Court No. - 36

Case :- WRIT - C No. - 2639 of 2019

Petitioner :- Ram Sajiwan And 5 Others

Respondent :- State Of U.P. And 8 Others

Counsel for Petitioner :- Satyendra Kumar Singh,Chandra Prakash Misra

Counsel for Respondent :- C.S.C.,Diwakar Singh,Moeez Uddin

Hon'ble Neeraj Tiwari,J.

Heard learned counsel for petitioners, learned Standing Counsel

for respondent nos. 1 and 2 and Sri Moeez Uddin, learned

counsel for respondent nos. 4 to 9.

Brief fact of the case is that upon the death of Ramdas, Smt.

Mahdei put up her claim for being entered in the Revenue

Records. Simultaneously, the predecessor in interest of the

private respondents Smt. Sundari also staked her claim.

When Mahdei died on 28.11.1984, the predecessor in interest of

the petitioners Benchu entered appearance in the case and

claimed to be a legal heir and representative of Smt. Mahdei.

Initially, on 30.10.2012 the Naib Tehsildar found that neither

the predecessor in interest of the petitioners nor the predecessor

in interest of the respondents no. 6 to 10 had any interest and

directed for the vesting of the property in the State Government.

Therefore, two separate appeals were filed by both the sides. On

19.10.2013, the appeal of the private respondents was allowed

forcing the petitioners to file a Revision. The Revision was

dismissed by the impugned order dated 4.3.2015.

The revisional courts order was challenged in Writ C No. 23673

of 2015 and this Court after considering the argument of

learned counsel for both the parties, disposed of the writ

petition vide order dated 6.3.2018 with liberty to the petitioners

to file declaratory suit as title was disputed and that cannot be

decided in mutation proceeding. Relevant paragraphs of the

order dated 6.3.2018 is being quoted herein below;

"However, when the learned counsel for the petitioner and the learned

Standing Counsel were confronted with the proposition of law as has been

laid down in 1956 ALJ 807 : Jaipal Minor v. The board of Revenue, U.P.

Allahabad and Others; and 1991 RD 72 : Ram Bharose Lal v. State of

U.P. and Others. that mutation Courts do not decide any title and,

therefore, a writ Court may not interfere, learned counsel for the

petitioner submitted that the petitioners would like to get their rights

declared by filing a regular Civil Suit.

Under such circumstances, it is being directed that if the petitioner files a

declaratory suit with the certified copy of this order within a period of one

month from today, then the same shall be decided within a period of six

months thereafter. Since an interim order was operating in this Court and

the Revisional Court Order had been put in abeyance, it is being provided

that the Revisional Court's order shall not be given effect for a period of 7

months from today. The parties are also directed not to create any third

party right for the next seven months or till the case is decided, whichever

is earlier.

The writ petition is, accordingly, disposed of."

Learned counsel for the petitioners submitted that pursuant to

order of this Court dated 6.3.2018, petitioners have filed regular

suit under Section 144 of U.P. Revenue Code, 2006 (hereinafter

referred to as "Code, 2006") before respondent no. 2, which was

dismissed on 29.12.2018 as not maintainable on the ground that

under the order of Hon'ble High Court, due to filing of regular

suit, Board of Revenue has stayed its proceeding in pending

Revision, therefore, during the pendency of Revision before

Board of Revenue, hearing of present declaratory suit is not in

the interest of justice and the same was dismissed as not

maintainable.

He next submitted that this fact is not disputed that Revision

pending before Board of Revenue is arising out of mutation

proceeding initiated under Section 34 of U.P. Land Revenue

Act, 1901. Further, it is also not disputed that in light of

judgement of this Court in the matter of Jaipal Minor v. The

board of Re