VINOD KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Surendra Pal Singh for the petitioners and Sri Ashish Kumar Srivastava for the contesting respondents. This writ petition has been filed against the order of Board of Revenue U.P. dated 26.2.2014, allowing the Second Appeal and setting aside the judgment and decree of Appellate Court dated 29.11.2003 and restoring the decree of Trial Court dated 24.8.1998 in the proceeding under section 229 -B of U.P. Act No. 1 of 1951.

(2.) THE dispute between the parties is in respect of plot No. 3274 (area 0.80 acre) of village Karimganj, pargana and district Mainpuri. Smt. Rajan Shree (respondents) filed a suit (registered as Suit No. 107/1992 -93) under section 229 -B of U.P. Act No. 1 of 1951 for declaring her as bhumidhar with transferable of land in dispute. It has been stated by Smt. Rajan Shree that plots 2985, 3015, 3157, 3274 and 3467 were allotted to her on 13.7.1979 on the basis of resolution of Land Management Committee dated 2.6.1979. Her name was mutated in khatauni 1384 -F to 1389 -F. Lekhpal without order of competent authority deleted the name of respondents from plot No. 3274, on 16.8.1986 and recorded it in the name of Hazari Lal without any basis. The suit was contested by the petitioners on the ground that the land in dispute was allotted to Hazari Lal by Land Management Committee on 30.11.1977. As the land in dispute was already allotted to Hazari Lal in the year 1977, Land Management Committee has no authority to allot it to respondent -6 in 1979. As the patta in favour of Hazari Lal was prior in time as such Supervisor Kanoongo by order dated 16.8.1986 directed to mutate the name of Hazari Lal and delete the name of respondent -6. The name of Hazari Lal was mutated over the land in dispute on basis of the patta. In the meantime, Hazari Lal died and on the basis of the report under PA -11, names of the petitioners were mutated by order dated 16.8.1986. Since the land in dispute had already been allotted to the petitioners, as such, it was not vacant to be allotted to the respondent and the subsequent allotment in favour of respondent -6 was illegal. The patta of respondent -6 was not given effect to in the revenue records for a long time. Respondent -6 was not a landless lady as such allotment made to her was illegal.

(3.) THE petitioner filed an appeal from the aforesaid order which was heard by Additional Commissioner, who by the order dated 29.11.2003, held that Lekhpal in his statement has stated that mutation of the names the allottees, who were granted patta on 13.7.1979, were on page Nos. 306 to 308, while the order of mutation of the name of Smt. Rajan Shree was at page No. 309. It was also admitted that the supplementary khatauni has not been checked by any of the higher authorities, as such, the mutation of the name of Smt. Rajan Shree appeared to be suspicious. On these findings, the appeal was allowed and the matter was remanded to the Trial Court for fresh decision, after giving opportunity of evidence to the parties. Smt. Rajan Shree filed a second appeal (registered as Second Appeal No. 9 of 2003 -04) from the aforesaid order, which has been allowed by Board of Revenue U.P. by order dated 26.2.2014. The Board of Revenue found that the patta set up by the petitioners was not found to be proved by the Trial Court and the finding of the Trial Court in this respect does not suffer from any illegality. In such circumstances, the Appellate Court has illegally allowed the appeal and remanded the matter for fresh trial before the Trial Court. On these findings, the Second Appeal was allowed and the order of the Appellate Court was set aside and the order of Trial Court has been reinstated. Hence, this writ petition has been filed.