KALAWATI AND ORS. Vs. GENDA SINGH AND ORS.

JUDGEMENT

(1.) Heard Sri Udit Chandra, Counsel for petitioners. The writ petition has been filed against the order of Additional Collector dated 12.9.2011 by which the recall application dated 7.1.2009 filed by respondents -2 and 3 has been allowed and order dated 15.12.2008 passed by Additional Collector was set aside and the matter has been remanded to Tehsildar for deciding the mutation applications of both the parties after giving opportunity of evidence and hearing to them, afresh and the order of the Board of Revenue dated 28.5.2015 dismissing the revision of the petitioners against the aforesaid order.

(2.) The petitioners on the basis of sale deed dated 20.11.2007 allegedly executed by Power of Attorney holder of Genda Singh (respondent No. 1) moved an application for mutation of their names over the land in dispute. The Tehsildar by order dated 27.12.2007 allowed the mutation application of the petitioners. Thereafter, Genda Singh filed an application for recall of the order dated 27.12.2007 which was allowed by Tehsildar by order dated 11.8.2008. The petitioners challenged the order dated 11.8.2008 in revision. The revision was heard by the Additional Collector who by order dated 15.12.2008 found that the order dated 11.3.2008 was passed without issuing any notice to the petitioners, as such it was an ex -parte order. On the basis of this finding he allowed the revision and set aside the order dated 11.3.2008 but without saying any word in respect of merit of the restoration application of Genda Singh, he at the same time upheld the order dated 27.12.2007 directing to mutate the names of the petitioners over the land in dispute. In the meantime, Genda Singh executed the sale deed dated 14.5.2008 in favour of respondents -2 and 3. They also filed an application for mutation of their names. Respondents -2 and 3 filed an application before Additional Collector for recalling the order dated 15.12.2008. It has been stated by them that before Additional Collector, they had filed an application dated 20.8.2008 for their impleadment as opposite parties in the revision but without disposing of the application dated 20.8.2008 and without giving any opportunity of hearing to them, revision was allowed by order dated 15.12.2008. The recall application was heard by Additional Collector who by impugned order dated 12.9.2011 held that the proclamation issued by the Tehsildar before passing the order dated 27.12.2007 was not served upon the parties. As such the order dated 27.12.2007 was an ex -parte order and is not liable to be maintained and the order of Tehsildar dated 11.3.2008 setting aside that order does not suffer from any illegality. He further found that two mutation applications were filed, one by the petitioners on the basis of sale deed dated 20.11.2007 and other was filed by respondents -2 and 3 on the basis of sale deed dated 14.5.2008. As such both cases were liable to be consolidated and decided by a common order. Revision was allowed by order dated 15.12.2008, ignoring impleadment application of respondents -2 and 3 dated 20.8.2008 and without its disposal and giving any opportunity of hearing to them. On these findings recall application dated 7.1.2009 filed by respondents -2 and 3 was allowed and the order dated 15.12.2008 was also set aside and the matter has been remanded to Tehsildar to consolidate both cases together and after giving opportunity of evidence to the parties decide afresh. The petitioners challenged the aforesaid order in the revision before the Board of Revenue which has been dismissed by order dated 28.5.2015. Hence this writ petition has been filed.

(3.) The Counsel for the petitioners submits that Genda Singh was the recorded tenure holder. He filed an application for recall of the order of Tehsildar dated 27.12.2007 which was initially allowed by the Tehsildar but the petitioners challenged the aforesaid order in revision and the revision was allowed by order dated 15.12.2008 and the order of Tehsildar dated 11.3.2008 was set aside and the order dated 27.12.2007 directing to mutate the name of the petitioners has been upheld. Thus the mutation order relating to the petitioners has attained finality. The subsequent sale deed executed by Genda Singh in favour of respondents -2 and 3 is merely a pendente lite transfer and on its basis the order of mutation in favour of the petitioners can not be recalled. Respondents -2 and 3 did not file any application for recalling the order dated 27.12.2007. Thus application for recall of order dated 15.12.2008 was not maintainable as it has been passed after hearing their predecessors. The Additional Collector has illegally allowed the recall application dated 7.1.2009 of respondents -2 and 3 and set aside the order dated 15.12.2008 and the revision filed by the petitioners has been illegally dismissed.