1 Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 646 of 2006. Manoj S/O Natthu Singh, R/O Village Harcandrapur, Pargana Manglore, Tehsil Roorkee, District Haridwar. …. Petitioner. Vs. Upper Mukhya Revenue Commissioner, Uttaranchal, Dehradun and others. ….Respondents. Sri S.K. Jain, learned counsel for the petitioner. Sri Sudhir Kumar, Brief Holder for the State for the respondent no. 1 & 2. Sri Alok Singh Senior Advocate, with Sri D. Barthwal , learned counsel for the respondent no. 3. Date November 28, 2008 P.C.: Hon’ble B.S. Verma, J. By means of this writ petition, the petitioner has sought a writ of certiorari quashing the impugned order dated 29-10-2003, passed by respondent No. 2 – Commissioner Garhwal Division and dated 19-5-2006 passed by the respondent no. 1- Additional Chief Revenue Commissioner (Annexure Nos. 11 and 13 respectively to the writ petition. By the order dated 29-10-2003 passed in Revenue Revision No. 44/2002-, the respondent no. 2 has set aside the order dated 2-8- 2003 passed by Tahsildar Laksar in Case No. 20/94 Manoj Vs. Kabulla, under Section 34/35 of the Land Revenue Act and the consequential Amal Daramad/mutation made on that basis and also directed the Up Ziladhikari Roorkee to obtain the explanation of the Tahsildar Laksar as to why contempt proceedings be not initiated against him in the matter. By the order dated 19-5-2006, the respondent no. 1 has dismissed the Revision No. 3/2003-04 Manoj Kumar Vs. Rajendra Singh and others. Brief facts, giving rise to the present writ petition, according to the petitioner, are that one Kabulla was the sole Bhumidhar and exclusive owner and Bhumidhar of the land of Khata No. 136, Khasra Old No. 1360 F., 1363 F. and 1375 F., new Khasra 2 No. 221 M, area 1.427 hectare, 221 M. area 0.663 Hectare and 90 M. area 0.017 Hectare, total area 2.106 Hectare, situated at Village Harchandrapur, Pargana Manglore, Tehsil Roorkee, District Haridwar, along with other lands. Kabulla got two sons namely Om Prakash and Rajendra Singh, whose relations were not cordial with their father since long. Both the sons are bachelor. As such, Kabulla had no concern with his sons due to their bad habits and drunkenness and he wanted to deprive his sons from his property. The petitioner is the nephew of Kabulla and he earned love and affection of his uncle Kabulla and on account of love affection and services of the petitioner, Kabulla wanted to give some land to the petitioner. Kabulla executed a will on 21-7-1992 in favour of the petitioner. By virtue of that will, the aforesaid land in question of Kabulla bequeathed to the petitioner. However, Kabulla died in the year 1992. After the death of Kabulla, the petitioner became the sole Bhumidhar of the disputed land on the basis of the will dated 21-7-1992 and since then, he is in actual physical possession over the same. After the death of Kabulla, the petitioner applied for mutation of his name before Tehsildar. The application was registered as Case No. 20 of 1994 Manoj Kumar Vs. Kabulla (deceased) and others and notices were issued to the respondent nos. 3 and 4. Despite service of notice, they did not file any objection and ultimately vide order dated 28-2-1995, the name of the petitioner was mutated in the revenue records in place of late Kabulla in respect of the land in question. According to the petitioner, after the death of their father, the respondent nos. 3 and 4 transferred and disposed of the entire property including the land in question in favour of various persons detailed in paragraph no. 10 of the writ petition. The petitioner filed a suit for cancellation of sale deeds dated 28-7-1995, 28-3-1994 and 20- 7-1994 by filing separate suits before the Civil Judge (Junior Division) Roorkee, district Haridwar. Those suits were contested by the defendant-purchasers and the decree of cancellation of sale deed was 3 passed. According to the petitioner, the decrees passed in those suits have become final as no appeal was filed against the judgment and decree passed by the trial court. Only Rajendra Singh after a long time moved an application before the Tehsildar for setting aside the order dated 28-2- 1995. The Tehsildar without notice to the petitioner, set side the order dated 28-2-1995 vide his order dated 24-7-2002 and the application moved by respondent no. 3 was allowed ex parte and name of Rajendra Singh was mutated in the revenue records. When this fact came to knowledge of the petitioner, he moved an application on 29-7-2002 for recalling the ex parte order dated 24-7-2002 before Tehsildar. Notices were issued to respondent nos. 3 and 4 and ultimately the application of the petitioner was rejected vide order dated 26-8-2002. Aggrieved, the petitioner filed an appeal under Section 210 of the Land Revenue Act, which was registered as Appeal No. 3 of 2002-2003, Manoj Vs. Rajendra Singh before the Assistant Collector 1st Class Roorkee. The appeal was allowed vide order dated 7-6-2003. The order dated 24-7-2002 and 26.8.2002 were set aside. The matter was remanded to the Tehsildar concerned to decide the application afresh on merits after affording opportunity of hearing to the parties. Aggrieved by that order, the respondent no. 3 preferred a revision (No. 44 of 2002 – 2003 before the Commissioner Garhwal Division Pauri Camp Dehradun. Notices were issued to the respondents fixing 22-9-2003 and in the mean time, interim order was passed suspending the effect of order dated 7-6-2003. According to the petitioner, copy of stay order was not filed before Tehsildar. The Tehsildar in compliance of remand order passed by Assistant Collector concerned, proceeded further in the matter. He rejected the application under Section 5 of the Limitation Act and rejected the application of the respondent no. 3 for recalling the order dated 2-8-2003 vide order dated 2-8-2003. Parwana mutation was issued by the Tehsildar vide 4 order dated 2-8-2003 and the name of the petitioner was mutated in place of respondent no. 3. The respondent no. 3 then moved an application on 29- 10-2003 in revision no. 44 of 2002-2003 before the commissioner Garhwal Division with the prayer that the order of Tehsildar dated 2- 8-2003 be declared null and void and the mutation of the petitioner be cancelled. According to the petitioner, the Commissioner concerned without serving the copy of the application upon the petition and without affording any opportunity to file objection passed ex parte order allowing the application vide his order dated 29-10-2003. The petitioner having been aggrieved by the ex parte order dated 29-10-2003, filed Revision No. 03 of 2003-2004 before the Chief Revenue Commissioner. The revision too was dismissed by the learned Additional Chief Revenue Commissioner by the impugned order dated 19-5-2006, which is under challenge in the present writ petition. The main ground of challenge taken by the petitioner is that the order dated 29-10-2003 passed by the Commissioner cannot be sustained in the eye of law because no opportunity was given to the petitioner before passing the order and the order dated 19-5-2006 is arbitrary, illegal being based on surmises and assumption. Counter affidavit has been filed by respondent no. 3 Rajendra Singh. It has been asserted in paragraph no. 2 of the counter affidavit that the writ petition has arisen out of mutation proceedings under Section 34 of the Land Revenue Act and the mutation proceedings are summary proceedings which do not decide the title. Therefore, writ petition does not lie and proper recourse available to the petitioner was title suit under Section 229 B of the U.P. Zamindari Abolition and Land Reforms Act. It is also asserted that the petitioner had not filed the alleged will of the deponent’s father Kabulla which has been claimed by the petitioner. 5 It is denied in the counter affidavit that the respondent no. 3 had strained relations with his father rather the relations were cordial between them. It is also denied that the father of the respondent no. 3 had ever intended to give any share to the petitioner in his property. Contents of para no. 5 of the writ petition has been denied. It has been stated that the contents of paragraph 6 are emphatically denied as the contention of the petitioner falls on the face because he had never produced the alleged will before any of the courts below, on the basis of which claim was made by the petitioner. The respondent no. 3 has specifically denied the allegation that notices were served on him and his brother, respondent no. 2 of the application moved by the petitioner for mutation of his name on the basis of will. It is further denied that the deponent and his brother had any knowledge of the mutation proceedings before the Tehsildar concerned on the behest of the petitioner. It is further asserted that the respondent no. 3 is not aware of any suit or proceedings initiated by the petitioner for cancellation of the alleged sale deeds made by respondent no. 3. It is further asserted that the respondent no. 3 moved restoration application promptly as soon as he came to know of the alleged mutation in the name of the petitioner. In paragraph no. 17 of the counter affidavit which is in reply of the contents of para nos. 19, 20 and 21 of the writ petition, it is asserted that the Tehsildar concerned was made aware of the stay order passed by the Commissioner, but the Tehsildar still proceeded in the matter. Rejoinder affidavit has been filed by the petitioner. The facts already mentioned in the petition have been reiterated in the rejoinder affidavit. I have heard learned counsel for the parties and perused the record. 6 The learned counsel for the petitioner has vehemently argued that the order dated 29-10-2003 was passed by respondent no. 2 without service upon the petitioner, therefore, there was no opportunity of hearing to the petitioner in the matter and the order dated 29-10- 2003 is liable to be quashed outright. On the other hand, learned counsel for the respondent no. 3 has submitted that the order dated 2-8-2003 was passed by the Tehsildar Laksar in Case No. 20 of 1994 despite the knowledge of stay order dated 23-7-2003 passed by the revisional court, therefore, in view of the provisions of Section 144 of the C.P.C. which have been made applicable under the Land Revenue Act, there is no need to afford opportunity to the other party to restitute the order passed by revisional court. The order of restitution has to be made on the simple application moved by the party concerned, i.e. respondent no. 3. At the very outset it may be mentioned that the procedure in respect of the proceedings under the Land Revenue Act is provided in the U.P. Revenue Court Manual and in Appendix I it is provided that provisions of the C.P.C. have been made applicable to proceeding under the U.P. Land Revenue Act (for short the Act). It is obvious from a bare perusal of Appendix I that provisions of Section 144 of the C.P.C. have been made applicable to the proceedings under the Act. Section 144 of the C.P.C. reads as under :- “144. Application for restitution – (1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified and, for this purpose, the Court may 7 make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order. Explanation- For the purposes of sub-section (1), the expression “Court which passed the decree or order” shall be deemed to include,- (a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance; (b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order; © where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit. (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).” The State amendment in sub-section (1) reads as under:- “(1) Where and in so far as a decree or an order is varied or reversed in appeal, revision or otherwise, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made, as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such order or such part thereof as has been varied or reversed; and for this purpose, the Court may make any orders, including orders for the refund of the costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.” 8 From a complete reading of the order dated 29-10-2003 passed by the Commissioner Garhwal Division in Revision No. 44/2002-03, it comes out that the learned Commissioner has found that the copy of the stay order dated 23-7-2003 was not only made available to the Assistant Collector but the copy of the order was filed before the Tehsildar and an application was also moved to that effect on 28-7-2003. It has also been found by the revisional court that the appellate court was fully aware of the stay order passed by the revisional court. Taking into consideration the provisions of Section 144 C.P.C. as amended in the State of U.P., which is made applicable to the Rules under the Revenue Court Manual, in my view, it was not at all imperative upon the revisional court to have heard the petitioner just for the purpose of restitution of its earlier order dated 23-7-2003. The argument of the learned counsel for the petitioner cannot be accepted that the impugned order is against the principles of natural justice. From a perusal of the order dated 23-7-2003, the operation of the order dated 7-6-2003 passed by the appellate Court (Assistant Collector, Roorkee) in Appeal No. 03 of 2002-2003 was stayed. Respondent no.3 Rejendra Singh had filed an affidavit on 29- 10-2003 before the Commissioner in Revision wherein it was categorically stated that the copy of stay order dated 23.7.2003 was filed in the court of Assistant Collector on 25-7-2003. The Assistant Collector, in turn, made an endorsement to the Tehsildar for necessary action. It was further stated in the affidavit that despite the receipt of order dated 23-7-2003, the Tehsildar passed the order dated 2-8-2003. Having heard learned counsel for the parties and having perused the entire material on record, I am of the view that the order dated 29-10-2003 does not suffer from any perversity. Admittedly, the order dated 7-6-2003 passed by the Assistant Collector, 1st Class, Roorkee, in Appeal No. 03 of 2002-2003 Manoj Vs. Rajendra Singh, is under challenge in revision under Section 219 of the Land Revenue Act and an interim order dated 23-7-2003 is operative in revision. The 9 fate of the Revision No. 44 of 2002-2003 Rajendra Singh Vs. Manoj Kumar and others is yet to be decided on merits by the revisional court. Unless the revision is decided on merits, the interim order passed in a particular case cannot be treated to be a final order, therefore, in order to avoid multiplicity of proceedings, it would be expedient in the interest of justice to direct the revisional court to decide the revision merits within a time bound period. In the result, the writ petition fails. The writ petition is dismissed. Costs easy. However, the learned Commissioner Garhwal Division is directed to decide the revision No. 44 of 2002-2003 on merits expeditiously, preferably within a period of two months from the date of production of certified copy of this order. Interim dated 6-6-2006 is vacated. (B.S. Verma, J.) RCP