Allahabad High Court
Birendra Kumar Singh And Anr. vs Commissioner Devi Patan Mandal,Gonda ... on 1 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 1790, (2019) 12 ADJ 82 (ALL) (2020) 1 ALL WC 36, (2020) 1 ALL WC 36
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 25 A.F.R. Case :- MISC. SINGLE No. - 30097 of 2019 Petitioner :- Birendra Kumar Singh And Anr. Respondent :- Commissioner Devi Patan Mandal,Gonda And Ors. Counsel for Petitioner :- Rajendra Pratap Singh,Arvind Pratap Singh Counsel for Respondent :- C.S.C.,M.A.Khan,V.D.Pandey Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. Heard Sri R.P. Singh, learned Counsel for the petitioners, Mohd. Arif Khan, learned Senior Advocate, assisted by Mr. M.A. Khan and Mohd. Aslam Khan, learned Counsel for the respondents.
2. The petitioners pray for quashing of the order dated 08.12.2017 passed by the Tehsildar, Tehsil- Colonelganj, District- Gonda, in the mutation proceedings and also the order dated 17.12.2018 passed by him on recall application as well as order dated 17.10.2019 passed by the Commissioner, Devi Patan Mandal, Gonda, thereby rejecting the revision.
3. It has been submitted by learned Counsel for the petitioners that one Sumiran Singh s/o Raghubir Singh, resident of Village- Basehiya, was un-married and the petitioners as well as Devendra Singh looked after him till his old age. In the last stage of his life, Sumiran Singh, out of love and affection, executed a will deed on 11.04.1984 in the name of petitioners and Devendra Singh. Thereafter, Sumiran Singh passed away on 13.04.1984. After the death of Sumiran Singh, the petitioners and Devendra Singh came into the possession over the property and filed the application for mutating their names on 17.09.1992. Since the property was situated in two villages, therefore, two mutation applications were filed.
4. After the necessary enquiry including recording of evidence of witnesses, the Naib Tehsildar, Tehsil- Colonelganj, District- Gonda passed an order dated 25.07.1994 for expunging the name of of the deceased Sumiran Singh and mutating the names of the petitioners and Devendra Singh as Bhumidhar with transferable rights. Smt. Ram Sanwari w/o Sri Sher Bahadur Singh filed a recall application which was rejected on 04.01.1995. Another recall application was moved by Shailendra Bahadur Singh, Mahendra Pratap Singh both sons of Sher Bahadur Singh for setting aside mutation proceedings dated 25.07.1994 as well as the order dated 04.01.1995 on the ground that Sumiran Singh has transferred the land in question in favour of Smt. Ram Sanwari Devi, the mother of the applicants. The said recall application was moved on 08.08.2011, which was allowed by the Tehsildar on 30.09.2013.
5. The petitioners thereafter challenged the order dated 30.09.2013 by filing an appeal before the Sub-Divisional Officer, Colonelganj. The said appeal was rejected on 10.10.2013 on the ground that the order dated 30.09.2013 was interlocutory in nature. The petitioner further filed a revision against such order of recall, which was allowed on 20.01.2016 and the matter was remanded to the Tehsildar, Colonelganj for deciding afresh after hearing both the parties.
6. The Tehsildar allowed the recall application on 08.12.2017, and thereafter the petitioners again filed an appeal, which was rejected by the Sub Divisional Officer, Colonelganj on 26.03.2018. The petitioners thereafter filed a revision, which remained pending. In the meantime, the Tehsildar without giving the opportunity to the petitioners passed the final orders on the mutation application on 17.12.2018.
7. It has been submitted that by the order dated 17.12.2018, it was directed that the names of the private respondents be mutated and the name of the petitioners be expunged from the revenue records. The petitioners filed a revision against the said order, namely, Revision No. 01790 of 2018: Virendra Kumar Singh Vs. Mahendra Pratap Singh, which was also rejected by the Commissioner, Devi Patan Mandal, Gonda. Hence this petition has been filed.
8. It has been submitted by learned Counsel for the petitioners that the entry in the revenue records on 25.07.1994 could not have been expunged by entertaining the recall application that was filed in the year 2011. There was no finding recorded by the Tehsildar regarding possession and this Court has held in several decisions that a mutation application based on a registered or on un-registered sale deed should be decided only after giving a finding on possession. The order dated 25.07.1994 was passed after recording the finding of possession of the petitioners and Devendra Singh over the land in question. It could only be recalled after recording the finding with regard to the possession of the private respondents, who has filed the restoration application.
9. Mohd. Arif Khan, learned senior advocate, assisted by Sri M.A. Khan and Sri Aslam Khan, learned Counsel who has filed the caveat on behalf of respondent no.3 and now appears for all the respondents, has raised a preliminary objection regarding maintainability of the petition against the orders passed in mutation proceedings. Learned Counsel for the private respondents has placed reliance upon the judgment rendered by co-ordinate Bench of this Court in Raghav Ram Vs. Board of Revenue, U.P. and others, 2010 ACJ 53, this Court has placed reliance upon the judgment rendered in Narain Singhand others Vs. Additional Commissioner, Meerut, reported in 1999 ACJ 816. The judgment in Narain Singh (supra) relied upon the Division Bench of this Court in Ram Bharosey Lal Vs. State of U.P. and others, 1990 ACJ 749. In Narain Singh (supra), this Court has observed that the proceedings under Section 34 of the U.P. Revenue Act are summary in nature. In these proceedings, right and title of the parties to the property in dispute are not decided. The orders passed in the said proceedings are not binding upon the parties or upon the courts in regular suit or proceedings. The said orders are subject to the decision by the court on the regular side. The parties aggrieved by the said order may file a regular suit before the court of competent jurisdiction for declaration of his title, therefore, a writ petition under Article 226 of the Constitution of India challenging the validity of the orders passed in such proceedings is not maintainable.
10. The Division Bench in Ram Bharosey Lal (supra) has observed the following:-
"By now it is well settled that where a dispute is in mutation proceedings which do not adjudicate upon the rights or title of the parties, this court need not interfere under Article 226 of the Constitution of India. In such matters, person aggrieved shall have rider to seek remedy in the appropriate court."
11. Learned Counsel for the petitioners however has placed reliance upon the judgment rendered by the Co-ordinate Bench of this Court in Writ Petition No.262 (M/S) of 2017:Rudra Mani Shukla Vs. Subhash Kumar and two others. This court had noted the preliminary objection with regard to the maintainability of the writ petition raised by the State respondents and the order passed by it on 06.01.2017, rejecting such objection by holding that the mutation proceedings were decided on merits without any enquiry into the possession or holding any proceedings which involved proving the Gift Deed by which the respondent had claim mutation in their favour. The mutation proceedings being decided without following the procedure prescribed, the writ petition was entertained in the peculiar circumstances of the case. Existence of alternative remedy is not an absolute bar.
The contention of the writ petitioner therein was based on the provisions of Rule A-375 of Revenue Court's Manual, wherein primarily proclamation is made on the basis of mutation application, in favour of the person who has obtained possession, and the case may be finally decided on the basis of objections raised by any person. The proclamation required that such person who raised the objection must produce evidence that he is in possession in support of his objection. Rudra Mani Shukla was in possession and his objection was maintainable yet it was not entertained.
12. This Court has observed that under Section 34 of the U.P. Land Revenue Act, every person obtaining possession of any land by succession or transfer (other than a succession or transfer which has already been recorded under Section 33-A), shall report such succession or transfer to the Tehsildar of the Tehsil in which the land is situated. Under Section 35 of the same Act, on receiving a report of transfer or succession or upon facts otherwise coming to his knowledge, the Tehsildar shall make such inquiry as appears necessary, and if the succession or transfer appears to have taken place, he shall direct the annual registers to be amended accordingly.
Section 40 provides that all disputes regarding entries in the annual registers shall be decided on the basis of possession. Sub section 2 of Section 40 provides that if in the course of inquiry into a dispute under this Section, the Tehsildar is unable to satisfy himself as to which party is in possession, he shall ascertain in a summary inquiry as to who is the person best entitled to the property, and shall put such person in possession.
13. This Court has observed in Rudra Mani Shukla that it was incumbent upon the Tehsildar to make necessary enquiries about the existing entries in the relevant papers and also to make an enquiry as to who was in possession, and then give a finding with regard to the rights of the objector. "Mutation proceedings are important proceedings as, entries based thereon in the record of rights (Khatauni) are presumed to be correct under Section 35 of the Land Revenue Act 1901 as also Section 40 of the U.P. Revenue Code 2006 and practically all transactions are made after perusing such entries. No doubt, in matters of sale, the purchaser is required to make due inquiry with diligence as to the real owner and any dispute in respect thereof but if the name is recorded in the revenue records, sale transaction etc., are easily made. True it is that Revenue records are not documents of title by themselves and are for purposes of realization of revenue but in view of the presumption attached to them especially in view of the contents of Khatauni as prescribed in Section 31 of the Revenue Code, 2006 their importance in practical terms hardly needs to be emphasized. It is easy to say that an aggrieved party may establish his title in regular proceedings but the fact is that such proceedings go on for years together, therefore, judicious application of mind in mutation proceedings, even though they are summary proceedings, can at times prevent injustice and prolonged litigation. This is not to suggest that interference in such matters should be made in a routine manner....."
14. Learned Counsel for the petitioner has placed reliance upon the Co-ordinate Bench decision rendered in Amar Nath Arora Vs. Board of Revenue, U.P. Lucknow and others reported in 2019 LCD 775. This Court has relied upon observations made in Rudra Mani Shukla (supra) and rejected the preliminary objection of the respondent therein that writ petition against orders passed in mutation proceedings alone are not maintainable.
15. This Court in paragraphs 27 and 31 had observed as under:-
"27. What persuades this Court to entertain this writ petition, though the same has been preferred against the orders passed in mutation case, is the fact that in terms of the provisions contained in Sections 34 and 35 of the U.P. Revenue Code, 2006, the finding of 'obtaining possession' is necessarily to be returned by the court concerned, however, ignoring the said provision since the impugned orders have been passed, without recording a finding in respect of obtaining possession, I am inclined to entertain this writ petition in the peculiar facts and circumstances of the case and accordingly reject the objection raised by the learned Senior Advocate appearing on behalf of the respondent No. 4 regarding maintainability of the writ petition.
31. The mutation proceedings in respect of agricultural land which are presently governed by the provisions of Sections 34 and 35 of the U.P. Revenue Code, 2006, were earlier governed by Sections 34 and 35 of the U.P. Land Revenue Act. The provision of Section 34 of the U.P. Revenue Code, 2006 and Section 35 of the U.P. Revenue Act are in pari materia. In both these provisions, the emphasis, in my considered opinion, is on 'obtaining possession by transfer'."
16. It is apparent from a perusal of the judgments cited by the learned Counsel for the petitioners that they were rendered in the facts and circumstances of the particular case which was being dealt with by this Court in the aforesaid two writ petitions. As a rule, however, the writ petitions are not maintainable against the orders passed in mutation proceedings unless such orders are without jurisdiction or have been passed against the settled provisions of law and create a right title and interest which is otherwise prohibited under the Statute.
17. This Court has considered all binding precedents and has held so in the judgment rendered in Awadhesh Singh Vs. Additional Commissioner and others, reported in 2017 (9) ADJ 378.
18. In the case of the petitioners, Sri Mohd. Arif Khan, learned Senior Counsel, has read out the relevant portion of the order passed by the Commissioner in the Revision wherein a specific finding has been recorded with regard to the inspection being carried out and it having been found that the private respondents were in possession of the property. He has also pointed out from the orders passed by the Tehsildar at internal page-2 of the order dated 17.12.2018 that "mauke par kabja mahendra pratap singh aadi ka hai"
19. It has also been submitted by Mohd. Arif Khan, learned Senior Advocate, that the mutation application was decided in favour of the private respondents on the basis of a registered sale deed. The petitioners were claiming on the basis of an un-registered will deed of the year 1984, whereas the sale deed had been executed by Sumiran Singh on 02.06.1969. The sale deed having also been certified to have been registered in report dated 24.09.2011 by the Sub-Registrar, Tarabganj, and having been found in order; on the basis thereof the mutation has been made in favour of the private respondent.
20. This court is of the considered opinion that the orders passed by the learned revenue courts with respect to mutation application do not create any right title or interest in favour of the private respondents. It is always open for the petitioners to challenge the registered sale deed dated 02.06.1969 before a civil court of competent jurisdiction and to get the declaration of the said sale deed as void being as a forged document.
So long as the registered sale deed exists, mutation orders passed on the basis of such registered sale deed do not suffer from any infirmity for this Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India and interfere in the same.
21. The writ petition is therefore dismissed as not maintainable.
22. It shall be open for the petitioners to approach appropriate civil court of competent jurisdiction to get the registered sale deed declared as forged document as observed by this Court herein above.
Order Date :- 1.11.2019 Rahul