ALOK KUMAR Vs. BOARD OF REVENUE

JUDGEMENT

(1.) Heard Sri P.C. Singh for the petitioners. The writ petition has been filed against the order of Board of Revenue dated 31.3.2014 allowing the revision of the contesting respondents and setting aside the order of Additional Commissioner dated 9.4.2013 and reinstating the order of Tehsildar dated 24.8.2012.

(2.) The dispute between the parties is in respect of inheritance of the property of Ram Mohan. The petitioners are grand sons of Ram Mohan while Shiv Mohan, respondent-3 is son of Ram Mohan. It is alleged that Ram Mohan executed an unregistered Will dated 18.1.2003 and thereafter he died on 30.1.2003 and on the basis of aforesaid Will they have become heirs of Ram Mohan and their names were liable to be mutated. The petitioners filed an application registered as Case No. 179/53/012 under Section 39 of U.P. Land Revenue Act for mutation of their names on the basis of the Will dated 18.1.2003. The Naib Tehsildar by order dated 21.2.2012 allowed the application of the petitioners and directed for recording their names over the land in dispute. Shiv Mohan thereafter filed an application on 15.6.2012 for recall of the order dated 21.2.2012. In the application it has been stated that after death of Ram Mohan his name was recorded over the land in dispute on the basis of PA-11 and ignoring the order of mutation and without giving any notice and without issuing proclamation according to the procedure prescribed under Revenue Record Manual the impugned order has been passed exparte and the application was allowed by Tehsildar by order dated 24.8.2012 finding that the order dated 21.2.2012 was an exparte order. The petitioners filed a revision against the aforesaid order. The revision was heard by Additional Commissioner who by order dated 9.4.2013 held that in the order dated 24.8.2012 it has been stated that the earlier order dated 21.2.2012 was an exparte order but it has not been found that how this order was ex parte. Accordingly, the revision was allowed and order dated 24.8.2012 was set aside and the earlier order dated 21.2.2012 was reinstated. The order was challenged by the contesting respondents in the Revision (registered as Revision No. 1579 (LR) of 2012-13) before the Board of Revenue which has been allowed by the impugned order dated 31.3.2014. Hence this writ petition has been filed.

(3.) The counsel for the petitioners submits that the order of Naib Tehsildar was passed on 21.2.2012 after following the procedure and issuing the notices to the contesting respondents. The respondent-3 is the father of the petitioners and he is residing in the same house as such it is not possible that he could not have any notice of the proceeding before the Naib Tehsildar. In any case the Civil Suit has been filed for cancellation of the sale-deeds dated 28.7.2006 and 29.7.2006 executed by respondent-3 in which also notices have been served upon respondent-3 and the suit was decreed by judgment dated 18.5.2010 as such respondent-3 had challenged the proceeding before the Naib Tehsildar. In any case the Naib Tehsildar has found that proclamation has been issued in accordance with law as such the order passed by Naib Tehsildar was not an exparte order. He further submits that the order was passed on 21.2.2012 while the recall application was filed on 15.6.2012. Although the limitation for filing the recall application is 15 days under Section 201 of the Act. In such circumstances, the respondents was required to file an application for condonation of delay and without condoning the delay the Tehsildar has no jurisdiction to allow the recall application. The order of Tehsildar dated 24.8.2012 was exparte also inasmuch as notices of the application were not issued to the petitioners, it is only after long time of the application the notices had been directed to be issued. In such circumstances, the Additional Commissioner has rightly allowed the revision of the petitioners however the Board of Revenue has illegally set aside the order of Additional Commissioner.