MUKESH KUMAR Vs. SHAKUNTALA

JUDGEMENT

(1.) The defendants of suit No. 343 of 2001 : Smt. Shakuntala and Anr. v. Sushil Kumar and Ors. filed the present writ petition against the impugned orders dated 25th of January, 2007 passed by the Additional District and Sessions Judge, Court No. 11, Ghaziabad in Civil Revision No. 89 of 2006 which was preferred against the order dated 10th of March, 2006 passed by the trial court in the aforestated original suit holding that the suit as framed is maintainable before Civil Court. The only point mooted, thus, in the present writ petition is as to whether the suit No. 343 of 2001 is cognizable by the Civil Court or is barred by Section 331 of the U.P.Z.A. & L.R. Act. The two courts below concurrently negatived the plea of the defendants-petitioners and have held that the suit is cognizable by Civil Court.

(2.) The parties belong to one family and are descendants of Ameer Singh who had three sons, namely, Omkar Singh whose widow Smt. Shakuntala is plaintiff No. 1, Dayanand the plaintiff No. 2 and Anand the defendant No. 6. Ameer Singh was the recorded tenure holder of the land in Khata No. 2, Khasra No. 284, situate in village Alipur, Pergana Loni, Tehsil and District Ghaziabad, he was Bhumidhar with transferable right and expired on 17th of January, 2001. Omkar Singh, the husband of the plaintiff No. 1, died during the lifetime of Ameer Singh leaving behind him Smt. Shakuntala, plaintiff No. 1 and the daughters. Allegedly, Ameer Singh executed a Will dated 13th of March, 2000 in favour of defendants No. 1 to 5 who are the sons of Anand, defendant No. 6 and defendant No. 9 Naresh. The suit has bee filed with the allegation that the said Will was not executed with free consent. Ameer Singh was a sick person and the said Will was got executed by him by playing fraud. He was taken out from the house on the pretext of medical check up but the defendants by playing fraud got executed the said Will. Ameer Singh by subsequent Will dated 12.5.2000 cancelled the earlier Will dated 13th of March, 2000 and as such the Will dated 13th of March, 2000 stands cancelled. But the defendants are insisting upon the said Will and as such the suit for cancellation of the Will dated 13th of March, 2000 was filed. The defendant No. 1, one of the legatees, in the meantime executed a sale deed in respect of Khata No. 215, Khasra No. 284, 1/6th of the total area 3.96 hectares to the defendants No. 10 to 12. Cancellation of the said sale deed dated 21st of May, 2004 was also sought for. The relief for possession was claimed on the ground that if ultimately it is found that the plaintiffs are not in occupation of the land in question they may be put into possession through court. The said suit is being contested by the defendants by denying the plaint allegations. The defendants No. 1 to 5 pleaded that Ameer Singh executed the registered Will deed dated 13th of March, 2000 voluntarily, after understanding its contents. It was further pleaded that the land has been mutated in the name of petitioners by the order dated 5th of March, 2001. The name of the respondent No. 10 has also been mutated. The said mutation order has attained finality. The plaintiff-respondents failed to get their names mutated over the land in dispute. Reference was made to para 8 of the counter affidavit to the writ petition in this regard. In reply to the said para, in the rejoinder affidavit, the factum of mutation has not been denied. The trial court has found that the suit is not barred by Section 331 of the U.P.Z.A. & L.R. Act. The said finding of the trial court has been confirmed by the revisional court by the impugned order.

(3.) Shri N.C. Rajvanshi, the learned senior counsel for the petitioners submits that in the revenue record the names of the defendants have been mutated. The said revenue entry can be corrected only when the plaintiffs get their right, title and interest in the disputed land declared by a competent court. Such a declaration in respect of agricultural land can be granted only by the Revenue Courts under Section 229 B of the U.P.Z.A.& L.R. Act. Reliance in this regard has been placed upon a judgment of the Apex Court in Kamla Prasad v. Krishna Kant Pathak,2007 AllCJ 1275.