Hear Sri Gaurav Mehrotra learned counsel for the Lucknow Development Authority and Sri Anurag Srivastava learned counsel for the respondent no.2.
This writ petition arises out of proceedings under Section 33/39 of the U.P.Land Revenue Act. These proceedings commenced on the application dated 21.9.99 filed by the petitioner regarding plot No. 171-Ja measuring 3 bigha, 17 biswa. On the application aforesaid, a report was called for by the S.D.M., Sadar, Lucknow. Copy of the report furnished on 7.1.2000 is on the record as Annexure 12 to the writ petition. A perusal of the said document reveals that it has been reported that the name of Tulsiram has been recorded over the land in question in pursuance of the order of the Consolidation Officer, Malihabad but it has been reported that no record of any such case is available in the office of the Consolidation Officer, Malihabad. It has further been reported that there exists a double entry one in favour of Tulsiram and the other in favour of Gaon Sabha wherein the said land is recorded as Navin Parti.
Relying on the report submitted by the Naib Tahsildar aforesaid an order was passed directing that the name of Tulsiram and his successor be expunged and the land be recorded as Navind Parti. Against the order passed by the S.D.M., revision was filed which was numbered as Revision No.48(LR)1999-2000 before the Board of Revenue, on the ground that the order of the S.D.M. was passed without opportunity of hearing.
By the impugned order dated 30.8.2012 the Board of Revenue has set aside the order of the S.D.M. and directed that the entry in favour of the respondent be maintained. It has further been observed that the petitioner may file a suit under section 229-B if so desired which may be decided by the competent authority in accordance with law.
Learned counsel for the petitioner has submitted that the Board of Revenue has erred in directing the filing of a suit under section 229-B. He admits that the order passed against the contesting respondent was an ex-parte order and they were entitled to be heard and on the strength of the admission he submits that under the circumstances the Board of Revenue should have remanded the matter to the S.D.M. for a fresh decision after hearing the parties on merits. In support of his contention he has referred to various documents which have been filed along with writ petition. One of the documents that has been filed, is the Khatauni of 1356 F.
Learned counsel for the petitioner has also produced a certified copy of this annexure for perusal of the court and has submitted that the entry in this Khatauni in favour of Tulsi Ram appears to be in a different hand writing. There also appears to be discrepancy in serial numbers of the entries in the said Khatauni and is therefore doubtful. He has also vehemently urged that no document evidencing entry of 1356 F was on record before the Board of Revenue. He has further submitted that the instant case appears to be one of a fraudulent entry in the revenue record and therefore, the Board of Revenue erred in not remanding the matter and wrongly directed the filing of a suit under section 229-B for declaration.
In rebuttal learned counsel for the respondent has submitted that there was material on record before the Board of Revenue evidencing the entry in favour of Tulsiram in 1356 F and therefore order of the Board of Revenue has been rightly passed and same is liable to be affirmed.
A perusal of the order impugned indicates that it was specifically urged before the said authority that there exists an entry in favour of Tulsiram in the Khatauni of 1356 F which is not under challenge in the proceedings. Therefore, relying upon the decision of the Apex Court the Board of Revenue has observed that till such time this entry is challenged, no relief can be granted to the petitioner and it is in this context that the petitioner has been directed to institute a regular suit.
Having considered the rival submissions and having perused the record I am of the opinion that the case as set up by the petitioner in the writ petition that the entry of 1356 F in favour of Tulsiram prima facie appears to be doubtful was not the basis of the case as instituted under Section 33/39 of the Land Revenue Act. Even the report on the basis of which the name of the recorded tenure holder has been ordered to be expunged, does not refer to the Khatauni 1356 F. Under the circumstances the Board of Revenue was justified in holding that till such time the petitioner challenges the entry made in Khatauni 1356 F they are not entitled to any substantive relief. Even otherwise the issues that have been raised before me can only be decided on the basis of evidence that may be led by the parties and the said issues should only be decided under regular title proceedings, as such complicated ones regarding title are not meant to be decided in summary proceedings under Section 33/39 Land Revenue Act.
Under the circumstances this Court is not inclined to interfere with the impugned order.
At this juncture learned counsel for the petitioner has submitted that since the case is one of fraudulent entry and the plot in dispute has already been transferred once by the recorded tenure holders, in case no interim protection is granted, there is likelihood of further transfer of the land in question which would lead to unnecessary complications.
Be that as it may, there is no disputing the legal position that the plaintiff in a suit under Section 229-B filed for declaration of his rights, is also entitled to claim injunction in his favour on his making an appropriate application in this regard in accordance with the provisions as contained under Section 229-D of the U.P. Z.A. and L.R. Act, 1950.
Under the circumstances, it is always open to the petitioner to make appropriate application for interim protection in accordance with law in the suit that may be filed by it. However, in the facts and circumstances it is thought fit to provide that in case the petitioner files a suit under Section 229-B within a period of 10 days from today along with an appropriate application for interim protection, the trial court shall consider and decide the application for interim protection within the next 10 days by a reasoned order.
With the aforesaid directions this writ petition is disposed of.
Order Date :- 11.2.2014 mna