Mohammad Anis vs Additional Commissioner,Allahabad Division,Allahabad and Others

R. R. Yadav, J.—Although the present writ petition is posted today for admission but with the consent of the learned Counsel for the parties, I propose to dispose it of finally at admission stage.

Heard the learned Counsel for the petitioner, Sri Surya Narayan as well as the learned Standing Counsel at length. Perused the order impugned order 30111999 passed by respondent No. 2, SubDivisional Officer, Kaushambi (Annexure7 to the writ petition) whereby the application moved by the petitioner under Section 33/39 of U.P. Land Revenue Act (hereinafter called as the Act of 1901) has been rejected and order dated 3052000, passed by respondent No. 1, Additional Commissioner, Allahabad Division, Allahabad affirming the aforesaid order, a copy whereof is filed and marked as Annexure9 to the writ petition.

Briefly stated the facts are that the deceasedplaintiff Smt. Shabbirul Nishan filed civil suit No. 268 of 1962 for cancellation of two saledeeds dated 751960 and 461960, for recovery of possession of subject matter of the aforesaid two saledeeds and for recovery of Rs. 800/ as damages against Hakimuddin. The aforesaid civil suit No. 268 of 1962 filed by the deceasedplaintiff, Smt. Shabbirul Nishan was dismissed by the trial Court on 681968.

Aggrieved against the judgment and decree dated 681968 passed by trial Court, Shabbirul Nishan filed first civil appeal No. 88 of 1968. It appears from perusal of the records that during the pendency of the aforesaid first appeal, plaintiff, Shabbirul Nishan expired and in her place, the name of the petitioner, Mohammad Anis was substituted as her sole legal representative in the array of appellant. After hearing Mohammad Anis petitioner and Hakimuddin, the learned first appellate Court set aside the judgment and decree dated 681968 passed by the trial Court and allowed the appeal on 2341979 whereby the aforesaid two saledeeds dated 751960 and 461960 were cancelled, holding these saledeeds to be void ab initio. It was further held by the first appellate Court that the deceasedplaintiff, Shabbirul Nishan was forcibly dispossessed by Hakimuddin on the basis of above mentioned two saledeeds and she was found to be entitled to get back possession of the subject matter of two saledeeds from Hakimuddin. However, the first appellate Court refused to pass decree for damages amounting to Rs. 800/ against Hakimuddin.

Aggrieved against the judgment and decree passed by the first appellate Court on 2341979, Hakimuddin filed a second appeal No. 1688 of 1979 before the High Court which too was dismissed on 1691997.

Undaunted from dismissal of second appeal, Hakimuddin filed S.L.P. before the Supreme Court which too was dismissed on 521998.

It is revealed from perusal of the record that on the basis of saledeeds dated 751960 and 461960, Hakimuddin initiated proceedings for mutation under Section 34 of the Act of 1901 and on the basis of the aforesaid two saledeeds, the name of Hakimuddin was recorded in the record of rights in place of deceasedplaintiff, Smt. Shabbirul Nishan. It is further borne out from perusal of the record that after dismissal of SLP by the Supreme Court on 521998, the petitioner. Mohammad Anis filed execution application No. 10 of 1998 before the Executing Court for execution of the decree. The executing Court in pursuant of the decree, which attained finality between petitioner Mohammad Anis and Hakimuddin from the judgment of Hon''ble Supreme Court on 521998, possession was delivered to the petitioner, Mohammad Anis and a communication was ordered to be sent to SubRegistrar, Registration, Chail to make an endorsement in the register to strike off the aforesaid two saledeeds from the register kept in the office of SubRegistrar Registration. In pursuant of the order passed by the executing Court, both the saledeeds mentioned hereinabove have been struck off from the register kept for this purpose in the office of SubRegistrar Registration Chail.

After decision of, execution application No. 10 of 1998 by executing Court, the record of rights requires correction, hence the petitioner, Mohammad Anis moved an application under Section 33/39 of the Act of 1901 upon which a report was called. It is apparent from perusal of Annexure6 to the writ petition that on 1101999, Naib Tahsildar in his detail report reported that in view of decision rendered upto Supreme Court, the record of rights is to be corrected and in place of Hakimuddin, who got his name recorded in the record of rights on the basis of saledeeds dated 751960 and 461960 is to be removed and in his place the name of the petitioner. Mohammad Anis is to be recorded. It is further reported by Naib Tahsildar that in execution No. 10 of 1998 possession over the disputed land has been restored to the petitioner Mohammad Anis and Hakimuddin is not in possession over the land in question, therefore, there is no impediment in correcting the record of rights under Section 33/39 of Actofl901.

It is amazing to note that when the aforesaid detail report dated 1101999 was placed before Tahsildar for reference to Sub Divisional Officer within the meaning of subsection (2) of Section 39 of the Act of 1901, for the reasons best known to him, he took myopic view and reported to SubDivisional Officer that the record of rights cannot be corrected within the meaning of Section 33/39 of the Act of 1901 as dispute pertains about obedience of Court''s order. It is shocking to note that the Sub Divisional Officer with closed mind rejected the application of the petitioner Mohammad Anis moved under Section 33/39 of the Act of 1901 ignoring its mandatory provisions on 30111999, a copy whereof is filed and marked as Annexure7 to the writ petition.

It is further amazing to note that when the petitioner Mohammad Anis aggrieved with the order dated 30111999 passed by SubDivisional Officer filed a revision under amended Section 219 of the Act of 1901, the learned Additional Commissioner mechanically affirmed the aforesaid order of SubDivisional Officer by his impugned order dated 3052000, a copy whereof is filed and marked as Annexure9 to the writ petition.

During the course of argument when the learned Standing Counsel, Sri L.P. Tiwari was confronted by the Court with the mandatory provisions envisaged under clause (b) of subsection (2) of Section 33 of the Act of 1901 which provides that other changes that may take place in respect of any land and shall also correct all errors and omissions in accordance with the provisions of Section 39 provided that the power to record a change under clause (b) shall not be construed to include the power to decide a dispute involving any question of title. After going through the aforesaid provisions, learned Standing Counsel, Sri Tiwari with feeble voice submitted that he has no option except to support the orders impugned passed by respondents No. 1 and 2 but fails to give reasons in support of impugned orders in the light of clause (b) of subsection (2) of Section 33 of Act of 1901 specially when mutation in favour of Hakimuddin in Khatauni on the basis of two saledeeds mentioned hereinabove are proved to be non est after dismissal of SLP by Supreme Court and Mohammad Anis is admittedly found to be in possession over the disputed land after decision of Execution No. 10 of 1998 by executing Court after evicting Hakimuddin whose name is to be expunged from Khatauni. Indisputably the title between Mohammad Anis and Hakimuddin in respect to the land in dispute has been finally adjudicated by Supreme Court on 521998 and as such in the instant proceeding question of title between Mohammad Anis and Hakimuddin is not involved.

For the reasons given hereinbelow, the orders passed by the respondents No. 1 and 2 are not sustainable in the eye of law and deserve to be quashed.

It is to be noticed that the Collector of a district is charged under Section 33 of Act of 1901 to maintain the record of rights, and for that purpose is annually, or at such longer intervals as the State Government may prescribe, cause to be prepared an amended register mentioned in Section 32. The register so prepared is to be called the annual register. The Collector is expected to cause to record in the annual register all successions and transfers in accordance with the provisions of Section 35 and other changes that may take place in respect of any land and is also to correct all errors and omissions in accordance with the provisions of Section 39 provided that the power to record a change under clause (b) shall not be construed to include the power to decide a dispute involving any question of title.

A close scrutiny of Section 39 of the Act of 1901 reveals that when an application for correction of any error or omission in the annual register is made to the Tahsildar, then on receiving such application under subsection (1) or any error or omission in the annual register coming to his knowledge otherwise, the Tahsildar shall make such inquiry as appears necessary and refer the case to the Collector, who shall dispose it of after play. In the present case the /� between the petitioner, Mohammad Anis and Hakimuddin has attained finality up to Supreme Court even then with close mind, the respondents No. 1 and 2 are shirking their responsibilities to correct the Khatauni which they are required to correct immediately either on the basis of an application moved by the petitioner, Mohammad Anis under Section 33/39 of Act of 1901 or otherwise coming to their knowledge after giving notice to Hakimuddin and providing him also an opportunity of hearing.

From the discussions made hereinabove, it is held that Revenue Courts while deciding application under Section 33/39 of the Act of 1901 neither have jurisdiction to go behind the decrees passed by the Civil Courts holding saledeeds to be void ab iniiio nor they have jurisdiction to go behind the orders passed by Executing Civil Courts in Executing Civil Courts'' decrees. Here in the present case indisputably two saledeeds dated 751960 and 461960 executed in favour of Hakimuddin on the basis of which his name was recorded, have been declared void ab initio upto Supreme Court, therefore, the entry of Hakimuddin in Khatauni automatically becomes mm est. It is made clear that from first appellate Court upto Supreme Court, the validity of aforesaid saledeeds was examined between Mohammad Anis and Hakimuddin. It is further proved that Civil Court while executing decree for possession evicted Hakimuddin and restored possession to Mohammad Anis. Thus in the present case wrong entry of Hakimuddin in the record of rights is to be expunged and in his place the entry of Mohammad Anis is to be recorded in accordance with law within the meaning of clause (b) of sub section (2) of Section 33 of the Act of 1901 and an argument contrary to it advanced by the learned Standing Counsel is hereby repelled.

For the reasons given hereinabove, the order dated 30111999 passed by the SubDivisional Officer, Kaushambi under Section 33/39 of the Act of 1901 and the order dated 3052000 passed by the respondent No. 1, Additional Commissioner, Allahabad Division, Allahabad deserve to be quashed.

As a result of aforesaid discussion, the instant writ petition is allowed.

Order dated 30111999, passed by SubDivisional Officer, Kaushambi and order dated 3052000 passed by Additional Commissioner, Allahabad Division, Allahabad are hereby quashed and the case is remanded back to the SubDivisional Officer, Kaushambi to decide the application of the petitioner under Section 33/39 of the Act of 1901 afresh expeditiously, preferably within a period of six months from the date of production of a certified copy oft his order in accordance with law in the light of the observations made in the body of this order after giving opportunity of hearing to Hakimuddin as well. Cost is made easy. Petition allowed