed by respondent Nos. 2 to 6 for mutation of their names having been rejected twice before, therefore, third application for mutation of their names was not maintainable. Shri S. N. Srivastava, learned counsel for the respondent Nos. 2 to 6, however, raised preliminary objection with regard to the maintainability of the writ petition on the basis of the law laid down by this court in Lekhraj and another v. Board of Revenue and others, 1981 RD 18. The argument of learned counsel for respondents in its place is absolutely correct but the circumstances in which the Board of Revenue passed the impugned order, in my opinion, fully justifies interference by this court against the order of the Board. Circumstances will emerge from the facts which may briefly be stated thus : Laxmi Narain executed a registered gift-deed in favour of petitioner on 7.8.1970 transferring plot Nos. 148 and 149 ; Plot No. 148 is a big plot measuring 64 bighas ; out of this area of plot No. 148, an area of 44 bighas and 16 biswas is said to have been transferred by petitioner in favour of respondent Nos. 2 to 6 by a sale-deed dated 28.12.1970 ; on the basis of the gift-deed dated 7.8.1970 executed by Laxmi Narain in their favour, petitioner filed an application for mutation of his name under Section 34 of U. P. Land Revenue Act (hereinafter referred to as 'the Act'), petitioner's application was registered as Case No. 481/70-71 ; respondents filed objections against petitioner's application in which they prayed by filing cross-objection that since they have themselves purchased a part of the land through sale-deed dated 28.12.1970 from the petitioner, therefore, their name may be mutated over an area of 44 bighas and 16 biswas of plot No. 148 instead of the name of the petitioner in place of Laxmi Narain. Respondents further pleaded that they were in possession over the land in dispute which was transferred in their name by petitioner. The Sub-Divisional Officer vide his order dated 26.11.1971 ordered for mutation of the name of respondent No. 2 over an area of 44 acres of plot No. 148 and on the remaining land covered by the gift-deed dated 7.8.1970, he ordered for entry of the name of petitioner. Aggrieved by the Sub-Divisional Officer's order dated 26.11.1971, petitioner filed revision under Section 218 of the U. P. Land Revenue Act before Commissioner, Kumaun Mandal.
(3.) THE Commissioner found that since the name of petitioner himself had not been mutated over plot No. 148, therefore, there arose no question for the mutation of the name of respondents. He accordingly, by his order dated 10.1.1972 recommended to the Board of Revenue to set aside the order of the Sub-Divisional Officer. THE Board of Revenue agreeing with the recommendation of the Commissioner set aside Sub-Divisional Officer's order dated 26.11.1971 by its order dated 23.2.1976 and directed for recording petitioner's name over the entire land which was gifted to petitioner vide registered gift-deed dated 7.8.1970 executed by Laxmi Narain. THE Board, however, altogether rejected respondents application on prayer for mutation of their names on the basis of sale-deed , dated 28.12.1970 on the ground that since petitioner's application for mutation over the land covered by the sale-deed had been rejected, therefore, there arose no question of mutation of their names on the basis of that sale-deed. Though the Commissioner in his recommendation order dated 18.1.1972 had also desired that the Sub-Divisional Officer may be directed to take-up the matter separately at the Tehsil level for mutation of the name of respondents over an area of 44 bighas and 16 bis was of plot No. 148 which was covered by the sale-deed, the Board, however, made no comments in its order dated 23.2.1976 about this part of Commissioner's order dated 10.1.1972. Unperturbed by failure in his first attempt to get his name mutated on the basis of the sale-deed, respondents again filed a fresh application before Sub-Divisional Officer claiming mutation of their names over an area of 44 bighas and 16 biswas of plot No. 148 on the basis of sale-deed dated 26.12.1970. THE Sub-Divisional Officer by his order dated 17.7.1974 again rejected respondents' application, inter alia, on the ground that respondents were not in possession of the land in question. Respondents filed revision before the Commissioner under Section 218 of the Act for challenging Sub-Divisional Officer's dated 17.7.1974. THE Commissioner too by his order dated 31.7.1975 dismissed the revision affirming the finding recorded by the Sub- Divisional Officer that respondent was not in possession over the land covered by the sale-deed. Undaunted by failure, respondents filed third application seeking mutation of their names on the basis of the same sale-deed dated 28.12.1970. This application too was rejected by Naib Tahsildar vide order dated 28.2.1980. Appeal filed by respondents against order dated 28.2.1980 was also rejected. Revision filed against Sub-Divisional Officer's order by respondents too was dismissed by Commissioner by order dated 23.11.1981. However, their second revision filed under Section 219 of the Act was allowed by the Board of Revenue vide its order dated 24.11.1983. Aggrieved by which, petitioner has come to this court by means of this writ petition. The contention of the learned counsel for the petitioner is that the orders passed on respondents' second application by Sub-Divisional Officer on 17.7.1974 and by Commissioner on 31.7.1975 became final inasmuch as no revision under Section 219 of the Act was filed by respondents to challenge those orders nor they otherwise challenged those orders in any other proceedings, therefore, the third application filed by respondents for mutation of their names on the same cause of action was not maintainable, therefore, the order of the Board of Revenue under challenge in this writ petition deserves to be quashed as being wholly without Jurisdiction. It was further contended by petitioner's counsel that since the order passed by the Commissioner on 23.11.1981 rejecting respondents mutation application did not suffer from jurisdictional error which is contemplated by Section 219 of the Act, the Board of Revenue possessed no power to set aside Commissioner's order. According to the counsel, the Board has power under Section 219 of the Act only if it finds Jurisdictional error in the order of the Commissioner or of the lower courts and not otherwise. According to him, the orders did not suffer from such infirmity.;