High Court · 2025

3. The lis between the parties relates to khata no. 91 of village Karmajeetpur, Pargana Dehat Amanat, Tehsil and District Varanasi which stood recorded in the name of Beerbal @ Ramesh Chandra s/o Jawahar.

4. It is the case of the petitioners that the contesting respondents 6 to 8 by playing fraud upon the revenue authorities by stating that Beerbal, the recorded tenure holder, having died and claiming themselves to be his daughters whereas infact they were his married sisters obtained an order dated 15.03.2014 in Case No. 1391 of 2014 under Section 34 of the U.P. L.R. Act mutating their names in his place. The respondent no. 8 made an application for issuance of a death certificate in respect of Beerbal. An inquiry was conducted by the Municipal Corporation, Varanasi as also the S.S.P. Varanasi and a report dated 05.12.2014 was submitted stating that there was no evidence of death of Beerbal. On the detection of the fraud played, the Tehsildar (Judicial), Sadar Varanasi vide order dated 02.05.2014 set aside the order dated

15.03.2014 mutating the names of the respondents no. 6 to 8 and dismissed the mutation application. The order dated 02.05.2014 was assailed by the respondent no. 6 to 8 before the Additional Commissioner (Administration) in revision under Section 219 of the L.R. Act, 1901. The revision was dismissed by a detailed order dated 05.08.2015. The respondents no. 6 to 8 further challenged the order dated 05.08.2015 in revision before the Board of Revenue whcih too dismissed the revision vide order dated

19.09.2016. The respondents no. 6 to 8 then approached this Court by means of writ petition no. 48385 of 2016. The writ petition was decided vide order dated 05.10.2016 relegating the respondent no. 6 to 8 (petitioners in the writ petition) to the alternative remedy of filing a suit in view of Section 40-A of the U.P. Land Revenue Act, 1901 and directing that no third party rights shall be created over the land in dispute for a period of three months. It is contended that the respondent no. 6 to 8 instead of filing a suit in collusion with the Lekhpal concerned again got their names mutated in the revenue records vide order dated 16.05.2017. The order dated

16.05.2017 was challenged by the petitioners before this Court by filing Writ C No. 45527 of 2017. The writ petition was disposed of vide order dated 22.09.2017 giving liberty to the petitioners herein to file an application under Section 38 of the U.P. Revenue Code, 2006 before the appropriate authority within 15 days who was directed to pass final orders within three months. The respondent no. 6 to 8 were restrained from transferring the disputed land and status quo was directed to be maintained for a period of four months. It is also submitted that this Court while passing the order dated 22.09.2017 observed that the entry of names of the respondent no. 6 to 8 was unauthorised and such fictitious entry could be corrected under Section 38 of the U.P. Revenue Code,

5. It is next contended by learned counsel for the petitioners that they preferred an application under Section 38 of the Revenue Code, 2006 as directed before the respondent no. 3, the learned SDM, (sadar), Varanasi. The S.D.M., however, on grounds untenable in law declined to set aside the order dated 16.05.2017 mutating the names of the respondents no. 6 to 8 vide order dated

23.02.2019. The writ petitioners assailed the order dated

23.02.2019 by means of Writ-C No. 23719 of 2019. The writ petition was, however, disposed of by relegating the petitioners to file an appeal under Section 35(2) of the U.P. Revenue Code, 2006. The petitioners filed appeal before the SDM, Sadar Varanasi. The SDM dismissed the appeal vide order dated 12.04.2022. The petitioners thereafter assailed the order dated 12.04.2022 in revision no. 872 of 2022 before the Board of Revenue. The Board of Revenue committing the same mistake dismissed the revision filed by the petitioner vide order dated 17.01.2024.

6. It has been vehemently submitted by learned counsel for the petitioners that the fraud played by the respondents no. 6 to 8 was apparent as noticed by this Court under its order dated 22.09.2017 passed in Writ Petition No. 45527 of 2017, yet the order dated

16.05.2017 passed by the Revenue Inspector under P.A.-11 mutating the names of the respondents no. 6 to 8 was not set aside by the Lekhpal who was in collusion with the respondents no. 6 to

8. It was established on record that Beerbal @ Ramesh Chandra was very much alive as the respondents no. 6 to 8 had themselves moved an application in O.S. No. 562 of 2003 stated to be pending before the Additional Civil Judge (Jr. Div.), Court No. 5, Varanasi admitting the fact that the whereabouts of Beerbal @ Ramesh Chandra was not known since 12.01.2000 and civil death be presumed. It is contended that till a competent court does not declare civil death, it could not be presumed that Beerbal @ Ramesh Chandra had died and till then, the respondent no. 6 and 8 could not claim to be heirs of the deceased Beerbal. It is accordingly prayed that the writ petition deserves to be allowed.

7. Per contra, Sri Ashish Kumar Singh, learned counsel representing the contesting respondents no. 6 to 8 submits that the impugned orders are just and proper and require no interference by this Court. The Revenue Authorities under the impugned orders have accorded adequate reasons for arriving at findings in favour of the answering respondents 6 to 8 and such findings are not liable to be disturbed. The petitioners have utterly failed to show how they have any right, title or interest in the khata in question and how they are entitled to it in contrast to the answering respondents. Beerbal @ Ramesh Chandra expired on 15.07.2012 and certificate to that effect was issued by the competent authority which has not been challenged. The orders impugned are liable to be upheld and the writ petition liable to be dismissed with costs.

8. In the light of the above facts, this Court proceeds to test the impugned orders and decide the lis between the parties.

9. I have heard the learned counsel for the parties and have perused the records. From the perusal of the records, it is borne out that Beerbal @ Ramesh Chandra s/o Jawahar was the recorded Bhumidhar of the disputed khata no. 91. The writ petitioners are the cousin brother and sons of the cousin brother of Beerbal @ Ramesh Chandra while the contesting respondents are the real sisters of Beerbal @ Ramesh Chandra. The petitioners and the contesting respondents no. 6 to 8 have set up their respective claims of succession over the khata no. 91. The parties are at variance about the factum of death of Beerbal @ Ramesh Chandra. According to the petitioners, Beerbal @ Ramesh Chandra did not die, however, he has gone missing and civil death can be presumed only after seeking a declaration to that effect. The contesting respondents have established that Beerbal @ Ramesh Chandra expired on 15.07.2012 and obtained a death certificate from the competent authority. The Board of Revenue in the impugned order dated 17.01.2024 has accepted the death certificate of Beerbal @ Ramesh Chandra issued by the competent authority observing that the burden lay upon the petitioners to prove the factum that Beerbal @ Ramesh Chandra was alive and no declaration was required once certificate had been issued by the competent authority.

10. Assuming that Beerbal @ Ramesh Chandra expired on

15.07.2012, the respective rights of the parties in the opinion of the Court would flow from Section 108 of the U.P. Revenue Code, 2006 which relates to the general order of succession to male bhumidhars, Asami or government lessee. As noted above, the petitioners are the cousin brothers and sons of the cousin brother of Beerbal @ Ramesh Chandra while the answering respondents no. 6 to 8 are the married sisters of Beerbal @ Ramesh Chandra. They are certainly not the married daughters of Beerbal @ Ramesh Chandra. A perusal of the provision of Section 108(2) of the U.P. Revenue Code, 2006 reveals that the brother and unmarried sisters being respectively the son and the daughter of the same father as the deceased and son of a predeceased brother, the predeceased brother having been the son of the same father as the deceased is placed higher than married sister in the line of succession and in such view of the matter, the petitioners would have a claim over the estate of Beerbal @ Ramesh Chandra and not the answering respondents no. 6 to 8.

11. The succession to land before 1950 was governed by personal laws and by the U.P. Tenancy Act, 1939, when the U.P. Z.A.&L.R. Act came into operation in 1950, it abolished the personal laws of the tenants for the purposes of land laws. The tenancy came to be devolved under Section 169 to 175 of the U.P. Z.A.&L.R. Act. All succession to agricultural land is governed by the U.P. Z.A.&L.R. Act and all other properties is governed by personal law and other prevailing laws at the time. However, with the coming into force of the U.P. Revenue Code, 2006 and abolition of the U.P. Z.A.&L.R. Act, the law for succession of agricultural land has been retained as it was in the U.P. Z.A.&L.R. Act, 1950 and would be governed by Sections 108 to 114 of the U.P. Revenue Code,

12. In view of the above, the answering respondents 6 to 8 being the married sisters of late Beerbal @ Ramesh Chandra were not entitled to inherit the estate of the deceased Beerbal @ Ramesh Chandra. The orders dated 16.05.2017 passed by the respondent no. 5, the order dated 23.02.2019 passed by the respondent no. 3, the order dated 12.04.2022 passed by the respondent no. 2 as also the order dated 17.01.2024 passed by the respondent no. 1 upholding the claim of the respondents no. 6 to 8 cannot be sustained and are accordingly set aside.

13. The writ petition stands allowed. Consequence to follow.

14. No order as to costs. Order Date :- 6.3.2025 Anjali ANJALI SHARMA High Court of Judicature at Allahabad

3. The lis between the parties relates to khata no. 91 of village Karmajeetpur, Pargana Dehat Amanat, Tehsil and District Varanasi which stood recorded in the name of Beerbal @ Ramesh Chandra s/o Jawahar.

4. It is the case of the petitioners that the contesting respondents 6 to 8 by playing fraud upon the revenue authorities by stating that Beerbal, the recorded tenure holder, having died and claiming themselves to be his daughters whereas infact they were his married sisters obtained an order dated 15.03.2014 in Case No. 1391 of 2014 under Section 34 of the U.P. L.R. Act mutating their names in his place. The respondent no. 8 made an application for issuance of a death certificate in respect of Beerbal. An inquiry was conducted by the Municipal Corporation, Varanasi as also the S.S.P. Varanasi and a report dated 05.12.2014 was submitted stating that there was no evidence of death of Beerbal. On the detection of the fraud played, the Tehsildar (Judicial), Sadar Varanasi vide order dated 02.05.2014 set aside the order dated

15.03.2014 mutating the names of the respondents no. 6 to 8 and dismissed the mutation application. The order dated 02.05.2014 was assailed by the respondent no. 6 to 8 before the Additional Commissioner (Administration) in revision under Section 219 of the L.R. Act, 1901. The revision was dismissed by a detailed order dated 05.08.2015. The respondents no. 6 to 8 further challenged the order dated 05.08.2015 in revision before the Board of Revenue whcih too dismissed the revision vide order dated

19.09.2016. The respondents no. 6 to 8 then approached this Court by means of writ petition no. 48385 of 2016. The writ petition was decided vide order dated 05.10.2016 relegating the respondent no. 6 to 8 (petitioners in the writ petition) to the alternative remedy of filing a suit in view of Section 40-A of the U.P. Land Revenue Act, 1901 and directing that no third party rights shall be created over the land in dispute for a period of three months. It is contended that the respondent no. 6 to 8 instead of filing a suit in collusion with the Lekhpal concerned again got their names mutated in the revenue records vide order dated 16.05.2017. The order dated

16.05.2017 was challenged by the petitioners before this Court by filing Writ C No. 45527 of 2017. The writ petition was disposed of vide order dated 22.09.2017 giving liberty to the petitioners herein to file an application under Section 38 of the U.P. Revenue Code, 2006 before the appropriate authority within 15 days who was directed to pass final orders within three months. The respondent no. 6 to 8 were restrained from transferring the disputed land and status quo was directed to be maintained for a period of four months. It is also submitted that this Court while passing the order dated 22.09.2017 observed that the entry of names of the respondent no. 6 to 8 was unauthorised and such fictitious entry could be corrected under Section 38 of the U.P. Revenue Code,

5. It is next contended by learned counsel for the petitioners that they preferred an application under Section 38 of the Revenue Code, 2006 as directed before the respondent no. 3, the learned SDM, (sadar), Varanasi. The S.D.M., however, on grounds untenable in law declined to set aside the order dated 16.05.2017 mutating the names of the respondents no. 6 to 8 vide order dated

23.02.2019. The writ petitioners assailed the order dated

23.02.2019 by means of Writ-C No. 23719 of 2019. The writ petition was, however, disposed of by relegating the petitioners to file an appeal under Section 35(2) of the U.P. Revenue Code, 2006. The petitioners filed appeal before the SDM, Sadar Varanasi. The SDM dismissed the appeal vide order dated 12.04.2022. The petitioners thereafter assailed the order dated 12.04.2022 in revision no. 872 of 2022 before the Board of Revenue. The Board of Revenue committing the same mistake dismissed the revision filed by the petitioner vide order dated 17.01.2024.

6. It has been vehemently submitted by learned counsel for the petitioners that the fraud played by the respondents no. 6 to 8 was apparent as noticed by this Court under its order dated 22.09.2017 passed in Writ Petition No. 45527 of 2017, yet the order dated

16.05.2017 passed by the Revenue Inspector under P.A.-11 mutating the names of the respondents no. 6 to 8 was not set aside by the Lekhpal who was in collusion with the respondents no. 6 to

8. It was established on record that Beerbal @ Ramesh Chandra was very much alive as the respondents no. 6 to 8 had themselves moved an application in O.S. No. 562 of 2003 stated to be pending before the Additional Civil Judge (Jr. Div.), Court No. 5, Varanasi admitting the fact that the whereabouts of Beerbal @ Ramesh Chandra was not known since 12.01.2000 and civil death be presumed. It is contended that till a competent court does not declare civil death, it could not be presumed that Beerbal @ Ramesh Chandra had died and till then, the respondent no. 6 and 8 could not claim to be heirs of the deceased Beerbal. It is accordingly prayed that the writ petition deserves to be allowed.

7. Per contra, Sri Ashish Kumar Singh, learned counsel representing the contesting respondents no. 6 to 8 submits that the impugned orders are just and proper and require no interference by this Court. The Revenue Authorities under the impugned orders have accorded adequate reasons for arriving at findings in favour of the answering respondents 6 to 8 and such findings are not liable to be disturbed. The petitioners have utterly failed to show how they have any right, title or interest in the khata in question and how they are entitled to it in contrast to the answering respondents. Beerbal @ Ramesh Chandra expired on 15.07.2012 and certificate to that effect was issued by the competent authority which has not been challenged. The orders impugned are liable to be upheld and the writ petition liable to be dismissed with costs.

8. In the light of the above facts, this Court proceeds to test the impugned orders and decide the lis between the parties.

9. I have heard the learned counsel for the parties and have perused the records. From the perusal of the records, it is borne out that Beerbal @ Ramesh Chandra s/o Jawahar was the recorded Bhumidhar of the disputed khata no. 91. The writ petitioners are the cousin brother and sons of the cousin brother of Beerbal @ Ramesh Chandra while the contesting respondents are the real sisters of Beerbal @ Ramesh Chandra. The petitioners and the contesting respondents no. 6 to 8 have set up their respective claims of succession over the khata no. 91. The parties are at variance about the factum of death of Beerbal @ Ramesh Chandra. According to the petitioners, Beerbal @ Ramesh Chandra did not die, however, he has gone missing and civil death can be presumed only after seeking a declaration to that effect. The contesting respondents have established that Beerbal @ Ramesh Chandra expired on 15.07.2012 and obtained a death certificate from the competent authority. The Board of Revenue in the impugned order dated 17.01.2024 has accepted the death certificate of Beerbal @ Ramesh Chandra issued by the competent authority observing that the burden lay upon the petitioners to prove the factum that Beerbal @ Ramesh Chandra was alive and no declaration was required once certificate had been issued by the competent authority.

10. Assuming that Beerbal @ Ramesh Chandra expired on

15.07.2012, the respective rights of the parties in the opinion of the Court would flow from Section 108 of the U.P. Revenue Code, 2006 which relates to the general order of succession to male bhumidhars, Asami or government lessee. As noted above, the petitioners are the cousin brothers and sons of the cousin brother of Beerbal @ Ramesh Chandra while the answering respondents no. 6 to 8 are the married sisters of Beerbal @ Ramesh Chandra. They are certainly not the married daughters of Beerbal @ Ramesh Chandra. A perusal of the provision of Section 108(2) of the U.P. Revenue Code, 2006 reveals that the brother and unmarried sisters being respectively the son and the daughter of the same father as the deceased and son of a predeceased brother, the predeceased brother having been the son of the same father as the deceased is placed higher than married sister in the line of succession and in such view of the matter, the petitioners would have a claim over the estate of Beerbal @ Ramesh Chandra and not the answering respondents no. 6 to 8.

11. The succession to land before 1950 was governed by personal laws and by the U.P. Tenancy Act, 1939, when the U.P. Z.A.&L.R. Act came into operation in 1950, it abolished the personal laws of the tenants for the purposes of land laws. The tenancy came to be devolved under Section 169 to 175 of the U.P. Z.A.&L.R. Act. All succession to agricultural land is governed by the U.P. Z.A.&L.R. Act and all other properties is governed by personal law and other prevailing laws at the time. However, with the coming into force of the U.P. Revenue Code, 2006 and abolition of the U.P. Z.A.&L.R. Act, the law for succession of agricultural land has been retained as it was in the U.P. Z.A.&L.R. Act, 1950 and would be governed by Sections 108 to 114 of the U.P. Revenue Code,

12. In view of the above, the answering respondents 6 to 8 being the married sisters of late Beerbal @ Ramesh Chandra were not entitled to inherit the estate of the deceased Beerbal @ Ramesh Chandra. The orders dated 16.05.2017 passed by the respondent no. 5, the order dated 23.02.2019 passed by the respondent no. 3, the order dated 12.04.2022 passed by the respondent no. 2 as also the order dated 17.01.2024 passed by the respondent no. 1 upholding the claim of the respondents no. 6 to 8 cannot be sustained and are accordingly set aside.

13. The writ petition stands allowed. Consequence to follow.

14. No order as to costs. Order Date :- 6.3.2025 Anjali ANJALI SHARMA High Court of Judicature at Allahabad