Allahabad High Court
Vijay Shankar vs Addl. Commissioner (Administration) ... on 9 February, 2015
Author: Sudhir Kumar Saxena
Bench: Sudhir Kumar Saxena
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR RESERVED Case :- MISC. SINGLE No. - 7719 of 2014 Petitioner :- Vijay Shankar Respondent :- Addl. Commissioner (Administration) Lucknow Division & Ors Counsel for Petitioner :- Vijay Kumar Pandey,R N Tilhari Counsel for Respondent :- C.S.C.,Dharmendra Kr. Mishra Hon'ble Sudhir Kumar Saxena,J.
1. Instant writ petition under Article 226 of the Constitution of India has been directed against the orders dated 14.03.2014, 28.07.2014 & 17.11.2014 passed by Naib Tehsildar, Sadar Unnao, Deputy Collector/Assistant Collector 1st Class Sadar Unnao and Additional Commissioner (Administration), Lucknow Division, Lucknow respectively declining the claim of the petitioner for mutation on the basis of an unregistered Will.
2. Shorn of details, necessary facts are that petitioner applied for mutation before the mutation court on 01.12.1995 in respect of plot no. 652/1.292 hectare village- Murtazanagar, Tehsil- Sadar Unnao on the ground that original tenure holder Smt. Chandan had executed the Will on 26.10.1995. Daughters of the deceased Smt. Chandan filed objection. Naib Tehsildar vide order dated 14.03.2014 rejected the claim of the petitioner doubting the genuineness of the Will and ordered the mutation in the name of Smt. Neelam, daughter of Ramawati on the basis of succession in accordance with Section 174 of the U.P.Z.A. & L.R. Act. An appeal was filed against the order dated 14.03.2014 passed by Naib Tehsildar, Sadar Unnao, which was dismissed by Assistant Collector on 28.07.2014. A revision was filed under Section 219 of the U.P. Land Revenue Act which too, was dismissed on 17.11.2014 by Additional Commissioner (Administration), Lucknow Division, Lucknow. These very orders have been challenged in this writ petition.
3. Courts have doubted the genuineness of the Will relying upon the following circumstances:
"a) Will was unregistered;
b) Will was allegedly typed or prepared at Kanpur on 26.10.1995, while the deceased and petitioner resided in district Unnao;
c) Smt. Chandan, who had executed the will died on 29.10.1995 in District Hospital, Unnao;
d) On the date of execution of the Will, she was admitted in district hospital, Unnao where she died on the third day;
e) There was no occasion to take deceased to Kanpur only for preparing the Will which could have been done at Unnao and could have been submitted for registration as well;
f) Will was not proved in accordance with law as no marginal witness was produced nor any scribe or typist was produced;
g) It had come in the evidence of Sri Vijay Shankar that after signing the Will, she started vomiting and her condition deteriorated and she was admitted in the hospital in the state of unconsciousness;
h) There is no mention of daughters in the Will, the only mention is that there is no other son;
i) Revisional court also mentioned that original Will was neither produced before civil court nor before revenue court, and;
j) In the civil court, case set up is that he was adopted by his grandmother, which was not found correct."
4. Submission of Sri Vijay Kumar Pandey, learned counsel for the petitioner is that son of marginal witness had been examined who proved the Will as such, findings of courts below that Will was not duly proved is not correct.
5. His further submission is that decision of Hon'ble the Apex Court relied upon by the courts below does not show that all the Wills executed within eight days of the death would have to be treated as suspicious one.
6. Circumstances mentioned by the courts below for dis-believing the Will cannot be said to be irrelevant or unfounded. Moreover, proceedings under Section 34 of the U.P.L.R. Act are summary in nature and they do not decide any matter finally. Rights in the land on the basis of Will can be established in regular revenue courts. This Court under Article 226 of the Constitution of India ordinarily does not interfere with the findings of the facts. In this case, court below have found that the Will does not appear to be genuine. This Court sees no good reason to interfere with the said finding.
7. It has been held in catena of decisions by this Court that proceedings under Section 34 of the U.P.L.R. Act are summary in nature and they do not confer any title finally as such writ petition against the orders passed in mutation proceedings is not maintainable.
8. In the case of Smt. Sawarni v. Inder Kaur & Ors. [1996 (6) SCC], Hon'ble Apex Court has held in para-7 as under:
"Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question."
9. Similar view has been taken in para-9 of the judgment in the case of Suraj Bhan & Ors. vs. Financial Commissioner & Ors. [(2007) 6 SCC 186]. Relevant extract of the judgment is being reproduced below:
"It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. It is settled law that entries in the revenue records or Jamabandi have only 'fiscal purpose' i.e. payment of land-revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent Civil Court."
10. A Division Bench of this Court consisting of Hon'ble O.H. Mootham, Chief Justice and Hon'ble M.L. Chaturvedi, JJ. in the case of Jaipal Minor vs. Board of Revenue, U.P., Allahabad [(1956) ALJ page 807] has held that no interference is to be made under Article 226 of the Constitution of India with the orders passed by Board of Revenue. Relevant extract of the judgment is being reproduced below:
"It has however been the consistent practice of this Court not to interfere with orders made by the Board of Revenue in cases in which the only question at issue is whether the name of the petitioner should be entered in the record of rights. That record is primarily maintained for revenue purposes and an entry therein has reference only to possession. Such an entry does not ordinarily confer upon the person in whose favour it is made any title to the property in question, and his right to establish his title thereto is expressly reserved by Section 40 (3) of the Act. The only exception to this general rule is in those cases in which the entry itself confers a title on the petitioner by virtue of the provisions of the U.P. Zamindari Abolition and Land Reforms Act."
11. Similar view has been taken by Hon'ble Ashok Bhushan, J. in the case of Madhav Pandey & Ors. vs. Board of Revenue, U.P., Lucknow & Ors. [2002 (20) LCD 1439. Relevant extracts of paras- 24 & 30 of the judgment is being reproduced below:
" 24. .........Furthermore, the present writ petition arises out of the summary proceedings under Section 34 of the U. P. Land Revenue Act and the writ petition is not entertained on the principle that in summary proceedings title of the parties are not decided and the summary proceedings are always subject to adjudication of title by the competent court.
30. .........The present proceedings arise out of the mutation proceedings which is summary proceeding and the writ petitions against the summary proceedings are not entertained under Article 226 of Constitution of India."
12. In the case of Sri Lal Bachan vs. Board of Revenue, U.P., Lucknow & Ors. [2002 (20) LCD 115], this Court in para- 23 has spelt out some exceptions in which writ petition can be maintained. Exception was that mutation court has passed the order without having any jurisdiction or has interfered with the order passed in the proceedings and there too substantial injustice to be suffered by the parties has to be seen.
13. Hon'ble Pankaj Mithal, J. in the case of Vinod Kumar Rajbhar vs. State of U.P and Ors. [2012(1) ADJ 792], has described the character of mutation proceedings in para- 5, which is being reproduced below:
"(i) mutation proceedings are summary in nature wherein title of the parties over the land involved is not decided;
(ii) mutation order or revenue entries are only for the fiscal purposes to enable the State to collect revenue from the person recorded;
(iii) they neither extinguish nor create title;
(iv) the order of mutation does not in any way effect the title of the parties over the land in dispute; and
(v) such orders or entries are not documents of title are subject to decision of the competent court."
14. Similar view has been taken by Hon'ble Anil Kumar, J. in the case of Ashok Kumar vs. Chairman, Board of Revenue, U.P., Lucknow and another [2013(118) RD 646]. Para-10 of the judgment is being reproduced below:-
"10. Further, it is settled view of this Court that it should not interfere with the order issued by the authorities while deciding the proceedings under Section 34 of the Land Revenue Act, as in the said proceedings the issue only in respect to record the name of tenure holder in the revenue record is under consideration. Such an entry does not ordinarily confer upon the person in whose favour it is made any title of property in question and his right is to be established as per the procedure provided under law (see Jaipal v. Board of Revenue, U.P., Allahabad and Others, Smt. Lakhpati and Another v. Board of Revenue, U.P., State of U.P. through Collector, Agra v. Board of Revenue at Lucknow and others, Shiv Raj Gupta v. Board of Revenue, U.P., Lucknow, Pooran Singh v. Board of Revenue, U.P., Lucknow and others), hence I do not find any illegality or infirmity in the impugned order dated 18.06.2012 (Annexure no. 1) passed by opposite party no. 1/Board of Revenue, Lucknow."
15. Only following exceptions have been carved where remedy of writ under Article 226 of the Constitution of India can be said to be available:
(i) order is absolutely without jurisdiction;
(ii) order passed is against the entry made in pursuance of the order passed by regular court;
(iii) where courts have not considered the matter on merits like courts have passed orders on restoration application etc;
(iv) where order has been obtained by fraud or by fabricating the documents.
16. In the instant case, all the three courts have considered the entire material on record and have decided against the petitioner as such it is not a case attracting any exception mentioned above calling for interference under Article 226 of the Constitution of India.
17. In the present case, all the three Courts have not accepted the registered Will as claimed by the respondents. Naib Tahsildar has noted various suspicious circumstances. Appellate court has also accepted the contention of Naib Tahsildar holding Will to be suspicious. Revisional court has also held that burden to explain the suspicious circumstances was on the respondents which he did not discharge. Revisional court accepted the findings of the trial court which found the Will suspicious and not proved. All the three Courts having held the Will as suspicious after appreciating the evidence on record, it cannot be said that they exceeded in their jurisdiction in deciding the mutation application.
18. As observed above the mutation court has jurisdiction to examine the evidence to find out as to whether transfer or succession had taken place or not. Orders passed by mutation court cannot be held to be without jurisdiction or in excess of jurisdiction under the provisions of the U. P. Land Revenue Act, 1901. However, findings recorded bymutation courts are findings only in summary proceedings and have nobearing when the title is adjudicated by competent court on the basis of right claimed by the petitioners. In view of the proposition laid down in Lal Bachan's case (supra), I do not find it a fit case to be entertained under Article 226 of the Constitution it having arisen out of summary proceedings of mutation under Section 34 of U. P. Land Revenue Act, 1901.
19. In view of the discussions made above, writ petition is devoid of merits and is liable to the dismissed.
20. Writ petition is dismissed, as such.
Order Date : 09.02.2015 Nitesh