These proceedings instituted under Article 226 of the Constitution of India challenge the validity of an order dated 28.03.2016 whereby the appeal filed by the respondent nos.4 and 5 against the orders dated 31.12.2004 and 27.01.2006 passed by the Naib Tehsildar concerned has been allowed by the Sub Divisional Officer and the orders of the Naib Tehsildar have been set aside.
The petitioner also challenges the order dated 16.11.2018 passed by the Board of Revenue, whereby the revision petition filed by her against the order dated 28.03.2016 passed by the Sub Divisional Officer, Sadar, Sultanpur has been dismissed.
For appropriately appreciating the issues and controversy involved in this petition, the following pedigree is relevant to be mentioned:
Four mutation reports were thereafter filed by the respondent nos.4 and 5 which were registered as case nos. 509, 510, 511 and 512. The said mutation reports were filed before the Naib Tehsildar, Kudwar, Sadar, Sultanpur. All the cases, since they related to estate of the deceased Sant Bahadur Singh, were consolidated and were decided by a common judgment and order by the Naib Tehsildar. The case set up by the respondent nos.4 and 5 was based on an unregistered will deed said to have been executed on 25.12.2003 by the deceased-Sant Bahadur Singh in favour of the respondent nos.4 and 5, namely, Ramnath Singh and Vinod Kumar Singh. The petitioner filed objections in the said mutation cases claiming that she is the wife of Rajendra Prasad Singh, who died on 04.05.2001 and as such she is also entitled to mutation in the revenue records over the land in question in respect of 1/3 share along with Ram Milan Singh and Dhirendra Pratap Singh. It is noticeable that father of the respondent nos.4 and 5, Ram Milan Singh first claimed the land in dispute in his sole name and got his name mutated in PA-11, however, subsequently the respondent nos.4 and 5, who are the sons of Ram Milan Singh, filed mutation report/application claiming mutation in their favour on the basis of alleged will deed dated 25.12.2003 said to have been allegedly executed by Sant Bahadur Singh.
The Naib Tehsildar considered the respective claims of the parties and decided the matter vide his order dated 31.12.2004 whereby the application moved by the respondent nos.4 and 5 seeking mutation over the land in question was rejected and the names of petitioner-Krishna Singh @ Krishna Devi, wife of Rajendra Prasad Singh, Ram Milan Singh and Dhirendra Pratap Singh were ordered to be mutated as successors and legal representatives of Sant Bahadur Singh. The Naib Tehsildar in his order dated 31.12.2004 has considered the evidence led by both the parties and has found that respondent nos.4 and 5 had failed to prove the alleged will deed dated 25.12.2003 said to have been executed in their favour by Sant Bahadur Singh. A categorical finding recorded by the Naib Tehsildar is that the will deed dated 25.12.2003, on the basis of which respondent nos.4 and 5 are claiming their rights, is suspicious. The Naib Tehsildar has also recorded a finding that though the parties to the proceedings before him agreed that Dhirendra Pratap Singh has been missing since long, however, there is no definite information or proof about his death. Accordingly, the Naib Tehsildar by the order dated 31.12.2004, on evaluation of evidence led by both the parties, came to definite conclusion that the will deed dated 25.12.2003 allegedly executed by Sant Bahadur Singh in favour of respondent nos.4 and 5 is suspicious and that the petitioner-Krishna Devi, wife of Rajendra Pratap Singh, who was the son of Sant Bahadur Singh, is entitled to 1/3 share in the land in question and accordingly ordered mutation in favour of all three successors of Sant Bahadur Singh, namely, the petitioner being the wife of first son of Sant Bahadur Singh, Ram Milan Singh, the second son and Dhirendra Pratap Singh, the third son of the deceased tenure holder-Sant Bahadur Singh. The respondent nos.4 and 5 thereafter moved a restoration application seeking setting aside of the order dated 31.12.2004 passed by the Naib Tehsildar and restoration of the said case. The said application was rejected by the Naib Tehsildar vide his order dated 27.01.2016. The Naib Tehsildar while rejecting the restoration application moved by the respondent nos.4 and 5 has recorded a finding that the order dated 31.12.2004 discusses the evidence led by both the parties and that in the proceedings 29.09.2004 was fixed for evidence of the respondent nos.4 and 5, however, from 29.09.2004 till 17.12.2004 the respondent nos.4 and 5 have been seeking adjournments and were not present on 15.12.2004, 21.12.2004 and 28.12.2004 and it is in the light of these facts that the order dated 31.12.2004 was passed.
The contention of the respondent nos.4 and 5 that they were being informed wrong dates was not found to be correct by the Naib Tehsildar while he passed the order dated 27.01.2006. He has also recorded a finding that adequate opportunity to the respondent nos.4 and 5 was given and that absence of the respondent nos.4 and 5 without any reasonable cause showed that they were not interested in getting the matter disposed of, which cannot be said to be in the interest of any litigant. The Naib Tehsildar has thus recorded a categorical finding that the order dated 31.12.2004, in any manner, cannot be said to be an ex-parte order for the reason that even after providing adequate opportunity of hearing if any party does not appear before the Court, in such circumstances if the order is passed on the basis of evidence available on record, then such an order cannot be said to be an ex- parte order.
Respondent nos.4 and 5 thereafter preferred an appeal before the Sub Divisional Officer against the orders dated 31.12.2004 and 27.01.2006 passed by the Naib Tehsildar. The said appeal has been allowed by the impugned order dated 28.03.2016 passed by the Sub Divisional Officer concerned, a revision petition filed by the petitioner against which has also been dismissed by the Board of Revenue vide impugned order dated 16.11.2018.
It has very vehemently been submitted and argued by the learned counsel appearing for the petitioner that the course adopted by the respondent nos.4, 5 and 6 before the courts below is nothing but an attempt to deprive the petitioner of her lawful right in the land in question. He has drawn attention of the Court to the fact that on the death of the original recorded tenure holder Sant Bahadur Singh the entire property which is the subject matter of this writ petition was got mutated in the sole name of respondent no.6, who is the father of the respondent nos.4 and 5 and thereafter a case has been built up by producing a forged will deed dated 25.12.2003 said to have been executed by the deceased Sant Bahadur Singh in favour of the respondent nos.4 and 5. He has further stated that the dispute has been raised by the respondent nos.4 and 5 only in respect of the land which is the subject matter of this writ petition and so far as the joint khatas, of which Sant Bahadur Singh was also one of the co-sharers, are concerned, the respondent nos.4 and 5 did not raise any issue till filing of this writ petition. In view of these facts and circumstances, it has further been stated by the learned counsel for the petitioner that the Naib Tehsildar while passing the order dated 27.01.2006 has given the reasons for not accepting the restoration application, however, the Sub Divisional Officer has cursorily dealt with the issue and has wrongly found that the order dated 31.12.2004 passed by the Naib Tehsildar was an ex-parte order.
Learned counsel representing the respondent nos.4 and 5 has opposed the prayer made in this petition and has submitted that in fact Krishna Devi is not the wife of Rajendra Prasad Singh and that Rajendra Prasad Singh was married to one Smt. Radha Rani, who deserted him and went with one Babadin Dhobi. He has further stated that by the impugned orders the mutation case has only been restored and as such the orders under challenge herein do not call for any interference by this Court in these proceedings.
Learned counsel representing the respondent nos.6 has also defended the orders impugned in this petition on the grounds as argued by the learned counsel representing the respondent nos.4 and 5.
I have considered the competing arguments made by the learned counsel representing the respective parties and have also perused the records available on this writ petition.
The pedigree, which has been mentioned in one of the preceding paragraph of this judgment, is not being denied by the parties, except that the respondent nos.4, 5 and 6 are denying that petitioner-Krishna Devi is the wife of the deceased-Rajendra Prasad Singh. On the death of the deceased recorded tenure holder-Sant Bahadur Singh on 02.01.2004, firstly Ram Milan Singh, who is one of the sons of Sant Bahadur Singh, got his name mutated in PA-11 under section 33-A of U.P. Land Revenue Act in his sole name and thereafter his sons, who are the respondent nos.4 and 5, approached the Naib Tehsildar by moving mutation application claiming the right over the land in question on the basis of the will deed allegedly executed on 25.12.2003 by the deceased-Sant Bahadur Singh in their favour.
Another issue, which cannot be lost sight of, is the fact that the right of the respondent nos.4 and 5 has been claimed initially only in respect of the land which is the subject matter of this writ petition, however, so far as the land, details of which has been given in para 13B of annexure RA-2 appended with the rejoinder affidavit filed by the petitioner dated 05.03.2019, which plots are in joint khata along with Sant Bahadur Singh, no objection was raised by the respondent nos.4 and 5 or even by the respondent no.6 till 16.02.2019. Date of death of Sant Bahadur Singh is 02.01.2004 which is admitted by the parties. This very circumstance as to why no objection in respect of the joint khatas was raised by the respondent nos.4 and 5 on the basis of will deed dated 25.12.2003 earlier and has now been raised after filing of this writ petition i.e. after a period of more than 15 years from the death of the deceased tenure holder-Sant Bahadur Singh, speaks volumes of the intent of the respondent nos.4, 5 and 6. They appear to have crafted a design to deprive the petitioner from 1/3 share of the land which was in the tenancy of the deceased tenure holder-Sant Bahadur Singh. Along with the rejoinder affidavit dated 05.03.2019 filed by the petitioner, certain documents have been annexed which pertain to some hospital at Mumbai, run by Municipal Corporation of Greater Bombay which reveal that the petitioner-Krishna Devi was treated there where she has been described to be the wife of Rajendra Prasad Singh. The High School certificate issued by the Board of High School and Intermediate Examination, U.P. pertaining to High School Examination, 2008 has also been annexed wherein Km. Rajpriya Singh has been described as , daughter of Krishna Singh (Mother) and Rajendra Singh (Father). Along with the supplementary affidavit dated 17.01.2019 filed by the petitioner khataunies of various joint khatas have also been annexed where the petitioner by the orders passed by the competent authority has been recorded over the land in respect of her share in the revenue records pertaining to the land of which Sant Bahadur Singh was co-share holder. The circumstance as observed above, raise serious doubt about the alleged will deed dated 25.12.2003 said to have been executed by Sant Bahadur Singh in favour of respondent nos.4 and 5 and make the same suspicious.
Now coming to the impugned orders,what is noticeable is that the Naib Tehsildar while deciding the mutation applications preferred by the respondent nos. 4 and 5 vide his order dated 31.12.2004 has discussed the evidence adduced by both the parties. The order dated 27.01.2006 whereby the restoration application moved by the respondent nos.4 and 5 was rejected clearly gives a finding that the order dated 31.12.2004 cannot be said to be an ex-parte order as they were given appropriate opportunity, however, they did not avail the said opportunity. The explanation submitted by the respondent nos.4 and 5 as to their absence in the proceedings before the Naib Tehsildar has not been found to be correct and thus has been rejected by the Naib Tehsildar in his order dated 27.01.2017.
Section 201 of U.P. Land Revenue Act provides for rehearing of a case on proof of good cause for non-appearance. The provision contained in section 201 is extracted herein below:
"201. No appeal from orders passed ex parte or by default.-No appeal shall lie from an order passed under Section 200 ex parte or by default.
Re-hearing on proof of good cause for non-appearance.-But in all such cases, if the party against whom judgment has been given appears either in person or by agent (if a plaintiff, within fifteen days from the date of such order, and if a defendant, within fifteen days after such order has been communicated to him, or after any process for enforcing the judgment has been executed or at any earlier period), and shows good cause for his non-appearance, and satisfies the officer making the order that there has been a failure of justice, such officer may, upon such terms as to costs or otherwise as he thinks proper, revive the case and alter or rescind the order according to the justice of the case.
Order not to be altered without summons to adverse party. -Provided that no such order shall be reversed or altered without previously summoning the party in whose favour judgment has been given to appear and be heard in support of it."
From a perusal of the aforequoted provision of section 201 of U.P. Land Revenue Act, what comes out is that against an order passed ex-parte or by default, no appeal shall lie. However, it further provides that in all such cases where order has been passed ex-parte or in default, if the party against whom judgment has been given appears before the court and shows good cause for his non-appearance and also satisfies the court making the order that there has been a failure of justice, the court concerned can revive the case and alter or rescind the order. Thus, it is not only that in a situation where an order has been passed ex-parte or in default and the party appears and shows good cause for his non-appearance that the case shall be restored. Along with showing good cause for non-appearance the party concerned has also to satisfy the court making the order that there has been failure of justice.
Section 200 of U.P. Land Revenue Act is also relevant to be discussed here which provides that whenever any party to the proceedings neglects to attend the proceedings on the date specified in the summons or on any date to which the case is postponed, the Court may dismiss the case for default or may hear and determine it ex-parte. Thus in absence of a party on service of notice, the revenue courts while exercising the jurisdiction have been empowered to dismiss the case or to determine the issues ex-parte. Section 200 of U.P. Land Revenue Act is quoted herein below:
"200. Hearing in absence of party.- Whenever any party to such proceeding neglects to attend on the day specified in the summons, or on any day to which the case may have been postponed, the Court may dismiss the case for default or may hear and determine it ex-parte."
When the order dated 27.01.2006, whereby the restoration application moved by the respondent nos.4 and 5 was rejected, is examined on the touchstone of the provisions contained in sections 200 and 201 of U.P. Land Revene Act, what is found is that the respondent nos.4 and 5 the proceedings of mutation were instituted on the mutation report/application filed by the respondent nos. 4 and 5 themselves and that the order dated 31.12.2004 was passed by the Naib Tehsildar after discussing the evidence led by both the parties. It is noticeable that the court concerned while passing the order dated 27.01.2006 has recorded a categorical finding that the order dated 31.12.2004 was passed on the basis of discussion of material and evidence available on record and that despite sufficient notice and information the respondent nos.4 and 5 had absented themselves on various dates. The Naib Tehsildar in his order dated 27.01.2006 has also recorded a finding that adequate opportunity was given to the respondent nos.4 and 5 and that their non-appearance on the dates fixed shows that the respondent nos.4 and 5 were not interested in getting the matter decided with expedition which cannot be in the interest of litigation/litigant. The Naib Tehsildar has also observed that if a party or his representative does not appear in the proceedings despite being provided adequate opportunity and in such a situation if an order is passed on the basis of evidence available on record, the same cannot be said to be an ex-part order. Thus, the order dated 27.01.2006 in my considered opinion is in conformity with the provisions contained in section 201 of U.P. Land Revenue Act which not only requires the party seeking restoration to show good cause for his non-appearance but also requires that the party may satisfy the court that there has been failure of justice. The appellate court while passing the impugned order dated 28.03.2006 appears to have completely lost sight of the provisions contained in section 201 of U.P. Land Revenue Act and without giving any finding as to in what manner the order dated 31.12.2004 has resulted in failure of justice has passed the order dated 28.03.2006. It is noticeable that the appellate court has not taken into account the fact that the Naib Tehsildar while passing the order dated 31.12.2004 has discussed the evidence available on record and that while passing the order dated 27.01.2006 the Tehsildar has not found the explanation for non-appearance of respondent nos.4 and 5 to substitute good cause for their non-appearance.
In my considered opinion there are two conditions which need to be established by a party seeking restoration of a case under section 201 of U.P. Land Revenue Act. The first condition is that good cause for non-appearance must be shown and secondly the party concerned must further satisfy the Court on merits and there has also been a failure of justice.
The revisional court i.e the Board of Revenue has also not taken into account the aforesaid legal aspects of the matter, specially the provisions contained in sections 200 and 201 of U.P. Land Revenue Act.
Resultantly, the writ petition deserves to be allowed. Accordingly, it is allowed. The order dated 16.11.2018 passed by the Board of Revenue and the order dated 28.03.2016 passed by the Sub Divisional Officer, Sadar, Sultanpur, which have been annexed as annexure nos.1 and 2 respectively to the writ petition, are hereby quashed.
However, there will be no order as to cost.
Order Date :- 26th of August, 2019 akhilesh/