SOMWATI Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Mr. Rajeev Kumar, learned counsel for the petitioner, Shri Abhisekh Shukla, learned Additional Chief Standing Counsel for the State-respondent and Shri Krishna Kant Singh, learned counsel for the respondent-Goan Shabha.

(2.) Brief facts of the case are that one Smt. Mittha Devi @ Mithula Devi wife of Salik Ram was the owner of plot No. 944/15 area 0.405 hectare and Parsadi son of Badale was owner of plot No. 944/13 area 0.405 hectare, who belongs to scheduled caste community. The aforementioned plots are situated at village Vasundhara, Pargana Marhara, Tehsil and District Etah. Petitioner is the daughter of Prasadi. Smt. Mittha Devi had executed a registered will deed on 21/1/2000 in respect to his share of the plot in dispute in favour of respondent No. 6-Jaydan Singh, whose name was also mutated in the revenue records on the basis of aformentioned will deed vide order dtd. 30/8/2010. A restoration application was filed by Suresh Chandra on 17/5/2016 along with delay condonation against the order dtd. 30/8/2010 in respect to the aforementioned will deed dtd. 21/1/2000 with the allegation that execution of the will deed by Mittha Devi @ Mithula Devi in favour of Jaydan Singh, who belong to Other Backward Caste Community, is in violation of the provisions contained under the U.P.Z.A. and L.R. Act/U.P. Revenue Code, 2006, as such, land in dispute is liable to be vested in the State. Tehsildar vide order dtd. 31/7/2017, allowed the restoration application dtd. 17/5/2016 as well as condoned the delay and set aside the order of mutation passed in favour of respondent No. 6 and referred the matter for vesting the plot in dispute in favour of the State. On the basis of the order dtd. 31/7/2017 the case was registered as Case No. 1548/2017 under Sec. 104/105 of U.P. Revenue Code before Collector. One civil suit for cancellation of the will deed dtd. 21/1/2000 was filed by the petitioner being Suit No. 60/2019, impleading the respondent No. 6 as sole defendant and the aforementioned suit was decreed by judgment and decree dtd. 29/1/2021 on the basis of compromise to the effect that will deed executed on 21/1/2000 is cancelled. Petitioner filed an impleadment application on 23/9/2019 in the aforementioned Case No. 1548/2017 under Sec. 104/105 of U.P. Revenue Code, 2006, stating that she has interest in the plot in dispute, but without opportunity of hearing, the order has been passed. The copy of the judgement and decree dtd. 29/1/2021 passed in Civil Suit No. 60/2019 was also filed in the case. The Additional Collector rejected the impledment application filed by the petitioner vide order dtd. 1/9/2021. Being aggrieved therefrom, petitioner filed revision which was dismissed vide order dtd. 24/8/2022. Upzila Adhikari vide final order dtd. 8/12/2022 ordered to expunge the name of respondent No. 6 and record the name of state government hence this petition for quashing the order dtd. 24/8/2022, passed by the Commissioner, Aligarh Division, Aligarh in Revision No. 761 of 2022 and order dtd. 1/9/2021 passed by the Addition District Magistrate, Etah in Suit No. 1548 of 2017 as well as order dtd. 8/12/2022, passed by Upzila Adhikari Etah.

(3.) Counsel for the petitioner submitted that in respect to will deed in question, the civil suit filed by the petitioner against respondent No. 6, has been decreed on the basis of compromise and the will deed in question has been cancelled vide judgment and decree dtd. 29/1/2021, hence, the order passed, vesting the plot in dispute in State Government should be set aside. It is further submitted that decree of the civil court cannot be nullified and the impugned order, vesting the land in the State Government is illegal. He further submitted that final order dtd. 8/12/2022 has been passed without affording opportunity of hearing to the petitioner. He further submitted that this Court in the case of Deep Narayan Prasad v. Board of Revenue and others, Writ-B No. 921 of 2020 decided on 13/1/2023 has held that decree of Civil Court even passed on the basis of compromise cannot be ignored.