2019 Supreme(All) 2794

IN THE HIGH COURT OF ALLAHABAD
Salil Kumar Rai, J.
Vijayanand Saxena and Ors. - Appellants
Vs.
Board of Revenue and Ors. - Respondent
Writ - B No. 318 of 2018
Decided On : 22-11-2019

Headnote:

Uttar Pradesh Land Revenue Act, 1901 – Section 34 – Constitution of India, 1950 – Article 226 – Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 – Sections 229, 333 – Land Dispute – Facts of the case are that one Bramhanand was the original tenure holder of the disputed plots. Sachidanand and Vashunanand, i.e., the predecessors of the petitioners and the respondent Nos. 3 and 4 were the brothers of Bramhanand. – One Gyanwati, i.e., the vendor of respondent No. 2 claimed herself to be the widow of Bramhanand. Bramhanand died on 5th February, 1976. After the death of Bramhanand, the name of Gyanwati was entered into the revenue records in place of Bramhanand – Consequently, Sachidanand and Vashunanand, i.e., the predecessors of the petitioners and respondent Nos. 3 and 4 filed an application under section 34 of the Uttar Pradesh Land Revenue Act, 1901 claiming themselves to be the heirs of Bramhanand. – In their aforesaid application, Sachidanand and Vashunanand alleged that Gyanwati was not the widow of Bramhanand. – Application of Sachidanand and Vashunanand was dismissed by the concerned Tehsildar. – Order passed by the Tehsildar was never challenged by Sachidanand and Vashunanand in appeal or revision. – Subsequently, Gyanwati executed sale deeds transferring the disputed plots in favour of respondent No. 2. Sachidanand and Vashunanand, i.e., the predecessors of the petitioners instituted cases under section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 praying for a decree declaring them to be the Bhumidhars of the disputed plots. – Trial Court vide its judgment and decree, dismissed the suits filed by the predecessors of the petitioners and respondent Nos. 3 and 4 after considering the testimony of Gyanwati and her witness as well as the documentary evidence filed by Gyanwati. – While dismissing the suits filed by Sachidanand and Vashunanand, the Trial Court considered the voter list and the receipts of house tax and water tax and the certificate issued by the Principal Rajkiya Inter College which showed that Gyanwati was recorded as the wife of Bramhanand. – In the Trial Court, Gyanwati had also stated that she had a daughter Neerja Sinha from her marriage with Bramhanand and the High School certificate of Neerja Sinha was filed by Gyanwati to prove the fact that Bramhanand had a daughter named Neerja Sinha which was considered by the Trial Court. – Held, Through his order Additional Commissioner had set aside the order passed by the trial Court on the ground that the trial Court had erred in relying on the photo copies of the documents filed by the defendants in the case. – There is nothing on record to show that the plaintiffs, i.e., the predecessors-in-interest of the petitioners, had registered their objections before the Trial Court against admitting or reading in evidence the photo copies of the documents filed by the defendants. The failure of the plaintiffs to so object before the Trial Court debarred them from raising the said objections in any superior Court and the Trial Court committed no jurisdictional error by reading in evidence the photo copies of the documents filed by the defendants. – For the aforesaid reason, also the Additional Commissioner exceeded his jurisdiction in setting-aside the order passed by the Trial Court on the ground that the Trial Court had considered photo copies of certain documents while rejecting the case of the predecessors of the petitioners. – In his order Additional Commissioner also did not consider that while dismissing the case of the predecessors of the petitioner, the Trial Court had considered the oral testimony of Gyanwati and her witness and also the high school certificate of her daughter to record a finding that Gyanwati was the widow of Bramhanand and, therefore, entitled to succeed Bramhanand. – Evidently, the order dated 30.7.2005 passed by the Additional Commissioner was illegal and without jurisdiction. – Court would not interfere under Article 226 of the Constitution of India to set-aside one illegal order to restore another illegal order assuming, there is any illegality in the impugned order passed by the Board of Revenue. – Writ Petition Dismissed