# Jagbhan Singh & Anr v. Board of Revenue & Ors

- **Citation:** (2020) 1 ILRA 637
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-06
- **Case number:** Writ C No. 28202 of 2019
- **Bench:** Anjani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagbhan-singh-anr-v-board-of-revenue-ors-45695
- **Pages:** 6

## Headnote

A. U.P. Revenue Code, 2006 - Section 116
- suit for partition - Section 134 - suit for
eviction - petitioners' dispossessed from
land in their possession, in the garb of
execution of a final decree for partition,
to which, they were not parties - the Sub
Divisional Magistrate is not empowered
to issue a direction for the execution of a
partition decree, on the administrative
side - SDM has by an administrative
order, tried to decided an eviction suit
under section 134 of the Revenue Code,
2006 - exparte order passed without
638 INDIAN LAW REPORTS ALLAHABAD SERIES
hearing the petitioners and also without
considering the report of the Revenue
Inspector - impugned order passed is
illegal and arbitrary. (Para 4, 19, 24 & 25)

The Sub Divisional Magistrate, has manifestly
misused his position to provide undue benefit
to the plaintiff by ignoring material before him
which showed that third parties were in
possession, directed execution of a partition
decree on the administrative side, in the
process evicting occupants of land who were
not parties in the partition suit and against who
existed no eviction decree. (Para 26)

Held:- The administrative authorities cannot,
in the garb of executing a decree for partition,
resort to execution proceedings on the
administrative side and in the process evict a
person in possession, who is not a party in the
partition suit nor is a party to the decree,
allegedly being executed. (Para 25)

Writ Petition allowed. (E-7)

## Text

1 All. Jagbhan Singh & Anr. Board of Revenue & Ors.
637
University, in light of this judgment and as
per law.

V. The reform, self development
and rehabilitation programmes shall be
processed as per law, and integrated into
the existing legal/statutory framework of
the
University
dealing
with
deviant
conduct and punishments.

VI. The petitioner shall be given
the benefit of the reform, self development
and rehabilitation programme. After the
creation of the reform, self development
and
rehabilitation
programme,
the
petitioner shall be reinstated as a student
and permitted to continue the Ph.D. course
or any other course along with the said
programme.

VII. Attendance of the petitioner
in
the
said
programme
shall
be
compulsory. An evaluation sheet of the
petitioner's performance in the programme
shall also be prepared.

VIII. It shall be open to the BHU
to impose necessary restraints, as it deems
fit, upon the petitioner even as he pursues
his academic course along with the reform,
self
development
and
rehabilitation
programme. These restraints may include a
campus entry ban upon the petitioner, if
the University deems it necessary.

IX.
The
exercise
shall
be
completed, preferably, within six months,
but not later than 12 months. At all times
the respondents, keeping in mind the best
interests of the students and the society,
shall make all efforts to expedite the
compliance of the directions.

X. It shall be open to the
respondents to create a scheme for reform,
self development and rehabilitation for
convicts in criminal cases who wish to
pursue further higher studies in the
respondent University.

XI.
The
counsels
for
the
respondents shall provide certified copy of
this judgment to the Vice Chancellor,
Banaras
Hindu
University,
Varanasi
(respondent no. 2 herein), the Secretary,
Ministry
of
Human
Resource
Development, Union of India, New Delhi
(respondent
no.1
herein)
and
the
Chairman, University Grants Commission,
New Delhi (respondent no. 6 herein), for
necessary compliances.

236. The writ petition is allowed to
the extent and manner indicated above.
----------
(2020)1ILR 637

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2020

BEFORE
THE HON'BLE ANJANI KUMAR MISHRA, J.

Writ C No. 28202 of 2019

Jagbhan Singh & Anr. ...Petitioners
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioners:
Sri Deepak Kumar Jaiswal, Sri Prem Singh

Counsel for the Respondents:
C.S.C., Sri Manvendra Nath Singh, Sri R.C.
Singh, Sri Rajesh Kumar, Sri Anurag
Prasad

A. U.P. Revenue Code, 2006 - Section 116
- suit for partition - Section 134 - suit for
eviction - petitioners' dispossessed from
land in their possession, in the garb of
execution of a final decree for partition,
to which, they were not parties - the Sub
Divisional Magistrate is not empowered
to issue a direction for the execution of a
partition decree, on the administrative
side - SDM has by an administrative
order, tried to decided an eviction suit
under section 134 of the Revenue Code,
2006 - exparte order passed without
638 INDIAN LAW REPORTS ALLAHABAD SERIES
hearing the petitioners and also without
considering the report of the Revenue
Inspector - impugned order passed is
illegal and arbitrary. (Para 4, 19, 24 & 25)

The Sub Divisional Magistrate, has manifestly
misused his position to provide undue benefit
to the plaintiff by ignoring material before him
which showed that third parties were in
possession, directed execution of a partition
decree on the administrative side, in the
process evicting occupants of land who were
not parties in the partition suit and against who
existed no eviction decree. (Para 26)

Held:- The administrative authorities cannot,
in the garb of executing a decree for partition,
resort to execution proceedings on the
administrative side and in the process evict a
person in possession, who is not a party in the
partition suit nor is a party to the decree,
allegedly being executed. (Para 25)

Writ Petition allowed. (E-7)

(Delivered by Hon'ble Anjani Kumar
Mishra, J.)

1. Heard learned counsel for the
petitioner and Shri R.C. Singh, learned Senior
Advocate for the respondent no.6 and learned
Standing counsel for the State-respondents.

2. The writ petition arises out of a
suit for partition under Section 116 of the
U.P. Revenue Code, 2006 and seeks a writ
of certiorari for quashing order dated
10.08.2019 (Annexure No.14) passed by
the Sub Divisional Magistrate, Mau
Chitrakoot, respondent no.2.

3. The second prayer made is for
expeditious disposal of a revision filed by the
opposite party, respondent no.6, which is
directed against an order passed by the
Commissioner, whereby the petitioners were
directed to be impleaded in the suit for
partition.

4. Primarily, grievance of the
petitioners'
is
that
they
have
been
dispossessed from land in their possession,
in the garb of execution of a final decree
for partition, to which, they were not
parties.

5. On the petition coming up for
admission, the following order was passed
on 29.04.2019 -

"Prima facie it appears that a
final decree in a suit for partition has been
executed on the administrative side by the
SDM with the use of police force.

This action is sought to be
justified by counsel appearing for the
respondent on the ground that the
proceeding for implementation of the final
decree
in
the
suit,
was
judicial
proceedings.

He has referred to the second
paragraph on page 84 of the paper book, the
second page of the impugned order, wherein
reference has been made to evidence, and
objections available on record.

The
SDM,
Mau,
District
Chitrakoot is directed to transmit the
record relied upon by him while passing
the impugned order dated 10.08.2019 to
this Court, forthwith.

Put up this case in the additional
cause list on 15.10.2019 by which time
learned Standing Counsel shall also
ensure that the relevant record is available
for perusal of this Court."

6. Subsequently, the matter has been
heard and is being decided finally.

7. The contention of counsel for the
petitioner is that the impugned order dated
10.08.2019 has been passed on the
administrative side and not in proceedings
for execution of final partition decree. The
1 All. Jagbhan Singh & Anr. Board of Revenue & Ors.
639
order and action consequent thereto, is
without
jurisdiction,
even
though
it
purports
have
been
been
taken
in
compliance
of
directions
issued
on
11.04.2019 in Writ Petition No.12130 of
2019.

8. It is submitted that the impugned order
could not have been passed because in the
partition suit, the petitioner had filed an
impleadment application. The impleadment
application was rejected by the trial Court.
However, in appeal, the same was allowed.
The respondent no.6 challenged the appellate
order before the Board of Revenue in Revision
No.1077 of 2018, Smt.Geeta Singh Vs. Udai
Bhan Singh and others, wherein the order
passed by the Commissioner has been stayed.
This stay would not amount to rejection of the
petitioner's impleadment application. Prima
facie, therefore, the petitioner has interest in the
land subject matter of the partition suit but
ignoring the same, the partition decree has
been executed on the administrative side. The
order passed by the respondent no.2 is not only
illegal, it also clearly malafide and abuse of the
process of law.

9. Shri R.C. Singh, learned Senior
Advocate appearing for the respondent
nos. 3 and 6 on the basis of the date chart
filed by him, submitted that the petitioners
have no interest in the property in
question. Only an illegal entry, under
Class 9, had been obtained. Therefore, a
suit under Section 229B of the U.P.
Zamindari Abolition and Land Reforms
Act, filed by Bhuriya Singh was decreed
and the Class 9 entry in favour of Bhikham
Singh was expunged. Bhikham Singh nor
his sons, the petitioners, were ever in
possession over the land in question.

10. Bhuriya Singh, who filed the
declaratory suit for expunging the Class 9
entry, was succeeded by respondent no.3,
Dev Narayan Singh, who in turn, was
succeeded by his sons Raja Gulab Singh,
Chhote Lal and his widow Prema Devi. Prema
Devi executed a sale deed of her share in
favour of respondent no.6. The respondent
no.6 thereafter filed the suit for partition,
wherein the final decree was passed and the
same has rightly been executed on the spot.
The petitioners have no right, title or interest in
the land in question. Neither they are in
possession thereon.

11. It is also contended that upon the
order of the writ Petition No.12130 of
2019 dated 11.04.2019 being filed before
the Sub Divisional Magistrate, respondent
no.2, notices were issued to the petitioners
and after considering their objections, the
impugned order dated 10.08.2019 has
rightly been passed. The writ petition is
therefore, liable to be dismissed.

12.

I
have
considered
the
submissions made by learned counsel for
the parties and perused the record as also
the original record produced by learned
Standing Counsel.

13. The original record produced is
in three compilations -

(i) Record of Suit No.09 of 2018
under Section 116 of the U.P. Revenue
Code, 2006.

(ii) Record which contains no
Case number and only mentions Misilband
No.22.

(iii) Record of Revision No.2912
of 2018 under Section 207 of U.P.
Revenue Code, 2006, pending before the
Board of Revenue.

14. The third compilation is the one
required to be looked into. However, I do
640 INDIAN LAW REPORTS ALLAHABAD SERIES
not find copy of the order impugned in this
writ petition, on the record of the trial
Court of partition suit No.9 of 2018. This
is the first compilation is only upto
preparation of the final decree and a
parwana amaldaramad being issued for
incorporation of the same in the revenue
records. The Parwana Amaldaramad has
been issued on 22.09.2018.

15. Although, it is sought to be
contended that the order impugned has
been passed in execution of the final
decree for partition, no record of any
execution
case
has
been
produced,
although, learned Standing Counsel had
been directed to produce such record, as
also the material, on the basis whereof, the
impugned order had been passed. Non
production of this record clearly supports
the contention of the petitioners that the
impugned order has been passed on the
administrative side.

16. The second and relevant
compilation contains copy of the letter,
which is impugned in this writ petition.
This file contains two copies of this order /
letter dated 14 August 2019. The first copy
available on the file, does not bear any
date below the signature. The second copy
bears the date 10.08.2019 below the
signature The certified copy annexed
along with the writ petition is a copy of
this second document, but is manifestly,
incomplete. One whole page of the same
appears to be missing. The other copy
contains the part which is manifestly
missing in the certified copy, noticed
above. This copy bears no date on which it
was signed.

17. Annexure 14 to the writ petition
which is impugned, bears letter No.2250 /
ST/Mau.
Subject
of
this
letter
is
implementation of the order passed in Writ
Petition
No.12130
of
2019
dated
11.04.2019. The order dated 11.04.2019
was that the final decree in the suit for
partition be implemented on the spot, in
case, there was no legal impediment to
such implementation.

18. The objections that had been
raised by the petitioners as regard the legal
impediments, find mention in this letter.

19. Despite the order passed by the
writ Court on 11.04.2019, the Sub
Divisional Magistrate is not empowered to
issue a direction for the execution of a
partition decree, on the administrative
side. There is no mention of any execution
case in the impugned letter/order. It also
does not bear any case number and as
noticed above, is merely a letter directing
compliance of directions issued in Writ
Petition No.12130 of 2019, vide order
dated 11.04.2019. The subject of this letter
is not execution of the final partition
decree.

20. On the top, the letter/ order
impugned is mentioned the date August
14, 2019. This document bears the
signature of the Sub Divisional Magistrate
and below is a date has been transcribed in
the same ink and hand writing which reads
10.08.2019. This is not possible. A letter
prepared / typed on August 14, 2019 could
not have been signed four days prior to its
preparation.

21. In pursuance of this letter, the
partition decree has been executed on the
spot with the help of police force, on
2.9.2019.

22. On the same file, there is a report
by the Lekhpal dated 27.06.2019, duly
1 All. Jagbhan Singh & Anr. Board of Revenue & Ors.
641
forwarded by the Revenue Inspector,
wherein
it
has
been
categorically
mentioned that Udai Bhan Singh, Jag
Bhan Singh and Prem Bhan Singh sons of
Bhisham Singh
are
in
unauthorized
occupation over plot no.1268M area 0.100
hectare. They have planted trees and
constructed a well. They claim to be in
possession for the last 40 years and that a
suit for their dispossession under Section
134 of the U.P. Revenue Code, 2006 is
pending consideration before the Sub
Divisional
Magistrate,
Mau,
District
Chitrakoot.

23. Once, there was material on
record to show that a case under Section
134 of the U.P. Revenue Code, 2006 was
pending against the petitioners, there was
no justification for forcibly dispossessing
them, in execution of a decree for
partition, to which, the unauthorized
occupants were admittedly, not parties.

24. In any case, the impugned order /
letter dated 10.08.2019 cannot be a judicial
order because it does not refer to any case
number or the details of the parties. Even
otherwise, the impugned letter/order dated
10.08.2019 has not been passed after
hearing the parties. It, at best, considers
the objection that was filed by the
petitioners, but in my considered opinion,
this is not enough. This order is manifestly
exparte, passed without hearing the
petitioners and also without considering
the report of the Revenue Inspector
referred to above. The letter/order is
therefore, illegal and also arbitrary and
therefore cannot be sustained.

25. The administrative authorities
cannot, in the garb of executing a decree
for
partition,
resort
to
execution
proceedings on the administrative side and
in the process evict a person in possession,
who is not a party in the partition suit nor
is a party to the decree, allegedly being
executed. For the same reason, the
impugned order and the consequential
action in pursuance thereof, cannot be
sustained.
The
SDM
has
by
an
administrative order, tried to decided an
eviction suit under section 134 of the
Revenue Code, 2006.

26. The Sub Divisional Magistrate, Mr.
Ramesh Yadav, has manifestly misused his
position to provide undue benefit to the
plaintiff by ignoring material before him
which showed that third parties were in
possession, directed execution of a partition
decree on the administrative side, in the
process evicting occupants of land who were
not parties in the partition suit and against
who existed no eviction decree. That is why
police force was directed to be used. In
normal
circumstances,
execution
of
a
partition decree, does not require police force,
unless demanded by the Amin, who has to
execute the decree. Even the memo prepared
at the time of execution states that the
encroachers were not present on the spot
when the decree was being executed. Besides,
the plaintiff, below her signature has recorded
that items and a vehicle (gaddi) lying over the
land given in her possession, be removed.

27. The writ petition is accordingly
allowed. The impugned letter/ order dated
10.08.2019 (Annexure 14) is hereby quashed.
The Sub Divisional Magistrate, Mau, District
Chitrakoot, respondent no.2 is directed to
ensure that status-quo ante as existing on the
date the order dated 10.08.2019 was passed by
him, is restored, forthwith.

28. For his illegal conduct and
actions, geared to providing undue benefit
to respondent no:6, Ramesh Yadav, SDM,
642 INDIAN LAW REPORTS ALLAHABAD SERIES
Mau, District Chitrakoot is liable to costs
of Rs.25,000/- to be deposited by him
within a month, failing which, the same
shall be deducted from his salary/ and or
recovered as arrears of land revenue.

29. Moreover, an entry shall be made
in his service record that he has been
found by this Court to be guilty of acting
beyond jurisdiction with a view to favour a
private party and to provide her possession
over land by forcibly dispossessing its
occupants, in the garb of executing a
partition decree especially when there was
no decree for dispossession against the
occupants nor they were parties to the
partition decree and for this purpose
having passed and signed an order on
10.08.2019
which
had
been
dated
14.08.2019, at its top. This was done by
him on the administrative side, having
signed the order / letter impugned in this
petition as Sub Divisional Magistrate and
not
as
Sub
Divisional
Officer,
a
designation to be used when discharging,
judicial functions.

30. The original records produced by
Learned Standing Counsel be returned
back to him, forthwith.
----------
(2020)1ILR 642

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2019

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Matters Under Article 227 No. 9606 of 2019
(Criminal)

Smt. Lalita Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Ajay Sengar

Counsel for the Respondents:
C.S.C.

A. Criminal Procedure Code, 1973 -
Section 145 (1) - 'stating the grounds of
his being so satisfied' - Magistrate gets
jurisdiction to initiate proceedings and
pass a preliminary order u/s 145 of the
Code - only on being satisfied that - there
is a real dispute existing - concerning the
possession of immovable property - and
that such dispute is likely to cause breach
of peace - This satisfaction Magistrate
may get from - report of the police officer
or upon other information - Magistrate
shall make an order in writing, stating
the
grounds
of
his
satisfaction
is
mandatory . (Para 10)

Held - City Magistrate neither called for any
police report regarding spot inspection of the
plot in dispute nor obtained other information
as required under u/s 145 Cr.P.C - City
Magistrate on the basis of presumption illegally
rejected the claim of the applicant that she is in
possession over the plot in dispute. (Para 11)

Matter Under Article 227 allowed. (E-5)

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Ajay Sengar, learned
counsel for the petitioner and learned
A.G.A. for the State.

2. The present petition under Article
227 of the Constitution of India has been
filed to quash the order dated 1st April,
2019 passed by the City Magistrate,
Paragana-Orai, Jalaun at Orai in Case No.
02 of 2018 (Smt. Lalita Devi Vs. Veni
Madhav & Others), under Section 145
Cr.P.C., Kotwali-Orai, District-Jalaun as
well as the order dated 13th September,
2019 passed by the Additional Sessions