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2011 Supreme(All) 2399

[2011(8) ADJ 141]
ALLAHABAD HIGH COURT
BEFORE : S.U. KHAN, J.
Smt. PHEKNI …Petitioner
Versus
BOARD OF REVENUE, U.P. AT ALLAHABAD AND OTHERS ….Respondents
(Civil Misc. Writ Petition Nos. 11759, 11760 of 1996 with 13724 of 2000, decided on 30th August, 2011)

Advocates:
Counsel :
G.N. Verma and A.B. Singh for the Petitioner; C.S.C., Dhirendra Pratap Singh, K.K. Mishra, O P Singh, S N Singh, S.C., R.C. Singh for the Respondents.

Headnote:U.P. Zamindari Abolition and Land Reforms Act, 1950—Section 229-B—Evidence Act, 1872—Section 18—Sale-deed—Execution of —Compromise—Admissoin of a party is admissible only if it is made during continuance of interest—Petitioner executed sale-deed in favour of Smt. M. and Smt. R.—Accordingly, even if she entered into compromise with R.P. in revenue suit as alleged by him, still it was meaningless and under no circumstance binding upon Smt. M. and Smt. R.—Moreover, in alleged agreement dated 15.1.1987 it was mentioned that Smt. F. after receiving some amount from R.P. agreed for declaration in his favour—If property is transferred in lieu of money, then it is out-and-out sale—And immovable property cannot be sold except through registered sale-deed—Accordingly, said agreement even if entered into was illegal—First and second petition disposed of with direction that compromise decree dated 30.1.1987 shall not to be treated binding upon Smt. M. and Smt. R.—And their names shall be recorded/continued to recorded in revenue records over agricultural land in dispute—And they must be treated to be Bhoomidhars of same—And no one shall interfere in their possession. [Paras 9 to 13]

       

JUDGMENT

Hon’ble S.U. Khan, J.—Heard learned counsel for the parties.

2. Smt. Fekani was tenure-holder of some agricultural land. She executed a sale deed on 16.12.1986 of the same in favour of her two daughters, Smt. Molna Devi and Smt. Rambha Devi, who are petitioners in the second and third writ petitions. Smt. Fekani (or Phekani) was petitioner in the first writ petition. She died on 25.12.2007. Both of her daughters have been substituted at her place.

3. After execution of the sale-deed dated 16.12.1986, Ram Preet Viswakarma, respondent No. 4 in the first and second writ petitions and respondent No. 3 in the third writ petition filed suit under Section 229-B of U.P.Z.A. & L.R. Act on 22.12.1986, i.e. after six days of execution of the sale deed. (Suit No. 520 or 620) In the suit on 15.1.1987, a compromise was filed purporting to be on behalf defendant Fekani. According to the said compromise Smt. Fekani had received some amount and agreed for declaration in favour of the plaintiff Ram Preet. The suit was decreed on the basis of compromise by S.D.O. Sadar, Gorakhpur on 30.1.1987. On 7.3.1988, a restoration application was filed purporting to be on behalf of Fekani. However she later on denied to have filed any such restoration application. The restoration application was dismissed in default on 5.10.1988, against which an appeal was filed, which was also dismissed in default on 24.9.1988. Smt. Fekani again denied to have filed any such appeal.

4. On 8.9.1988, a second restoration application was filed in the suit by Smt. Fekani which according to her was her first restoration application. She also filed an application on 7.1.1991 for recalling the order dated 10.5.1988 through which earlier restoration application purporting to be on her behalf had been dismissed in default. She also filed similar restoration application in appeal for setting aside the dismissal in default order of appeal dated 24.9.1988. On 23.1.1991, appellate Court allowed the restoration application of Smt. Fekani dated 7.1.1991. However on the same date appeal was dismissed on the ground that according to Smt. Fekani, she had not filed the appeal. On 29.6.1991, S.D.O. dismissed the restoration application (second restoration application) filed by Smt. Fekani.

5. The daughters of Smt. Fekani, i.e. Smt. Molna Devi and Smt. Rambha Devi, had also filed restoration application before the S.D.O./Trial Court. The said application was also dismissed on 29.6.1991 by the same order on the ground that they were not parties in the suit.

6. Additional Commissioner, Judicial Gorakhpur Division, Gorakhpur on 22.12.1993 dismissed the appeals (No. 550 to 553, all of 1991), which had been filed by Smt. Fekani and her daughters against the order dated 29.06.1991. Against the appellate order Smt. Fekani and her daughters filed second appeals before the Board of Revenue, U.P. at Allahabad (Second Appeal No. 4 of 1993-94), which was dismissed on 17.11.1995 against which first and second writ petitions are directed.

7. Meanwhile, Smt. Molna and Smt. Rambha, daughters of Smt. Fekni also filed a civil suit for declaration that the decree passed under Section 229-B of U.P.Z.A. & L.R. Act on the basis of a forged compromise was not binding upon the petitioners. Suit was filed on 28.02.1996 (O.S. No. 315 of 1996). A preliminary objection was raised in the civil suit regarding its maintainability which was rejected by the trial Court on 26.11.1999 (First Additional Civil Judge, Senior Division, Gorakhpur). Against the said order, Ram Preet, defendant in the suit filed Civil Revision No. 266 of 1999, which was allowed by District Judge, Gorakhpur on 18.12.1999. Said order has been challenged through the third writ petition. The revisional Court held that only revenue Court had got jurisdiction to try the suit. With the said view, I fully agree. If a person challenges a decree passed by a revenue Court, then the same may be challenged before the revenue Court itself.

8. In Para-2 of














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