SHAKEEL Vs. NASHIR KHAN

JUDGEMENT

(1.) MR . N.K. Trivedi, Advocate along with Mr. M.C. Dwivedi, Advocate, learned counsel for the petitioners and Mr. S.N. Singh, learned Counsel for the respondents are present.

(2.) THE facts of the case in brief are that the petitioners Shakeel Ahmad and others filed a mutation application under Section 34 of the U.P. Land Revenue Act, 1901 (hereinafter referred to as the Act, 1901) on 18.4.1994 on the basis of civil court judgment dated 27.10.1983 passed in Original Suit No. 456. The Tehsildar allowed the mutation application on 23.6.1994, which was challenged by the respondents Nashir Khan, and others through their restoration application, which was allowed on 12.8.1994. Being aggrieved by the order dated 12.8.1994 the petitioners Shakeel Ahmad and others filed a revision before the Additional District Magistrate, which was rejected on 9.2.1995. The petitioners Shakeel Ahmad Khan and others filed a second revision before the Board of Revenue, which was allowed on 1.3.1995 without affording any opportunity of hearing to the respondents - Nashir Ahmad Khan and others thereafter filed a restoration application No. 4/94 -95 before the Board of Revenue for recalling the order dated 1.3.1995. As per record, after hearing learned counsel for the parties and perusing the entire record the Board of Revenue vide its order dated 1.2.1996 recalled its exparte order dated 1.3.1995 and restored the case to its original number and fixed it for final hearing. After hearing both the parties on merits the Board of Revenue rejected the second revision on merits filed by the petitioners Shakeel Ahmad vide its order -dated 2.4.1997.

(3.) LEARNED counsel for the petitioners has submitted that the Tehsildar on 23.6.1994 while taking into consideration the decision dated 27.10.1983 passed in Civil Appeal No. 79 of 1979 by which the suit for injunction against the opposite parties was decreed upheld the ownership as well as possession of the petitioners and directed the name of the applicants to be mutated in the revenue record expunging the names of the opposite parties and the said decision of the Tehsildar was affirmed by the Board of Revenue while allowing the Revision No. 27 of 1995, and besides the order of the appellate Court dated 27.10.1983 there also exists an order of Additional Sessions Judge passed in Criminal Revision No. 306 of 1987 with regard to the proceedings under Section 145 of the Code of Criminal Procedure, which was in favour of the petitioners and was binding on the respondents Nishar Khan and others who had claimed possession and title over the property, in question. The second submission of the learned counsel for the petitioners is that while passing the order -dated 2.4.1997, the Board of Revenue ignored the mandatory provision of Section 220 (3) of the Act which provides that a single member vested with all or any of the powers of the Board shall not have power to alter or reverse a decree or order passed by the Board or by any member other than himself and thus, the said order dated 2.4.1997 was wholly without jurisdiction more so since rights and title of the parties had already stood decided by the competent courts and no interference by the Board of Revenue was called for.