SHAILESHWAR PRASAD Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Mr. Virendra Singh, learned counsel assisted by Mr. Abhishek Tiwari, learned counsel for the petitioner and Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents.

(2.) With the consent of the learned counsel for the parties, the writ petition is being heard and disposed of finally without inviting counter-affidavit.

(3.) Brief facts of the case are that plot No. 279 area 3.11 acre was recorded in the khatauni of 1356 fasli and 1359 fasli in the name of Gokul Chand, Joti Bhushan, Bandhu Nandu s/o Jhuri, Chunni Lal s/o Bhondu, Birju s/o Rengai and they were shown in possession also. After abolition of zamindari, Bandhu, Nandu, Chunni, Birju became sirdar and later on bhumidhar of the plot in dispute. Accordingly, Shiv Lal s/o Bandhu, Harishchand s/o Nandu, Uma Shankar, Ram Narain minor s/o Nandu and Smt Parmeshwari Devi w/o Chunni, Birju s/o of Raengai, Ram Nath s/o Munni were recorded as bhumidhar of Plot No. 279 area 3.11 acre. The aforesaid tenure holder have executed a registered sale deed in favour of Jaggan s/o Ram Singh petitioners' father on 26/10/1966. Accordingly, petitioners' father became bhumidhar of the said plot and name of Jaggan was accordingly recorded in the revenue record in 1374 fasli. After the death of Jaggan name of the petitioners were recorded being legal heirs of the deceased over plot No. 279 are 3.11 acres. Petitioners' father filed a original Suit No. 378 of 1979 against the Rajendra and others which was decreed by the trial court vide judgment and decree dtd. 14/10/1997 and civil appeal filed against the judgment and decree of the trial court, was dismissed vide judgment and decree dtd. 23/2/2016. Second appeal filed by Rajendra against the judgment and decree of the courts below was also dismissed by this Court vide judgment dtd. 9/5/2016. Plot No. 267 area 0.142 hectare was recorded as class 6 (1) category land regarding which there is no dispute in the instant petition. One Tej Bahadur Singh, S/o Kallu filed P.I.L. No. 27416 of 2015 in which this Court vide order dtd. 13/5/2015 has directed the District Magistrate to decide the representation in accordance with law. Tej Bahadur Singh filed a contempt petition No. 1439 of 2016 which was disposed of vide order dtd. 31/3/2016. A proceeding was initiated for expunging the entry of plot No. 279 in the year 2015 accordingly Naib Tehsildar submitted a report which was forwarded before the Sub-Division Officer, and Sub-Divisional Officer vide order dtd. 27/4/2015 passed the order under Sec. 33/39 of U.P. Land Revenue Act restraining the parties to execute the sale deed. Against the order dtd. 27/4/2015 a revision was filed by petitioners and revisional court vide order dtd. 9/6/2015 set aside the order dtd. 27/4/2015 and directed the Sub-Divisional Officer to decide the proceeding in respect of maintainability. Sub-Divisional Officer vide order dtd. 18/11/2015 has held that the petitioners are recorded tenure holder of plot No.279 and entry continued with effect from 1291 fasli. It is also held that plot No. 279 was never recorded as pond. Against the order dtd. 18/11/2015 State has filed revision before the Commissioner which was allowed by the Commissioner, Varanasi Division, Varanasi vide order dtd. 23/1/2021 in view of ratio of law laid down by Hon'ble Apex Court in the case of Hinch Lal Tiwari v. Kamala Devi and others, 2001 (92) RD 689 (SC) and plot in dispute was ordered to be recorded as pond. Petitioners challenged the order dtd. 23/1/2021 before the Board of Revenue under Sec. 333 of U.P.Z.A. and L.R. Act which was registered as revision No. 445 of 2021 computerized Case No. AL2021147000445 and the same was allowed in part vide order dtd. 25/5/2023 setting aside the order of Commissioner dtd. 23/1/2021 and remanded the matter before the Commissioner to decide the dispute afresh. Hence this writ petition for implementation of the order passed by the Board of Revenue dtd. 25/5/2023 as well as for quashing the order dtd. 8/9/2023 passed by Deputy Collector Revenue, Varanasi during pendency of the writ petition.