Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. The petitioners have challenged the validity and correctness of the orders dated 26.5.87 and 18.7.90 passed by respondent No. 2 arising out of the proceedings under Section 143 of the U.P. Z.A. & L.R. Act. The petitioners have also challenged the order dated 8.2.2002 passed by the Addl. Commissioner (Judicial) First, Varanasi Region, Varanasi dismissing Revision No. 49 of 1999 filed by the petitioners against the aforesaid orders passed by the Up-Zila Adhikari Machchlishahar, District Jaunpur.
Background of the case.
3. The dispute in the writ petition is with regard to new plot No. 538 area 0.08 acre which was carved out during consolidation proceedings corresponding to old plot No. 1958/4 area 0.08 acre situate in village Gauriadeeh, Pargana Mungra Tehsil Machchli Sahar, District Jaunpur.
4. The land in dispute was formerly under the tenancy of Mahadeo son of Girdhari and Ram Autar son of Shivbheekh with transferable rights. Mahadeo son of Girdhari executed a registered sale-deed on 5th July, 1926 in respect of half share of old plot No. 1958/4 area 4 decimal alongwith other plots in favour of Kedar Nath, the predecessor of the petitioners.
5. Thereafter another registered sale-deed was executed by Ram Autar son of Shivbheekh also in favour of Kedar Nath in respect of half share of old plot No. 1958/4. Thus, Kedar Nath became bhumidhar over the land in dispute after enforcement of U.P. Zamindari Abolition & Land Reforms Act, 1950. In the basic year khatauni the names of Kedar Nath and other petitioners were recorded as bhumidhar. The chak was also carved out in their names. The petitioners have filed CH form Nos. 23, 41 and 45, which have been appended as Annexures- SA-1,2 and 3 respectively along with the supplementary affidavit.
6. The following is the pedigree of the petitioners.
Kedar
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Ghanshyam Ramesh Shitla Lalit Shailendra Shiv
Chand Prasad Mohan Kumar Prasad
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Surya Prakash
The counsel for the petitioners has drawn the attention of the Court to form No. 2A which is prepared before the consolidation proceedings and to CH form nos. 41 prepared during the consolidation proceedings and to form No. 45 which is final record of holding to show that plot No. 538 (new) corresponds to old plot No. 1958/4 and that the nature of land before and after the consolidation proceedings is recorded as Abadi. In CH form No. 45 prepared after the consolidation proceedings the names of Kedar Nath father of the petitioners as well as petitioners recorded over plot No. 538 area 0.08 acre as tenure holder. Khataunis 1393 Fasli to 1394 Fasli have also been brought on record showing their names as tenure holder over plot No. 538 area 0.08 acre.
Facts of the case.
7. One Babu Lal filed an application under Section 143 of the Act claiming the land in dispute to be his abadi, a 'rasta'. It was prayed that the names of the petitioners be expugned from records and declaration be made by the S.D.O. declaring the land in dispute as Abadi.
8. The Sub-Divisional Officer, Machchli Sahar by order dated 26th May, 1987 expugned the names of the petitioners from the record and entered the land in dispute as Abadi in class-6 of the Land Record Manual.
9. The petitioners filed an application for restoration on 24.7.1987 praying that the exparte order dated 26th May, 1987 was passed without any notice or knowledge of the petitioners. It was prayed that the aforesaid order be set aside and the case be restored and heard on merits.
10. The Sub-Divisional Officer rejected the application of the petitioners for restoration and recorded a finding that the order dated 26.5.87 was not exparte as notice was duly served on the petitioners but they did not purposely appear before him in response to the notice aforesaid. It was observed that the Notice Server had in his note dated 15.1.87 given a remark that the petitioners had refused to take the notice, as such the notice was served by affixing it at their residence. While rejecting the restoration application of the petitioners the Sub-Divisional Officer held that on enquiry the land in dispute was found to be Abadi and not a part of the petitioners holding. It was also held that the case was ordered to proceed exparte on 11.2.87 but the petitioners neither filed any application for setting aside the aforesaid order to proceed exparte nor any application under Section 5 of the Limitation Act was filed with the application for restoration of the order dated 24.7.87.
11. The findings recorded by the Sub-Divisional Officer were challenged by the petitioners in Revision No. 49 of 1999 filed before the Addl. Commissioner (Judicial ), First Varanasi Region, Varanasi. The Revisional Court by order dated 8.2.2002 dismissed the revision. The relevant portion of the order is as under:-
^^bl vkns'k dks ikfjr djus ds iwoZfuxjkuhdrkZx.k dks uksfVl tkjh dh x;h A bl uksfVl esa is'kh dh frfFk 20-1-87fy[kh xbZ gS A bl uksfVlksa ij ukfVl loZj dh vk[;k fnukad 15-1-87 ds vuqlkjfuxjkuhdrkZx.k us uksfVl ysus ls badkj fd;k] tc uksfVl dh ,d izfr muds LFkku ijpLik dj nh xbZ A fuxjkuhdrkZ ls viuh rtchtlkuh lkuh esa ;g ugha fy[kk fd uksfVlds xokgh ds uke dk dksbZ Hkh O;fDr xkao esa ugha gS A bl lEcU/k esa mUgksausvius i= fnukad 24-7-87 esa Hkh ugha fy[kk A bl izdkj ekuk tk;sxk fd uksfVl dsxokg fookfnr xzke ds gh fuoklh gS A foi{kh ckcw yky us bl 'kiFk i= fnukad-------nkf[ky fd;k gS] ftlesa fuxjkuhdrkZ dks ukfVl ls feyus vkSj fookfnr Hkwfeij vkcknh fLFkr gksus dk rF; fy[kk x;k gS A fuxjkuhdrkZ us blds fo:) fjTokb.Mjnkf[ky ugha fd;k gS A bl izdkj rtchtlkuh dh fe;kn vkns'k ds fnu ls tksM+h tk;sxhA rtchtlkuh fe;kn ckgj gS] ijUrq fuxjkuhdrkZ us foyEc ekQ djus gsrq dksbZizkFkZuk i= ugha fn;k gS] blfy;s rohlkuh dks fe;kn ckgj ekudj [kkfjt djus esaav/khuLFk U;k;ky; }kjk dksbZ =qfV ugha dh xbZ gS A**
Submissions.
12. The counsel for the petitioners has assailed the aforesaid orders dated 26.5.87 and 8.2.2002 on the ground that it is evident from the record that the petitioners were never served with the notice. In the restoration application dated 24.7.1987 it was stated that when the petitioners came to know about the exparte order, they got the record inspected and restoration application was filed on 24.7.87. It is stated that the restoration application was filed well within time from the date of knowledge as such the application under Section 5 of the Limitation Act was not necessary. It was urged that Article 123 of the Limitation Act, 1963 clearly provides limitation of thirty days from the date of knowledge, as such the trial Court has wrongly rejected the application for restoration filed by the petitioners on the ground that the petitioners have not challenged the order dated 11.3.87 to proceed the case exparte.
13. It is next submitted that there is no provision for setting aside the order to proceed exparte rather, restoration application is maintainable only against the exparte judgment and decree under Order 9 Rule 13 C.P.C. It is also submitted that the petitioners had denied the service of notice and the burden of proof was on the opposite parties who did not file any evidence to prove the service of notice, as such the order dated 18th July, 1990 rejecting the restoration application of the petitioners is illegal and the same is liable to be set aside.
14. The counsel for the petitioners further contends that Babu Lal not being a bhumidhar of the land in dispute, had no right to file application under Section 143 of the U.P.Z.A. & L.R. Act. In support of his argument he has cited Kishan Narain and Ors. v. State of U.P. and Ors., 1985 ACJ 310 in which it has been held that a bhumidhar alone can obtain declaration under Section 143 of the U.P. Z.A. & L.R. Act. The contention of the counsel for the petitioners is that under Section 142 of the U.P. Z.A. & L.R. Act bhumidhar with transferable rights is entitled to use the land for any purpose whatsoever. He further contends that under Section 143(1) of the U.P. Z.A. & L.R. Act a bhumidhar with transferable rights can use the land of its' holding for the purpose not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming. Section 143(2) of the Act provides that upon the grant of the declaration mentioned in Sub-section (1) the provisions of this Chapter ( other than this section ) shall cease to apply to the bhumidhar with tranferable rights. It is submitted that the Sub-Divisional Officer, in the circumstances had no jurisdiction to entertain or initiate any proceedings under Section 143 of the U.P. Z.A. & L.R.Act on the application filed by Babu Lal.
15. Relying upon the decisions in Raj Bahadur Chaudhari and Ors. v. Collector, Etawah and Anr., 1979 ACJ-438 and Indrajeet Singh v. Sardar Arjun Singh and Ors., 1983 All.L.J.388 it is urged that under Section 142 of the Act a bhumidhar has every right to use his land for any purpose and also has every right to raise the construction of building or use the land as Abadi. It is argued that except a bhumidhar no other person particularly a stranger is not entitled to obtain declaration under Section 143 of the Act in respect of land under his bhumidhari rights.
16. Rebutting the argument of the counsel for the petitioners Sri G.N. Verma, senior counsel appearing for the respondents submits that it is apparent from the reading of Section 143 of the Act that any 'interested person' can file an application under the aforesaid this section for change in land use. It is submitted that old Section 143 was amended by Act No. 37 of 1958. The effect of earlier section was that only bhumidhar could have filed an application under Section 143 of the Act but after the amendment any person interested is entitled to file an application under Section 143 of the Act, as such the case law cited by the counsel for the petitioners is not applicable. In the case of Kishari Narain ( supra) the Court was concerned with the unamended U.P. Z.A. & L.R. Act and that case was under the U.P.Z.A. & L.R.Act No. 30 of 1957. Emphasis was laid by the counsel for the petitioners that if certain plots which forms part of the holding and certain construction or 'Abadi' have been made on it then in absence of declaration under Section 143 of the Act if would continue to remain agricultural holding and will not be recorded as Abadi but has to be recorded as Abadi Shamil Jot which is subject matter in the present case. He submits that in the present case the only question for consideration is whether the respondent Babu Lal who was a member of the public, could bring to the notice of the S.D.O. that the disputed land was Abadi. It is stated that Babu Lal only gave an information to the S.D.O. Consequent to the information the S.D.O. made an enquiry and directed the disputed land to be recorded as Abadi under class-6 of the Land Records Manual. The Courts below have accepted this and have rightly returned a finding against the petitioners. The counsel for the respondents has relied upon the case of Ram Chandra v. Vth A.D.J., Allahabad, 2003 RD-765 in support of his contention.
17. The counsel for the respondents then submits that the argument of the counsel for the petitioners that the impugned order dated 26.5.87 was passed by the S.D.O. without giving an opportunity of being heard to him is against the matter on record. He states that it is apparent from the judgment dated 8.2.2002 passed by the Revisional Court that notice was duly served on the petitioners but they have purposely not accepted it and had full knowledge of the proceedings but deliberately did not appear before the S.D.O. It is further submitted that the S.D.O. has further recorded finding that the application which has been filed by the respondent was only an information to the Court and the Court acting on the said information has taken suo moto action, made enquiries and after enquiry it was found that the land in dispute being Abadi before the start of the consolidation operation, hence it ought to be recorded as Abadi; that the findings of the courts below are pure findings of fact based on admissible evidence and do not require any interference in the facts and circumstances of the case
18. With regard to the contention of the counsel for the petitioners that the land in dispute being recorded as Abadi, it could not interfered, Sri G.N. Verma, the senior counsel appearing for the respondents submits that since it was in CM Form 2-A the land in dispute has been recorded as Abadi and no objection having been filed by the petitioners under Section 9-A (2) of the Act, they are debarred from raising objection under Section 49 of the Consolidation of Holdings Act. He further states that since it was not recorded as a holding which could be subject to consolidation operation, hence it has come in the consolidation pool with the result that the tenure holder is deprived of getting it allotted in their holding. Advancing the arguments further it is submitted that since no consolidation was effected, hence it was an Abadi and in view of the admitted fact no inteference in writ petition can be made as the petitioners have an alternate and efficacious remedy by way of challenging the impugned order passed under Section 143 of the Act in regular suit proceedings.
19. I have given my anxious thoughts to the rival contentions of the counsel for the parties.
20. It is claimed by the respondent Babu Lal that he was a member of public and had every right to give information to the S.D.O. under Section 143(1) of the Act for correction of records of the Gaon Sabha. The S.D.O. could also have taken suo moto cognizance and after enquiry passed appropriate orders. On the other hand, the petitioners have urged that except a bhumidhar or an 'interested person' no one can move an application under Section 143 of the Act. Thus the contents of the application/information become relevant for deciding the controversy involved in this case. The application/information by respondent Babu Lal has been appended as Annexure-4 to the writ petition. It is as under:-
^^udy vthZ nkok okn la- 20@18/kkjk 143 ekStk xkSjs;kMhg ijxuk eqaxjk
ckcw yky cuke dsnkj ukFk A
U;k;ky; ijxukf/kdkjh eNyh 'kgjtsj dk;Zokgh 19-5-88
c vnkyr Jh eku~ gkfde ijxuk eNyh'kgj tkSuiqj A
eq- ua- 20@18lu~ 1986
ckcw yky cuke dsnkj ukFk rFkk vU;
lk- ekS- dLok ckn'kkgiqj ijxuk orglhy eNyh 'kgj ftyk tkSuij A
/kkjk 143 tehaunkjh mYewyu ,sDV
izkFkhZ fuEufyf[kr fuosnu djrkgS A
1- nQk&1 ;g fd vkjkth futkbZ gLo rQlhy Qsynj[okLr vkoknh izkFkhZ gS A
2- nQk&2 ;g fd vkjkth futkbZ ojoDr VwVustehaunkjh o mUewyu tehaunkjh o vkt rd vkoknh gS vkSj vkoknh pyh vk jgh gS A
3- nQk&3 ;g fd ojoDr ijrky pdcUnh vkoknhik;h x;h gS vkoknh dk bUnjkt Hkh lh-,p- 2@5 esa fd;kx;k gS A QkeZ 41 esa Hkh vkoknh ntZ dh x;h A
4- nQk&4 ;g fd vk- fu- vkoknh jkLrs dhHkwfe jgh gS vkSj vkoknh [kkrs esa ntZ pyh vk;h A
5- nQk&5 ;g fd pdoUnh dk cUnkscLr okLrs le;iwfrZ oknh x.k us [kkyh QthZ dk;Zokgh djds fpV~Vk esa vksojjkbfVax o bjst djds ,oadjkds vkjkth futkbZ dks xyr rjhds ls vius [kkrs esa ntZ djk fy;k tks QthZ ,oaxyr gS A vkoknh [kkrs dh vkjkth futkbZ ds ckor u dh gS eqdnek pyk u rks dskbZvkns'k gh gqvk vkSj ugh eqdnek pyus dh vko';drk Fkh A Li'Vr% tky fd;k x;kgS A vkSj pdcUnh cUnksoLr xyr bUnjkt dk cuok;k x;k gS tks dkfcy [kkfjt gS Avkjkth futkbZ vkoknh gS A vkoknh oxZ 6 ntZ gksuh pkfg;s A
6- nQk&6 ;g fd vkjkth futkbZ ij izfroknhx.k dk dCtk n[ky u dHkh Fkk vkSj u gS A vkjkth futkbZ ij dCtk n[ky ge izkFkhZ gSA U;k; fgr eas bUnjkt lgh gksuk vko';d gS A
vr%izkFkZuk gS fd vkjkth futkbZ ls izfroknh x.k dk uke [kkfjt djds vkoknh ?kksf'krfd;k tkos A vkSj vkoknh [kkrs esa ntZ fd;k tkus dh vkKk iznku fd;k tko rkfd U;k;gks A
rQlhyvkjkth okdk ekStk xkSj;kMh i- eqaxjk rglhy eNyh'kgj ftyk tkSuiqj A
iqjkuk xk-u- 1958@4@08 fn-
u;k xk- ua- 5338@08 izkFkhZ
n- ckcw yky ckcw yky iq= op ek-eks- xkSj;kMhg
i- eaqxjk rglhy eNyh'kgj ftyk tkSuiqj
9-11-86**
21. From perusal of the aforesaid application filed under Section 143(1) of the U.P.Z.A. & L.R. Act, it is evident that Sri Babu Lal had averred that the land in dispute is his abadi which has been found to be so on the spot in the inspection and entries have been made in C.H. form No.'s 2A and 41 . It further appears that the disputed land is claimed to be a public way, which has wrongly been entered in the CH forms and the Land Manual Records as abadi of the petitioners as bhumidhar. It is seriously disputed that entries have been made therein by manipulation in records i.e. by making forged entries by erasing correct entries and overwriting. It is also claimed that the land in dispute is Gaon Sabha land and should be recorded as class 6 land in in Land Manual Record as neither any case was filed for recording it in the petitioners' 'khata' nor any order to this effect has been passed by any Court. It is lastly alleged that the petitioners were never in possession nor are in possession of the land in dispute. It was then prayed that the names of the petitioners from the land in dispute be expunged and be entered in the land of Gaon Sabha as 'Abadi'. Thus the prayer is two fold:-
(i) The names of the petitioners from the land in dispute which is alleged to have been entered in the Land Manual Records by manipulation and fraud on basis of forged entries be expunged ;
AND
(ii) The land be recorded as Goan Sabha Abadi under class 6 of Land Manual Record after cancellation of the forged entries in favour of the petitioners in Land Manual Record.
22. Babu Lal claims that land in dispute is public way and has wrongly been entered as abadi. At the same time he claims the disputed land to be his and in his possession. He then claims that the said land is liable to be recorded as Gaon Sabha land under class 6 of Land Manual Record. Babu Lal was neither a member of the Gaon Sabha nor there was any resolution passed in his favour to initiate proceedings. The rights which were affected were that of the recorded bhumidhars i.e. the petitioners, In such circumstances, the bhumidhar or any person interested having right in the land could move application under Section 143 of the Act for the purpose of change of land user. The respondent Babu Lal claimed himself to be owner and in possession of land in dispute as such he was an interested person and could have moved the application. It was alleged by Babu Lal that the land was wrongly shown as Abadi in the consolidation proceedings as the land neither belonged to the petitioners nor they were never in possession over it. The dispute is thus dispute of title and could not have been decided in summary proceedings under Section 143 of the U.P.Z.A. & L.R. Act . The question whether the land was Abadi from before the consolidation proceedings or not or whether it was fraudulently recorded as Abadi under CH form No. 2A and CH form No. 45 during consolidation proceedings or before start of consolidation proceedings could have only been decided in a civil suit and not in summary proceedings under Section 143 of the Act by the S.D.O. by taking cognizance of the letter of Babu Lal. The proceedings under Section 143 of the Act in the instant case by the S.D.O. were therefore, not maintainable.
23. In so far as question of bar of Section 49 of C.H. Act is concerned, it is suffice to say that entries in consolidation proceedings are said to be forged, hence validity of such entries can also be examined by the Civil Court for the purpose of title. The S.D.O. could not have usurped the jurisdiction of the Civil Court and decided these questions in summary proceedings under in the facts and circumstances of the case. Section 142 of the Act provides that the bhumidhar with transferable rights of his bhumidhari land shall use it for any purpose whatsoever and no other person. In the facts and circumstances, the question as who is bhumidhar and whether the land in dispute is of the petitioners or respondent Babu Lal or whether the entries in the names of the petitioners are fraudulent or not can be decided only by the civil Court. I have already held the proceedings before the S.D.O. for declaration were not maintainable, hence question regarding service of notice etc. does not require any decision.
24. For the reasons stated above, the writ petition is allowed. The orders dated 26.5.87, 18.7.90 and 8.2.2002 are set aside being illegal and without jurisdiction.
25. No order as to costs.