Brijesh Kumar Sharma vs State of U.P. and Others

Amreshwar Pratap Sahi, J.—Heard learned Counsel for the Petitioner and Sri Faujdar Rai for the Respondent No. 5. The Respondent No. 6 is the mother of the Petitioner. In view of this, notice need not be issued to her at this stage.

The dispute arise out of proceedings u/s 34 of the U.P. Land Revenue Act, 1901. Smt. Devraji the last tenure holder died on 25.1.2002. She was survived by two daughters, Respondent No. 5 and 6 respectively. The Petitioner being the son of Respondent No. 6 setup a registered will said to have been executed on 12.11.2001, contending that late Devraji had bequeathed the disputed land mentioned in the will to the Petitioner.

The dispute arose on account of the fact that the Respondent No. 5 contested the will and also filed a civil suit for cancelling the will executed in favour of the Petitioner.

The Petitioner sought mutation on the strength of the will whereas the contesting Respondent sought mutation in favour of both sisters to the extent that they were entitled in accordance with the succession as provided for under the Uttar Pradesh Zamindari Abolition and Land Ravenue Act, 1950.

While these proceedings were pending, it appears that the suit had been instituted by the contesting Respondent for cancellation of the will but the fact relating to the institution of the said suit was not there before Tehsildar. However, when the matter came to be disposed of finally by the order dated 16.5.2008, then during the course of the arguments the contesting Respondent brought forth the judgment and decree dated 15th July, 2005 of the Civil Court whereby the will in favour of the Petitioner had been cancelled.

This decree according to the Petitioner was ex-parte and the Petitioner came to know only of the same when the order in the mutation case came to be passed. Thereafter the Petitioner moved a restoration application and the ex-parte decree came to be set aside on 30th May, 2009, and the suit is still pending. The consequence is that the claim of the Petitioner on the basis of the will is being contested by the Respondent in the suit which has now been restored.

The Petitioner aggrieved by the order dated 16th May, 2008 which had been passed on the basis of the ex-parte decree in favour of the contesting Respondent, filed an appeal and the same has been dismissed on 28.4.2011 by the Sub Divisional Magistrate on the ground that when the order dated 16th May, 2008 had been passed, the exporter decree was in existence. The learned Member, Board of Revenue on revision has also maintained the same. Hence, this petition.

From the undisputed pedigree as contained in paragraph 4, it is evident that the contest is between the son of the elder daughter and the younger daughter of late Smt. Devraji. It is also undisputed that the names of both the daughters came to be mutated in view of the orders passed by the Tehsildar. In such a situation, it is obvious that the title over the land would be subject to the outcome of the suit which has been filed by the Respondent No. 5. In between the names of the two daughters having been mutated, it is the said position which deserves to be maintained without any disadvantage to either of the parties.

Accordingly, the writ petition is disposed of with a direction to the Tehisldar to maintain the revenue records in the name of both the daughters till any order is passed by a court of competent jurisdiction.

The writ petition is disposed of.