Allahabad High Court
Avadhesh Kumar And 5 Others vs State Of U.P. And Another on 11 November, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:176165 Court No. - 49 Case :- WRIT - B No. - 14236 of 2017 Petitioner :- Avadhesh Kumar And 5 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Akanksha Mishra,Amit Kumar Sharma,Kshitij Shailendra (Elevated),Manoj Kumar Sharma,Sudhir Mehrotra,Tanisha Jahangir Monir Counsel for Respondent :- Abhinav Gaur,C.S.C.,Krishna Mohan Asthana,Rakesh Kumar Verma,Sanjeev Kumar Pandey,Vibhu Rai,Vidya Shanker Pandey Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Manoj Kumar Sharma, learned counsel for petitioners and Sri Krishna Mohan Asthana, learned counsel for contesting respondent.
2. This matter is arising out of a mutation proceedings. Petitioners and contesting respondent are claiming their names on basis of their respective sale-deeds. So far as, claim of petitioners is concerned, it is on basis of a sale-deed dated 14.09.1961 and at the time of consolidation proceedings, their name was entered.Subsequently, the contesting respondent filed a mutation proceedings on basis of a sale-deed dated 25.07.1956, prior in time after a substantial period i.e. in the year 2015, claiming that during interregnum period, name of her father was recorded on basis of said sale-deed. Be that it may be, the said petition was dismissed with following operative part :-
"??????? ???? ?????? ?? ??? ???? ??? ?? ?????? ?? ??????? ??? ?? ?????????? ?????? 25.07.1956 ??????? ????????? ?? ????? ?? ?????? ???? ?? ??? ????? ???? ?? ??????? ?? ????? ?? ?? ???? ?????? 61 ? ?? ?????? ?? ???????? ??? ???? ???? ?? ?? ?? ???????? ???? ??? ??, ????? ?????? ???? ?? ?? ???????? ?????????? ?? ????? ?? ?????? ???? ????? ????? ?????? ????? ????? ?? ??? ???? ?????? 5000/- ???? ?? ???? ??? ?? ?? ??? ???? ??????? ?? ??? ????? ????? ?? ???????? ?? ???? ?? ?? ???? ?? ?? ???? ????? ????? ???? ???? ???? ????? ???? ?? ??? ?????????? ?????? 25.07.1956 ??????? ??????? ?? ????? ?? ?? ????? ???? ??? ??? ?? ?????? ?? ????? ????? ?? ????????? ????? ??????? ???????? ??? ?? ?? ???? ????? ?? ?? ???? ???? ?????? ???? ?? ???? ?? ???? ???? ???? ?? ??? ????-49 ????????? ??????? ??????? ?? ???????? ?? ????? ?? ??? ????????????? ????? ????? ??? ?????? ???????? ???? ??????????? ?? ?? ????? ??? ?? ???? ???? ??? ??? ?????? ??????? ???? ????? ????? ?? ?????? ?? ???? ?????? ???????? ???? ?? ??????? ???? ???? ??? ??? ?????? ???? ???? ?? ?? ?? ???? ???? ??? ????????????? ?????????? ????? 10.07.1947 ?? ???? ?? ???? ??? ?? ?? ???? 20 ?????? ??????????? ??????? ?? ????? ??, ??????? ?? ?????????? ?? ???? ?? ??? ????? 01.07. 1952 ?? ????? ????????? ?????? ??????? ?? ???????? ???????? ????? ???? ??? ?????? ?? ??? ???? ?????? ?? ??????? ????????? ?? ????? ??? ?????? ???? ?? ?? ???? ?? ????? ????-49 ????????? ??????? ??????? ?? ????? ?? ??? ??????? ????? ???????? ?? ?????????? ????????? ?????? ??? ?????? 32/34/08 ???????? ???? 143 ?.??.???. ?? ???????? ????? ????? ?? ?? ???? ??? ?? ???? ?? ???? ????? ?? ????? ??? ?????? ???? ?????? ???????? ?? ????????????? ? ???? ?? ???? ????? ????? ????? ?? ????????? ????????????? ?????? ? ???? ?? ???? ?????? ???? ????? ???"
3. In the aforesaid circumstances, the contesting respondent filed a revision petition before the Board of Revenue, which was allowed by impugned order dated 20.01.2017. The relevant part thereof is mentioned hereinafter :-
"??? ???? ?? ??????? ?????????? ?? ???? ??? ??? ???????? ?? ?????? ???????? ??? ?????? ?????? ???????? ????? ??? ?? ??????? ???? ????
??????? ??? ???? ?? ?????? ?? ?? ????? ????? ?????? ????????? ????? ???? ???? ??????? ??? ??????? ?????? ?????? 25.7.1956 ?? ???? ??? ??????? ?? ???? ?? ???? ????? ????? ????? ?????????? ????? ?? ????? ????? ????? ?????? ???? ????? ????? ?? ?? ?? ????????? ???????? ??? ?????? 24.03.2015 ?? ???????? ???????????? ???????? ????? ?? ???????? ??? ??? ????? ????? ??? ?????? ?????? 21.09.2015 ?? ?????? ???????? ?? ??? ?? ?? ??????? ???? ?? ????????? ?????? ??????? ??????? ?? ???? ???? 45 ?? ???? ?? ???? ??????? ??? ?????????? ?? ????? ????? ?? ??? ????????????? ?? ???? ??? ? ????????????? ?? ???????? ?? ??? ???? 49 ?.???. ??? ??????? ??????? ?? ????? ???? ?? ???? ???? ???? ????? ??? ???????? ???????? ?? ???? ?????? 06.11.2015 ?? ?????? ???????? ???????? ????? ????? ??? ?????? ???? ?????? 25.07.1956 ?? ???? ?? ???? 49 ?????? ??? ??????? ??????? ?? ????? ???? ??? ?????? ???????? ?? ????????????? ?? ??? ???? ?? ???? ?????? ???? ??? ???????? ?? ???? ?????? 06.11.2015 ?? ??????? ????? ????? ?????? ???? ????? ????? ????? ?????? ????? ???????? ??? ??????? ????? ?? ??? ???
???????? ?? ?????? ??????? ???????? ?? ???? ?????? 06.11.2015 ?? ?????? ?? ????? ???? ??? ?? ???????? ?? ???? ?? ???? ?? ???????? ??? ?? ???? ?? ?????? ???? ?? ???????? ???????? / ????? ????? ??? ?????? ???? ?????? 25.07.1956 ?? ???? ?? ???? 49 ?.???. ??? ??????? ??????? ?? ????? ???? ??? ?????? ???????? ?? ????????????? ?? ???? ???
??????? ???????? ???? ???? ?????? 6.11.2015 ??? ?? ???? ?? ?? ?????? ???? ??? ?? ???? ???? ?????? 25.7.1956 ??????? ????????? ?? ????? ?? ?????? ???? ?? ??? ????? ???? ?? ??????? ?? ????? ?? ?? ???? ??? 61 ? ?? ?????? ?? ???????? ??? ???? ???? ?? ?? ?? ???????? ???? ??? ?? ????? ?????? ???? ?? ?? ?????? ????? ????? ?? ????? ?? ???? ????? ????? ????? ?????????? ?? ??? ???? ?????? ???? ?? ???? ?? ?? ?? ??? ???? ??????? ?? ??? ????? ????? ?? ???????? ?? ???? ?? ?? ???? ?? ?? ???? ????? ????? ???? ???? ???? ????? ??? ?? ??? ?????? ???? ?????? 25.07.1956 ??????? ????????? ?? ????? ?? ?? ????? ???? ??? ??? ?? ?????? ?? ????? ????? ?? ????????? ????? ??????? ???????? ??? ?? ?? ???? ????? ??? ?? ???? ???? ?????? ???? ?? ???? ?? ?????? ?? ?????? ???? ?? ?? ???????? ????? ???? ???? ?????????? ?????? ?? ???? ?? ????? ???? ??? ??? ??????? ????? ?? ???? ?? ??????? ???????? ?? ???? ?????? 06.11.2015 ????? ??? ?? ??????????? ???
??????? ??????? ?? ???? ?? ??????? ??????? ?? ???? ?? ??? ??????? ???????? ?? ???? ?????? 06.11.2015 ?????? ???? ???? ??? ??? ?????? ???? ?????? 25.07.1956 ?? ???? ?? ????? ???? ?????? 25.10.1956 ?? ?????? ?? ???? ??? ??? ???????? ?? ?????? ???? ???? ????? ??? ?????? ????????? ???????? ????? ????? ?? ?????"
4. Petitioners have filed this writ petition challenging the aforesaid referred order.
5. This Court has passed following order on 06.04.2017 :-
"Heard learned counsel for the parties.
The petitioner by means of the instant writ petition is assailing the order dated 20 January 2017, passed by Board of Revenue in Revision No.3003 of 2015, arising from a mutation proceeding under Section 34/39 of U.P. Land Revenue Act, 1901.
It is sought to be urged by the learned counsel for the petitioner that the second respondent had set up a case for correcting revenue record in 2014 on the basis of a sale deed alleged to have been executed on 25 July 1956 in favour of her father. It is admitted that pursuant to the sale deed, name of the father of the second respondent was never mutated though, it has been noted in the impugned order that in one Fasli, name of the father of second respondent was recorded. It is further noted in the impugned order that the father of second respondent died in 2011. In the intervening period, consolidation proceedings commenced upon notification under Section 4(2) of U.P. Consolidation of Holdings Act, 1953. In the basic year, it is admitted that name of second respondent or her father was never recorded nor any objection was filed, therefore, it is urged that the proceedings attained finality upon publication of notification in terms of Section 49. It is also admitted by the learned counsel, appearing for the second respondent that for the first time, the application was moved in 2014 and during the entire period until 2014 barring one Fasli, name of petitioner continued in the revenue record as owner pursuant to the sale deed by the recorded tenure holder executed in 1966. Therefore, in this background, it is urged by the learned counsel for the petitioner that there is a presumption of ownership in view of entry continued since long. Therefore, entry could not have been disturbed in the mutation proceedings under Section 34/39. In support of his submission, learned counsel has placed reliance upon a decision rendered by this Court in Sridhar Tripathi Vs. Board of Revenue; 1997 (15) LCD 464.
Submission requires consideration.
Four weeks time is granted to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List thereafter.
Till the next date of listing, effect and operation of impugned order dated 20 January 2017, passed by Board of Revenue, U.P. Lucknow in Revision No. 3003 of 2015, shall remain stayed, the second respondent is restrained from interfering in the peaceful possession of the petitioners in respect of the disputed plot. "
6. Thereafter, matter remained pending for substantial period and on 15.12.2022 following order was passed on a Stay Extension Application No.28 of 2020 :-
"C.M.Stay Extension Application No.28 of 2020 The instant application has been filed to extend the interim order dated 06.04.2017 passed by this Court staying the effect and operation of the impugned revisional order as well as respondent was retrained from interfering in the peaceful possession of the plot in dispute. The interim order granted by this Court was extended from time to time, but the same was not extended on certain dates. Accordingly, the instant application has been filed.
Counsel for the petitioners submitted that petitioners were recorded in the revenue record during consolidation operation on the basis of registered sale-deed executed by recorded tenure holder in favour of petitioners in 1966, as such the entry of petitioners cannot be expunged in the summary proceeding.
On the other hand, learned counsel for the respondents submitted that suit for cancellation of petitioners sale deed is pending in the civil court as such, the writ petition arising out of summary proceeding should not be entrained.
Considering the facts and circumstances of this case that petitioners were recorded during consolidation operation on the basis of registered sale deed of 1966, interim order granted by this Court dated 06.04.2017 is hereby extended until further orders of this Court and the parties are directed to maintain status quo with respect to the nature and possession of the property in dispute.
Application is accordingly, disposed of.
Order on writ petition List this matter for disposal of 31st January, 2023. "
7. Counsel for parties have not much disputed that contesting respondent has filed a suit to challenge the sale-deed dated 14.09.1961 executed in favour of petitioners, however, the said suit was dismissed by an order dated 11.07.2023.
8. Learned counsel for petitioners submits that against first Appeal No.131 of 2023 before learned District Judge is still pending and it is at stage of fag end, however, he fairly submits that there is no interim order in proceedings.
9. It has been also brought on record that a proceeding arising out of a complaint for inspection of sale-deed wherein a direction was passed by District Magistrate was challenged before this Court, wherein a Division Bench of this Court in Kavita Sharma Vs. State of U.P. and 4 others, 2024:AHC:207441-DB, has dismissed it.
10. The said order is under challenge before the Supreme Court, wherein notice has been issued, however, the outcome of it does not impact much on merit of the present case.
11. It is well settled that mutation proceedings are of summary nature. It does not confer affirmative of title of any land.
12. The dispute before this Court is in regard to entries in the revenue records, on basis of their respective sale-deed. It is not on record that petitioners have challenged the sale-deed executed in favour of contesting respondent.
13. As referred above, so far as challenge to sale-deed executed in favour of petitioners, subsequently, has been failed since a suit at the instance of contesting respondent has already been rejected though first appeal is pending but there is no interim order.
14. In the aforesaid circumstances, since there are subsequent development, therefore, this writ petition is disposed of with an observation/direction that petitioners will have liberty to carry out mutation proceedings afresh on basis of subsequent events since this writ petition is pending for last more than 7 years, and there is an interim order operating, therefore, interim order referred above shall remain in currency for a period of six weeks.
15. Meanwhile, concerned Court will decide the said mutation proceedings on basis of subsequent events, if a fresh application is filed.
16. Meanwhile, if the first appeal is decided a copy of the order be placed as its legal consequence will also be considered.
17. Since, the proceedings are arising out of mutation proceeding which are summary in nature, no observation of this Court may affect issue of title.
Order Date :- 11.11.2024 P. Pandey