RAJESH KUMAR SRIVASTAVA Vs. ANIL KUMAR SRIVASTAVA

JUDGEMENT

(1.) HEARD Sri N.A. Khan for the petitioners and Sri Anil Kumar Aditya for the contesting respondents. The writ petition has been filed against the order of Commissioner dated 10.3.2014 passed in the revision arising out of proceeding under section 34 of U.P. Land Revenue, Act, 1901 (hereinafter referred to as "the Act").

(2.) RAJESH Kumar, petitioner, and the respondents (second set) filed an application under section 34 of the Act for mutation of their names over the land recorded in the name of Mata Prasad. It has been stated in the application that Mata Prasad left behind his only son Kailash and after the death of Kailash the petitioner, his brothers and their mother inherited the property in dispute. It is alleged that when the contesting respondents put appearance in the application and filed objection, then the application was got dismissed as not pressed by order dated 28.4.2011. Thereafter, behind the back of the contesting respondents another application under section 34 of the Act was filed which was allowed ex parte by order dated 29.4.2011. On coming to know about the said order, the contesting respondents filed an application for recall of the order, which was dismissed by the order dated 17.8.2011. The contesting respondents challenged the aforesaid order in revision. The revision was heard by Additional Commissioner, who by order dated 12.4.2012 allowed the revision and set aside the orders dated 29.4.2011 and 17.8.2011 and remanded the matter to Tahsildar for deciding the mutation application afresh after giving opportunity to the parties to lead the evidence. The petitioner challenged the order dated 12.4.2012 in revision before the Board of Revenue, which was dismissed by order dated 26.9.2012. Thereafter the petitioner filed Writ B No. 5808 of 2012, which was also dismissed by this Court by order dated 6.11.2012. After dismissal of the writ petition the matter was taken up by Tahsildar and it is alleged that the evidence on behalf of the petitioner was completed on 14.3.2013. Thereafter 24.3.2013 was the date fixed for evidence of the contesting respondents. On 24.3.2013 the case was adjourned and a general date has been fixed on 11.4.2013. On 11.4.2013 the petitioner engaged another Counsel who took adjournment and the case was adjourned fixing 22.4.2013. On by 22.4.2013 the contesting respondents filed objection and also filed an application raising objection against maintainability of the second application under section 34 of the Act. The case was, therefore, adjourned and 15.5.2013 was fixed and thereafter 23.5.2013 was fixed in the case and on that date the case was adjourned and 5.6.2013 was fixed on which date the argument on maintainability of the second application filed by the petitioner was heard. Thereafter 24.6.2013 was fixed for order but on 24.6.2013 a general date was fixed on 18.7.2013. On 18.7.2013 the case was adjourned and 25.7.2013 was fixed. And thereafter the case was adjourned for 25.7.2013 and 8.8.2013 was fixed. On 8.8.2013 the case was adjourned and 14.8.2013 was fixed. On 14.8.2013, 23.8.2013 was fixed. On 9.9.2013 arguments were heard on the maintainability of the second application and thereafter 28.9.2013 was fixed on which date the case was finally decided on merit.

(3.) THE Counsel for the petitioner submits that on 27.9.2013 the arguments were not heard regarding maintainability of the application as on 5.6.2013 and 9.9.2013 arguments on the maintainability on the second application had already been heard. On 27.9.2013 the arguments on merit were heard. Therefore, the case was rightly decided on merit by Tahsildar by order dated 28.9.2013. He submits that the Tahsildar in the impugned order relying upon the papers filed before the Consolidation Court as well as Kutumb Register and affidavit of the respondents held that Mata Prasad had only one son. The finding recorded by Tahsildar in this respect is finding of fact. There is no material to contradict this finding. The contesting respondents in spite of giving the opportunity of evidence in the case by order dated 12.3.2013, could not adduce any evidence and to linger on the proceeding they have deliberately filed an application regarding maintainability of the case and got it adjourned instead of leading evidence. Therefore, in the circumstances, the case was rightly decided on merit and no interference was required by Commissioner in revision in it but the revision was illegally allowed.