Back
2024 Supreme(All) 2394
IN THE HIGH COURT OF ALLAHABAD
ASHUTOSH SRIVASTAVA, J.
Brijlal - Petitioner
Versus
State Of U.P. And Others – Respondents
Writ B. No. 2851 Of 2024
Decided On : 25-07-2024
For the Petitioner: Ganga Prasad Gupta.
For the Respondents: Bhupendra Kumar Tripathi, C.S.C., Pushpendra Kumar Yadav.
The court upheld the SDM's order regarding mutation proceedings, emphasizing that legal possession must be recognized over mere physical possession.
Headnote:(A) U.P. Revenue Code, 2006 - Sections 210 and 35(2) - Mutation proceedings - Legality of orders passed by the Board of Revenue and SDM challenged - The SDM found that the entire plot was not a PWD road and remanded the case for fresh decision - The Board of Revenue upheld the SDM's order, stating it was in accordance with law. (Paras 2, 5, 9, 11)
(B) Possession - Legal possession must be construed as lawful possession under law, not merely physical possession - The SDM's order did not mutate the name of the respondent but remanded for fresh consideration. (Paras 10)
Facts of the case:
The petitioner challenged the legality of the mutation order regarding Arazi No. 88, which was sold to the respondent. The Naib Tehsildar initially rejected the mutation based on the plot being a public road. The SDM later allowed the appeal, stating the entire plot was not a road.
Findings of Court:
The SDM's order was upheld as it provided adequate reasoning and did not suffer from any legal infirmity.
Issues: Whether the entire plot was a public road and if the respondent had legal possession.
Ratio Decidendi: The court affirmed that the SDM's findings were based on credible evidence and that legal possession must be recognized.
Result: Writ petition dismissed.
JUDGMENT :
(Ashutosh Srivastava, J.)
1. Heard Sri Ganga Prasad Gupta, learned counsel for the petitioner, learned Standing Counsel for the State-respondents, Sri Bhupendra Kumar Tripathi, learned counsel for respondent no. 5, the Gaon Sabha concerned and Sri Narendra Mohan, learned counsel who has filed his appearance on behalf of the respondent no. 4, Sudama Devi w/o Rambali.
2. The writ petition arises out of mutation proceedings and has been filed questioning the legality, propriety and correctness of the order dated 04.06.2024 passed by the Board of Revenue in Revision No. 1988 of 2024 under Section 210 of the U.P. Revenue Code, 2006 whereby and whereunder the revision preferred against the order dated 30.04.2024 passed by the SDM, Mariyahu in Appeal No. 2209 of 2023 under Section 35(2) of the U.P. Revenue Code, has been rejected and the order dated 30.04.2024 has been upheld.
3. Learned counsel for the petitioner contends that the dispute relates to Arazi No. 88 area 0.016 hectare initially recorded in the names of Lalta Prasad and Indrajeet sons of Mata Prasad. The recorded tenure holders sold the aforesaid Arazi No. 88 to the respondent no. 4 Sudama Devi w/o Rambali by executing a sale deed dated 18.09.2020. Mutation proceedings under Section 34 of the U.P. Revenue Code, 2006 was initiated by the respondent no. 4 before the Naib Tehsildar which proceedings were registered as Case No. 3449 of 2020. A report was called for from the Lekhpal and the Lekhpal submitted the report dated 03.11.2023 to the effect that demarcation of the Arazi No. 88 area 0.016 hectare was done by the Halka Lekhpal on 18.04.2022 and as per the report the entire area of Plot No. 88 was a road constructed by the PWD and the land was not being used for agricultural purposes. The vendor and vendee were not in possession over the plot and no mutation order could be passed in favour of respondent no. 4. The petitioner also filed objections to the Mutation Proceedings asserting that the Plot No. 88 was a public road and no mutation order could be passed in respect thereof. The husband of the petitioner also constructed a boundary wall by encroaching over northern patri of the PWD road. The petitioner had filed a complaint on the Chief Minister's portal and the PWD was ordered to take action. A notice dated 27.11.2020 was issued with regard to the encroachment over the PWD road. The notice was challenged before this Court in Writ-C No. 30 of 2021 which writ petition was disposed of vide order dated 19.03.2021 directing the State respondents and PWD to undertake measurement of the disputed plot and in the event the alleged boundary wall is found on the public land only then it may be removed. Thereafter a fresh report dated 26.05.2022 is stated to have been filed by the Halka Lekhpal stating that the entire land of Plot No. 88 was recorded as Sadak and no agricultural operation is carried out over the said plot.
4. The Naib Tehsildar relying upon the said report vide order dated 21.02.2023 rejected the mutation case. Aggrieved by the order dated 21.02.2023 the respondent no. 4 filed an appeal under Section 35(2) of the U.P. Revenue Code, 2006 registered as Case No. 3449 of 2020 before the Sub Divisional Magistrate. In the appeal it was averred that the petitioner herein namely Brijlal s/o Chhabinath Yadav is not a co-tenure holder of the plot in question nor can be said to have any interest therein so as to oppose the mutation on the basis of registered sale deed. The vendee is in possession over the land sold since the date of the sale and the vendor has appeared before the mutation Court and accepted the same. The name of the respondent no. 4 is liable to be mutated over the plot in question on the basis of the sale deed.
5. The Sub Divisional Officer, Mariyahu, Jaunpur vide order dated 30.04.2024 after hearing the petitioner, respondent no. 4 and after calling for instructions from the Assistant Engineer PWD, Jaunpur allowed the appeal of the respondent
