- (1.) ASHOK Bhushan, J. Heard Sri V. K. S. Chaudhary, Senior Advocate, assisted by Sri K. N. Saxena, for the petitioners and Sri Sharad Malviya, appearing for respondent No. 2.
(2.) BY this writ petition, the petitioners have prayed for quashing the order dated 13th June, 2003 (Annexure-13 to the writ petition) passed by Board of Revenue allowing the revision filed by respondent No. 2 (Fazal Ahmad) under Section 219 of U. P. Land Revenue Act, 1901 and the order dated 8th July, 2003 (Annexure-14 to the writ petition) rejecting the review application filed by the petitioners for reviewing the order dated 13th June, 2003 of the Board of Revenue. The orders passed by Board of Revenue in revision arose from proceedings of mutation under Section 34 of U. P. Land Revenue Act, 1901. The application for mutation dated 16-9-1996 was filed by respondent No. 2 praying for expunction of the name of the petitioners from the land in dispute on the basis of the order passed by Civil Court in favour of respondent No. 2, which was affirmed up to the Supreme Court vide judgment dated 12-1-1987. The respondent No. 2 in the mutation application stated that the grove in dispute was purchased by respondent No. 2 on 11th April, 1968 in a Court auction sale, which was confirmed. The validity of the Court auction sale was challenged by the petitioners in the Civil Court on the basis of two sale-deeds of the year 1957 and 1959 which was decided in favour of respondent No. 2 up to the Supreme Court on 12-1-1987. The application further stated that on proceedings taken by respondent No. 2 in the Civil Court for giving Dakhal of the grove in question, orders were passed on 15-12-1995 to give possession and possession was handed over by the Amin of the Civil Court to respondent No. 2 on 16-12-1995. The application prayed that the names of Jagdish Narain and Jugal Kishore recorded in the revenue records on the aforesaid grove be expunged and the name of respondent No. 2 be recorded. The said mutation application has ultimately been allowed by the Board of Revenue by the impugned judgment against which present writ petition has been filed. It is well-settled that mutation proceedings Under Section 34 of U. P. Land Revenue Act, 1901 are summary proceedings which do not decide any title of the party and the writ petition challenging the orders passed in mutation proceedings generally are not entertained by this Court, however, in view of the facts and circumstances of the present case, as mentioned hereinaffer, and the chequered history of the case it is appropriate that submissions of Counsel for the parties be considered. Brief facts necessary to be noted for deciding this writ petition are; in pursuance of a decree passed in Suit No. 21 of 1946, Lal Hajari Lal v. Abdul Hai, the grove in dispute was auctioned on 11th April, 1968 in favour of respondent No. 2. On the basis of two sale-deeds dated 22-12-1957 and 21-3-1969, an objection was filed by the petitioners and their pre-decessors in interest against the auction sale taking the case that they have purchased the grove in question by the above mentioned sale-deeds from the heirs of Abdul Hai which cannot be auctioned in pursuance of the decree passed in Suit No. 21 of 1946. The case of the petitioners further was that the grove was not subject-matter of Suit No. 21 of 1946 and the same could not have been auctioned. The objection was rejected on 16-11-1970. A suit being Suit No. 114 of 1970 was filed by the petitioners praying for declaration that plaintiffs are the owners of the grove and the said grove is not capable of auction in execution Case No. 4 of 1968 in pursuance of decree in Suit No. 21 of 1946. An injunction was also sought against defendant (respondent No. 2) that he be restrained from dispossessing the plaintiff on the basis of the aforesaid decree. The suit was contested by respondent No. 2 and was ultimately dismissed by the Civil Judge, Jhansi vide its judgment and order dated 24-2-1973. The Civil Judge upheld the auction and held that the sale-deeds dated 22- 12-1957 and 21-3-1969 were hit by doctrine of lis pendens and did not give any right to the plaintiffs. The order of the Civil Judge was challenged in this Court by filing a first appeal by the petitioners. This Court vide its judgment and order dated 1st August, 1986 passed in First Appeal No. 52 of 1973, Jugal Kishore & Ors. v. Smt. Ayesha Khatoon, dismissed the appeal confirming the judgment of the Civil Judge. Against the order of this Court dated 1st August, 1986 an special leave petition was filed which too was dismissed on 1-12-1995. After the end of the above first series of litigation, respondent No. 2 moved an application for issue of the sale certificate on the basis of the auction sale held in Execution Case No. 4 of 1968 of the grove in question. Again objections were filed by the petitioners to the application of respondent No. 2, which was rejected by the Civil Judge on 14-5-1993. Against the said order a revision was filed by the petitioners which too was rejected on 20th May, 1993. A writ petition being Writ Petition No. 19170 of 1993 was filed by the petitioners thereafter which too was dismissed by this Court on 26th April, 1995. The sale certificate was issued in favour of respondent No. 2 on the basis of which an application was moved by respondent No. 2 for issuing warrant of delivery of possession with regard to the property purchased by him, i. e. , grove in question. The said application was again objected by the petitioners and the said objections were rejected by the Civil Judge on 14-12-1995. A revision was also dismissed on 31-1-1996. The said orders were challenged by means of Writ Petition No. 6123 of 1996 before this High Court which too was dismissed on 15-2-1996. It is further relevant to be noted that above both the orders of this Court dismissing the writ petitions of the petitioners were challenged in the Apex Court by filing special leave petitions, which too were rejected. In pursuance of the order of the Civil Court the possession was ultimately delivered to respondent No. 2 by the Court Amin on 16-12- 1995. After taking possession of the grove in question, an application was moved by respondent No. 2 before the Naib-Tahsildar for expunging the names of the petitioners from the revenue records and for recording his name. The said application was filed on 16-9-1996 after the end of the above mentioned prolong litigations, which ultimately decided against the petitioners and in favour of respondent No. 2. The natural consequence of the abovenoted decisions of the Civil Court in favour of respondent No. 2 was that on the basis of the said judgments of the Court, which were affirmed up to the Apex Court, the name of respondent No. 2 ought to have entered into the revenue records and names of the petitioners ought to have been expunged which were mutated on 26th July, 1960 on the basis of the sale-deeds dated 22-12-1957 and 21-3-1959. The rights of the petitioners on the basis of above two sale-deeds having been finally pronounced up to the Apex Court, striking of the names of the petitioners was only consequential and need no elaborate discussion or decision, but the facts of the present case reveals that even for the above incorporation of name in the revenue records respondent No. 2 was dragged in a prolong litigation by the petitioners on after one and the application filed in the year 1996 could ultimately be allowed by the Board of Revenue on 13th June, 2003 after about 7 years after several phase of litigations which shall also be hereinafter noticed. Against the orders passed by Board of Revenue for mutating the name of respondent No. 2 in the revenue records, the petitioners have come up in this writ petition raising several objections and contentions, which were already repelled by series of litigations between the parties in the Civil Court. Sri V. K. S. Chaudhary, Senior Advocate, appearing for the petitioners, in support of the writ petition, challenging the order of the Board of Revenue, contended that revision was filed before the Board of Revenue against an interlocutory order dated 4th June, 2003 of the Naib-Tahsildar, hence the Board of Revenue was not competent to decide the mutation application, which was pending consideration before the Naib-Tahsildar. He submits that revision itself was not maintainable having been filed against an interlocutory order. Reliance has been placed by Counsel for the petitioners on the judgment of this Court reported in 2002 A. C. J. SC 1417, Hari Bahadur Lakhtakia v. The District Judge, Allahabad & Ors. , judgment of Board of Revenue reported in 2001 JIR 706 (BR) (Hindi) : 2001 (92) R. D. 137, Mahendra Pratap Singh v. State of U. P. , and judgment of this Court in 1991 RD 30; Gunai v. Gaon Sabha & Ors. Sri Chaudhary further contended that the grove in question has been purchased by auction sale by respondent No. 2 and the sale, certificate issued in pursuance thereof does not mention the plot numbers and boundaries of the grove and on the basis of the said sale certificate the petitioners can neither be dispossessed nor their names can be expunged from the revenue records. He submits that no evidence can be given for explaining the sale certificate. He has placed reliance on the judgment of the Apex Court in 2001 (1) JCLR 307 (SC) : AIR 2000 SC 2673, S. Saktivel v. M. Venugopal Pillai & Ors. Sri Chaudhary lastly submitted that the petitioners had become Bhumidhar and Bhumidhari rights cannot be sold in execution of a decree. He placed reliance on judgments of the Apex Court reported in AIR 1961 SC 1790, Rana Sheo Ambar Singh v. The Allahabad Bank Limited, Allahabad.
(3.) SRI Sharad Malviya, learned Counsel for the respondent No. 2, refuting the submissions of petitioners, contended that all the submissions raised by the petitioners with regard to identity of the grove land and the validity of the auction sale in favour of respondent No. 2 has already been adjudicated and decided in favour of respondent No. 2 and the said question cannot be raised by the petitioners in mutation proceedings. He further submitted that in the suit filed by the petitioners being Suit No. 114 of 1970, the rights were claimed by the petitioners on the basis of their sale-deeds dated 22-12-1957 and 21-3-1959 attacking the auction sale in favour of respondent No. 2. The said suit having been dismissed after rejecting the contentions of the petitioners, it is not open for them to raise those objections in the mutation proceedings. I have considered the submissions and perused the record.;