Allahabad High Court
Smt. Hadisul Nisha vs Additional Commissioner (Judicial) ... on 25 June, 2021
Equivalent citations: AIRONLINE 2021 ALL 2060
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 19.02.2021 Delivered on 25.06.2021 A.F.R. Case :- MISC. SINGLE No. - 5147 of 2015 Petitioner :- Smt. Hadisul Nisha Respondent :- Additional Commissioner (Judicial) Faizabad And Ors. Counsel for Petitioner :- S.K.Upadhyay,Pradeep Kumar Maurya,Pramesh Kumar Jaiswal Counsel for Respondent :- C.S.C.,Adnan Ahmad,B.K.Singh,Varun Pratap Singh Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition has been filed by the petitioner Hadisulnisha for quashing of the order dated 23.01.2014 passed by the Sub Divisional Magistrate Sultanpur, in Appeal No. 89 of 2014, and for quashing of the order dated 13.04.2015, rejecting the petitioners' restoration/recall application as also for quashing of the order dated 03.08.2015 passed by the Additional Commissioner in Revision No. 2719 under section 219 of the UP Land Revenue Act.
2. It is the case of the petitioner that she is the widow of Late Kamaal Ahmad son of Nazir Khan, the recorded tenure holder of several plots of land situated in village Seur Chamurkha, Pargana Bharosa, Tehsil Sadar, District Sultanpur. Late Nazir Khan had two sons, Late Kamaal Ahmad and one Ansar Ahmad, who has been arrayed as the opposite party no.3. Kamaal Ahmad the husband of the petitioner died in June 1999 and the petitioner''s name was recorded under PA 11 by the Revenue Inspector on the basis of succession. The opposite party No.3being the real brother of Kamaal Ahmad initially filed an application for mutation on the basis of forged Will deed which was dismissed for want of prosecution. An application was moved for recall of the order which was subsequently not pressedby Opposite Party No.3.
3. The opposite party no.3 after nearly ten years moved another application on 19.01.2009 for mutation of property of late Kamaal Ahmad on the ground of remarriage of the petitioner after the death of his brother. It was alleged that the petitioner had married one Atiq Ahmad resident of village Rethua, Pargana Haveli, District Faizabad. The said mutation application was rejected by the Tehsildar on 08.11.2013. The opposite party No.3 preferred an Appeal before the Sub Divisional Magistrate (hereinafter referred to as "opposite party no.2") on 12.01.13, registered as Appeal No.89/13.
4. It is the case of the petitioner that wrong address of the petitioner, showing her to be resident of village Rethua District Faizabad, was mentioned in the Appeal as a result whereof no notice was ever served upon the petitioner. The Appellate Court presumed service upon the petitioner on the ground that notice had been sent through ordinary post, through registered post, and then substituted service was adopted through publication in the newspaper. The appeal was allowed ex-parte on 23.01.2014. The petitioner having derived knowledge of the said appellate order through village gossip moved an application for restoration/recall of order dated 23.01.2014 on 03.02.2014 but the same was rejected by the Appellate Court by observing that notice had been sent on the address mentioned in the Appeal and The Restoration application lacked details of date of deriving knowledge of the order passed in Appeal and the mode and manner of deriving such knowledge.
5. The petitioner being aggrieved filed a Revision before the Additional Commissioner who rejected the same by making certain observations also on the merit of the case as set up by the parties. Such observations being prejudicial to the petitioner's interest and holding her to have remarried and thus being dis-entitled to inherit the property of her late husband, the petitioner has approached this Court in Writ Petition.
6. This Court has gone through the pleadings on record. The petitioner in paragraph 10 of the writ petition states clearly that she is still living in the house which had been left by her late husband late Kamaal Ahmad and had not married anyone after his death. It is her case that she is still in possession over the entire property left by her husband and to substantiate her claim she has filed photocopies of all relevant documents including electricity bills, ration card, voter ID card, Aadhaar card, Population Register, Family Register and copy of receipt of Gas connection and Bank passbook issued to her showing her address as village Seur Chamurkha, collectively as Annexure 8 to the writ petition.
It has been submitted in paragraph 16 of the writ petition that the opposite party no.3 had filed a Revision against an order dated 14.02.2014 in a different proceeding under section 210 of the Land Revenue Act, where he had shown the address of the petitioner as Seur Chamurkha, Pargana Bharosa, Tehsil Sadar, district Sultanpur. True copies of the memo of the Revision and order passed on 03.06.2014 have been filed Annexure 12 and 13 to the petition.
It has been further submitted that the petitioner challenged the order dated 03.06.2014 before this Court where a direction was issued to the SDM to decide the restoration application expeditiously.
There is reference of another Writ Petition number 3340 (M/S) of 2015 where in the Court directed the Revisional Court to hear the matter positively on 26.06.2015, and in case due to unavoidable reasons it could not be heard on 26.06.2015, then it may be taken up on the next working day and so on and so forth till it was finally decided. After service of the order passed by this Court, the Revisional Court was not deciding the Revision and therefore the petitioner filed a Contempt Petition No. 1439 (C) of 2015:Hadisulnisa versus Dr. Abha Gupta. This Court directed the CSC to seek instructions. The Addl Commisioner Dr Abha Gupta, who was under transfer, preponed the date of listing of the Revision in the absence of the counsel for the petitioner and decided the same 3.8.2015 before leaving Sultanpur. The petitioner came to know of the order passed on 03.08.2015 only on 04.08.2015 when the petitioner reached the Court as the date had been fixed in the Revision earlier as 04.08.2015.
7. It has been submitted that the Revision had been decided on 03.08.2015 without appreciating evidence produced by the petitioner to show that she was still living in Seur Chamurkha and was in possession of the property in question. In the order passed by the Revisional Court it has observed that evidence existed both for and against the petitioner, and that is it is doubtful whether she had remarried or not after the death of her late husband, yet, while disposing of the Revision the Additional Commissioner held that the weight of evidence against the petitioner was sufficient and therefore concluded that she had indeed remarried, thus going beyond jurisdiction and declaring the right of the petitioner to claim succession having been lost on remarriage of the petitioner, which could only have been done by the competent court of law in a suit for declaration.
8. It has been further submitted that the opposite party No.3 had filed a Caveat in the Court of Commissioner Ayodhya, showing the petitioner as resident of village Seur Chamurkha ,Pargana Barosa,district Faizabad whereas the village of the petitioner falls in district Sultanpur.
9. It has been further argued by the learned counsel for the petitioner that after the order passed by the appellate court on 23.01.2014 the opposite party No.3 got his name mutated in the revenue record on the same day and then sold out the property in dispute during the pendency of the Revision on 24.05.2015.
10. In the counter affidavit filed on behalf of the opposite party No.3, in reply to paragraph 10 of the writ petition it has been stated only that the petitioner never moved any application for getting the entries in the Parivar Register of village Rethua District Faizabad deleted and that the voter ID card and Aadhaar card etc., filed as evidence of residence in village Seur Chamurkha District Sultanpur were misleading and the petitioner was herself responsible for not getting her details corrected in the voter I card and Aadhaar card etc. because while enjoying married life with her second husband at the Rethua, she wanted to retain the property of her first husband in Seur Chamurkha.
In response to the specific pleadings in the Writ petition that in two documents i.e. a Caveat application and in a Revision the opposite party No.3 had mentioned the address of the petitioner as village Seur Chamurkha, it has been only stated that the concurrent findings of fact recorded by the learned three courts below should not be interfered with in writ jurisdiction.
11. With regard to the argument raised by the learned counsel for the petitioner that the Additional Commissioner preponed the date of hearing of Revision from 04.08.2015 to 03.08.2015 in the absence of the learned counsel for the Revisionist, it has been submitted that it is evident from the record that the counsel for the petitioner had himself moved an application on 26.06.2015 for summoning lower court record while also providing copy of the order dated 15.06.2015 passed by this Court to the learned Revisional Court. The Revisional Court summoned the lower court file and fixed next date for hearing as 04.08.2015 on the application moved by the petitioner on 26.06.2015. However, on 01.07.2015 the petitioner filed a contempt petition and concealed the fact that she had herself got the next date fixed in the matter as 04.08.2015. When the Revisional Court received Fax information regarding filing of the contempt petition by the petitioner, the Revisional Court called the Advocates of both the parties and after hearing them on 01.08.2015, fixed the date for further hearing on 03.08.2015. Copies of orders dated 01.08.2015, 03.08.2015, and 04.08.2015 have been filed along with the counter affidavit to show that there was no malice on the part of the Revisional Court in preponing the date for hearing of the Revision. It has also been submitted that on 01.08.2015 the news relating to transfer of the Additional Commissioner was published in the newspapers and on the same day that is on 01.08.2015 Additional Commissioner had preponed the date for further hearing from 04.08.2015 to 03.08.2015 in the presence of the counsel for both the parties.
12. The counsel for the opposite party no.3 further argued on the merits of the case that the petitioner solemnized a second marriage on 25.12.2008, and when the opposite party No.3 came to know of her second marriage he filed an application under Section 34 which was wrongly rejected by the Tehsildar Sadar on 08.11.2013, without looking into evidence produced by him. There were statements of the Gram Pradhans of village Rethua and village Hasanpur, (the parental village of the petitioner), as well as the order of the Additional Development Officer (Panchayat) recording the name of the petitioner in the Family Register of Rethua. Also before the Additional Commissioner was the report of the Tehsil authorities dated 7.6.2014 submitted in pursuance of the order passed by the Sub Divisional Magistrate Sadar. Even the Investigating Officer in the FIR lodged by the petitioner regarding cheating and fraud allegedly committed by the opposite party No.3, had submitted a report on the basis of statements taken by the him of several villagers of village Rethua that the petitioner had married Atiq Khan of the said village.
13. In the counter affidavit filed by the respondent No.3 the contents of paragraph 37 to 66 of the writ petition have been denied altogether in one paragraph 14, and it has been submitted that the appropriate remedy for the petitioner is to file a Regular Suit for declaration of rights and the Writ Petition should not be entertained.
14. The learned counsel for the respondent No.3, Sri Adnan Ahmad, has also raised the preliminary objection regarding the maintainability of the writ petition against orders passed in mutation proceedings. He has referred to several judgements both by the Supreme Court and by a Division Bench and by Coordinate Benches of this Court to substantiate his argument. The judgements cited by the learned counsel are being listed here in below:-
(i) Jaipal (Minor) versus Board of Revenue, UP Allahabad, 1956 ALJ 807 (DB);
(ii) Smt. Sawarni versus Inder Kaur and others 1996 (6) SCC;
(iii) Lal Bachchan versus Board of Revenue, 2002 (22) LCD 115;
(iv) Bindeshwari versus Board of Revenue 2002 (1) AWC 498;
(v) Puran Singh versus Board of Revenue, 2004 (1) AWC 853;
(vi) Jagdish Narain and others versus Board of Revenue 2007 (1) ADJ 434;
(vii) Suraj Bhan and others versus Financial Commissioner and others 2007 (6) SCC 186;
(viii) Buddh Pal Singh versus State of U.P. and others 2012 (5)ADJ 216;
(ix) Vinod Kumar Rajbhar versus State of UP and others 2012 (2) AWC 1982;
(x) Ashok Kumar versus Chairman Board of Revenue UP Lucknow 2013(1) ADJ 646;
(xi) Mohammed Ismael@Kallu versus Board of Revenue 2013 (4) AWC 3687;
(xii) Vijay Shankar versus Additional Commissioner (administration) Lucknow Division and others 2015 (3) AWC3216;
(xiii) Tulsi Ram and others versus Additional Commissioner Judicial Lucknow and others 2016 (34) LCD 250;
(xiv) Awadhesh Singh versus Additional Commissioner and others 2017 (9) ADJ 378;
(xv) Gaj Ram versus State of UP and others 2017 (5) AWC 5217;
(xvi) Birendra Kumar Singh and others versus Commissioner, Devi Patan Mandal, and others 2019 (12) ADJ 82;
15. The last two judgements have been rendered by this Court after considering the law laid down in various judgements referred to hereinabove, to observe that ordinarily Writ Petitions are not entertained against orders passed in mutation proceedings for the simple reason that even if such orders are interfered with and favourable order is granted to the writ petitioner, it would not amount to settling of rights of the parties. Mutation proceedings being summary proceedings, only decide the question of liability to pay taxes/land revenue to the Government. They are mostly decided on the basis of possession and in case the Tehsildar is unable to satisfy himself as to which party is in possession, he has to ascertain in a summary enquiry as to who is the person best entitled to the property, and shall put such person in possession. However for determination/declaration of right, title and interest to property the parties would still have to approach the competent Revenue or Civil Court, as has been observed by the Supreme Court in Smt. Sawarni versus Inder Kaur; in paragraph 7 - "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".
16. The learned counsel for the petitioner on the other hand has placed reliance upon judgements of this Court also rendered by Coordinate Benches, where the Courts have observed that despite the settled position with regard to reluctance of the Writ Court to interfere in orders passed in mutation proceedings, there will be facts and circumstances peculiar to a case, which may justify interference in writ jurisdiction. The learned counsel for the petitioner has placed reliance upon Radhey Shyam and others versus State of U.P. and others, 2016 (34) 4 LCD 1793, wherein this Court had observed on the basis of observations made by the Supreme Court in State of Madhya Pradesh versus Babulal, AIR 1977 Supreme Court 1718, that a writ of Certiorari should be issued where the Lower Court acts illegally and there is error on the face of the record. If the court usurped jurisdiction, the record is corrected by Certiorari. This becomes more imperative where the Revisional Court has failed to exercise its jurisdiction vested in it, and such an order, even if passed in mutation proceedings, cannot be sustained in the eye of law and writ petition would be maintainable against such an order.
17. The Court in the case of Radhey Shyam (supra) observed in paragraph 18 - "although it is settled that mutation proceedings is fiscal in nature and the orders passed therein do not decide the right and title of the parties, ....., orders passed therein being summary in nature, writ petition would not be maintainable, but ..... since there is jurisdictional error, therefore the writ petition would lie against such orders, where Revisional Court has failed to exercise the jurisdiction vested in it. It may also be noticed that although the orders deciding the mutation case to do not decide the right and title of the parties and the judgements rendered therein are not binding upon the court deciding the title ....., but it may be kept in mind that the person whose name is recorded in the Revenue Record can transfer the land through registered sale deed, gift deed etc. In case the sale deed is executed only because of recording of name without having any valid title, the remedy, for the aggrieved person would be to file a suit but for cancellation of sale deed, not for declaration of rights which would consume a very long time and in the meantime even the nature of the land will be changed. Further, the possession would be enjoyed by the persons in whose favour and order of mutation has been passed or the transferee without there being any valid title, and the person having valid title will become a loser for years together, and in some cases if the land has gone into the hands of mafia or musclemen, the rightful owner may not be able to get the fruits of litigation during his life time. These contingencies and situations of the cases, although, may not have legal weight but the factual matrix and the reality of the same cannot be brushed aside while entertaining writ petition against orders passed in mutation cases."
18. This Court in Rudramani Shukla versus Subhash Kumar, 2017 (3) ADJ 510; made similar observations in paragraph 17 which are being quoted hereinbelow:-
"17. 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 enquiry with due diligence as to the real owner and any dispute in respect thereof, but if the name is recorded in the revenue records, sale transaction etcetera, are easily made. True it is that Revenue Records are not documents of title by themselves and are for purposes of realisation of revenue, but in view of the presumption attached to them, specially 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 emphasised. It is easy to say that an aggrieved party may establish his right 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."
19. The Courts in the aforecited decisions have laid down a few parametres for entertaining writs arising out of mutation proceedings. The exceptions that have been carved out being very few, for example:-
i) If the order is without jurisdiction;
ii) If the rights and title of the parties have already been decided by the competent court, and that has been varied by the mutation courts;
iii) If the mutation has been directed not on the basis of possession or simply on the basis of some title deed, but after entering into a debate of entitlement to succeed the property, touching into the merits of the rival claims;
iv) If rights have been created which are against statutory provisions of any Statute, and the entry itself confers a title on the petitioner by virtue of the provisions of the U.P. Zamindari Abolition and Land Reforms Act;
v) Where the orders impugned in the writ petition have been passed on the basis of fraud or misrepresentation of facts, or by fabricating the documents by anyone of the litigants.
vi) Where the courts have not considered the matter on merits for example the courts have passed orders on restoration applications etc (Vijay Shankar v Addl Commissioner; 2015 (33) LCD 1073)
20. This Court has perused the orders passed by the Tehsildar dated 08.11.2013 by which the Tehsildar has rejected the application for mutation filed by the opposite party no.3. The Tehsildar noticed that the parties to the litigation were both Muslims and governed by the Muslim law. The burden was upon the opposite party no.3 to prove that the petitioner Hadisul Nisha had remarried Atiq Khan after the death of her first husband. The opposite party No.3 had failed to produce any documentary evidence like Nikahnama. The Maulvi who solemnized the marriage was also not produced. There was no mention of Dower or Mehar by any of the witnesses produced by the Opposite Party No.3. The photocopy of the Parivar Register of village Rethua produced by the opposite party No.3 showed clear interpolation as first the name Rafiq Ul nisha was recorded which was scored out and thereafter the name of Hadisul Nisha shown as wife of Atiq Ahmad. It was also found by the Tehsildar that initially a copy of the Parivar Register which was produced was dated 05.02.2009 where after another photo copy was produced of the same Register dated 20.05.2010, wherein again there was interpolation, and the name of the wife of Atiq Khan was initially shown as Rafiq Ul Nisha, which was scored out and the name of the petitioner written over it. The order dated 22.03.2009 of the Additional Development Officer (Panchayat) was passed during the pendency of the mutation application. None of the witnesses produced by the opposite party No.3 had stated that they were actually present during the Nikaah ceremony of Hadisul Nisha with Atiq Ahmad. The opposite party No.3 also admitted in his cross-examination that the petitioner used to live in the same house as Opposite party No.3 which was the joint property of the opposite party No.3 and the late husband of the petitioner Kamaal Ahmad. It was stated by him that he used to pay the electricity bills, however, the petitioner Hadisul Nisha had produced copies of Electricity Bills of the same house paid by her. She had also produced copies of Irrigation Receipts and copies of Parivar Register of village Seur Chamurkha, showing her to be the widow of Kamaal Ahmad and living in the same village. The opposite party No.3 could not prove the remarriage of the petitioner on the basis of evidence led by him and therefore his application was rejected.
21. However, the Sub-Divisional Magistrate initially allowed the Appeal filed by the opposite party No.3 and later also rejected the recall application filed by the petitioner on 23.01.2014. The Sub Divisional Magistrate had placed reliance on the opposite party No.3 arguments in Appeal that the name of the petitioner having been recorded in the Family Register of village Rethua, as wife of Atiq Ahmad since 2009, and there being certificates issued by the Gram Pradhans of Seur Chamurkha, Rethua and Hasanpur, to the effect that Hadisul Nisha had married Atiq Khan, the burden was now upon Hadisul Nisha to prove that she had not remarried after the death of Kamaal Ahmad. It was observed that despite notice no documentary or oral evidence was produced by the petitioner to show that the Appellant had made a false claim. The Sub Divisional Magistrate observed that on summoning the lower Court Record, and even after Gazette publication of Notice, the respondent Hadisul Nisha had failed to appear. The Panchayat Register maintained under Section 5 of the Panchayat Raj Act showed the name of Hadisul Nisha as wife of a Atiq Ahmad resident of village Rethua District Faizabad. Hadisul Nisha had not made any effort to get the alleged wrong entry deleted or corrected. There was additional evidence in the form of affidavits of Gram Pradhans of villages Rethua, Seur Chamurkha and Hasanpur, that Hadisul Nisha had remarried. As per law settled by the High Court reported in 1980 ALJ 590 ; it could be said that a Muslim lady remarrying after death of her husband lost her right to the property of her late husband. Also under Section 171 (1) and section 172 (2) of the U.P.Z.A.& L.R. Act, a widow who remarries loses her right to the property of her late husband. The order passed by Tehsildar was set aside, and direction was issued that the name of the opposite party No.3 be recorded in the Revenue Records as successor to the property of Kamaal Ahmad.
22. The Revisional Court after noting the facts as mentioned in the order dated 08.11.2013, and also in the order dated 23.01.2014, framed an issue as to "whether the Revisionist had remarried after the death of her late husband? "
It observed that the Election Commission had issued Voters ID card on 15.07.2011 showing the Revisionist to be widow of Kamaal Ahmad r/o Village Seur Chamurkha. The Parivar Register of village Seur Chamurkha issued on 27.04.2015, also showed the Revisionist as widow of late Kamaal Ahmad. Another copy of the same Family Register issued on 21.08.2003, also showed the petitioner as widow of late Kamaal Ahmad. The original Electricity Bill dated 15.05.2007 also showed the name of the husband of the petitioner as late Kamaal Ahmad. Similarly Ration Card Number 198402 issued to her showed her husband''s name as Kamaal Hamad. The FIR filed on 28.02.2009 in PS Kotwali Nagar, Sultanpur showed the name of the husband of the petitioner as late Kamaal Ahmad. The original Irrigation Receipt dated 18.02.2010 issued in the name of the revisionist, showed her as widow of late Kamaal Ahmad. A second Irrigation Receipt also produced in original, dated 28.06.2010, also showed the petitioner's late husband as Kamaal Ahmad. A Surety Bond with photograph of the revisionist, duly verified by the Additional District and Session Judge, Sultanpur, on 12.10.2011, also showed the petitioner to be residing in village Seur Chamurkha District Sultanpur, and her husband being late Kamaal Ahmad. The certificate issued by the village Gram Pradhan of Seur Chamurkha dated 26.10.2010 which has been relied upon by the Additional District and Sessions Judge in his order dated 12.10.2011 showed the petitioner to be widow of late Kamaal Ahmad.
23. On the other hand, the opposite party no.3 had also produced copies of family register of village Rethua, Tehsil Sohawal, district Faizabad dated 17.01.2009, 05.02.2009, 25.03.2009 showing the name of Hadisulnisha as wife of Atiq Ahmad. The Area Lekhpal had submitted a report on 27.03.2012 that Hadisulnisha's parental house was in Village Hasanpur, and her first marriage took place in village Seur Chamurkha, and on death of Kamaal Ahmad she had married again in the village Rethua . This report was based upon certificate issued by the the gram Pradhan of village Rethua dated 25.03.2012. The Village Panchayat Officer also issued another certificate dated 08.06.2010 that Hadisulnisha was residing in village Rethua after marrying Atiq Ahmad. Information given by Village Development Officer of Seur Chamurkha dated 20.9.2011 was to effect that in the Family Register of the name of Hadisulnisha wife of late Kamaal Ahmad was missing.
24. In paragraph 8 of the Revisional order the Additional Commissioner has observed that evidence existed in favour of both the parties and it was doubtful whether the Revisionist had remarried after the death of her first husband. However, the Additional Commissioner relied upon the report dated 28.04.2012 of Naib Tehsildar Kurebhaar, submitted to the Tehsildar Sadar, Sultanpur on the request made by the opposite party no.3, wherein he had taken statements of Gram Pradhan of village Rethua as well as other residents of the same village who said that Atiq Ahmad had married twice, the second wife was from Sultanpur and often came to the village. The Area Lekhpal had submitted on the basis of statements made by residents of village Rethua that "it seems that Hadisulnisha widow of late Kamaal Ahmad resident of village Chamurkha,district Sultanpur had remarried."
The Additional Commissioner observed in the order impugned that from the report of the Area Lekhpal as submitted through the Tehsildar, Sadar Sultanpur, it was apparent that Hadisulnisha had remarried and on remarriage of a widow she ceases to have any right or claim over the property of her late husband, therefore there was no illegality in the order passed by the Appellate court and the Revision was rejected.
25. It is evident that the Revisional Court despite availability of evidence to the contrary also on record, chose to believe the report of the Area Lekhpal who had taken statements of residents of village Rethua in the absence of and without notice to the revisionist. It is not clear as to why the Tehsildar and Naib Sadar, Sultanpur chose not to summon a report from village Seur Chamurkha in their District Sultanpur, which was under their jurisdiction, and chose to believe the report of the Area Lekhpal submitted on the basis of statements given by residents of a village situated in a different district i.e. district Faizabad.
In doing so the Revisional Court also exceeded its jurisdiction as it gave a finding on fact which affected the title of the petitioner without giving any finding with regard to possession, which alone was necessary to decide a mutation case. The order passed by the Revisional Court is clearly hit by one of the five exceptions carved out by this Court in its various decisions to show interference in orders passed in mutation proceedings. The mutation in this case had been directed not on the basis of possession or simply on the basis of some title deed, but after entering into debate of entitlement to succeeding the property, touching into merits of the rival claims. The entry itself conferred a title on the opposite party No.3 by virtue of the provisions of the U.P.Z.A.& L.R. Act, section 171 and 172. Substantial injustice has been done to the petitioner by the order so passed by the Appellate and Revisional Court.
26. There was no examination of any witness to the alleged wedding nor examination of the said alleged husband of the petitioner Atiq Ahmad. The Appellate Court and the Revisional Court relied upon secondary evidence, the statements of village Pradhans and the report of the Area Lekhpal of village Rethua, saying that he had taken statements of several residents of village Rethua, who indicated that Atiq Ahmad had married twice. One of his wives belonged to Hasanpur village and often came to village Rethua to live with him. All this was done behind the back of the petitioner.
27. In Rudra Mani Shukla versus Subash Kumar (supra), the proceedings in mutation application were decided on merits without any enquiry into the possession. The enquiry was conducted only with regard to proving of the Gift deed by which the respondent therein had claimed mutation in his favour. Mutation being decided without following the procedure prescribed, the writ petition was entertained. It was observed that under Rule A375 of the Revenue Courts Manual, a proclamation is made on the basis of mutation application in favour of a person who has obtained possession on his having shown to the court evidence that he was in possession, in support of his objection. This Court had 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 had already been recorded under section 33A, shall report such succession or transfer to the Tehsildar of the Tehsil in which the land is situated. Under section 35, on receiving a report of transfer or succession or upon facts otherwise coming to his knowledge, the Tehsildar should make such enquiry as is necessary, and if he is satisfied that such succession or transfer appears to have taken place, he shall direct the Annual Registers to be amended accordingly. Section 40 clearly provides that all disputes regarding entries in the Annual Register shall be decided on the basis of possession.
28. This Court observed in Rudra Mani Shukla (supra) that it was incumbent upon the Tehsildar to make necessary enquiry about the existing entries in the relevant papers and also to make an enquiry as to who was in possession, and then make an order accordingly. In Amarnath Arora versus Board of Revenue U.P. Lucknow, 2019 LCD 775; a Coordinate Bench of this court placing reliance upon Rudra Mani Shukla (supra) observed in paragraph 27 and 31 Thus:-
"27. what persuades this Court to entertain this writ petition, though the same has been preferred against orders passed in a 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. Mutation proceedings in respect of agricultural land which are presently governed by the provisions of sections 34 and 35 of the UP Revenue Code 2006 were earlier governed by sections 34 and 35 of the U.P. Land Revenue Act. The provisions of section 34 of the U.P. Revenue Code 2006 and Section 35 of the UP Land Revenue Act are in Pari materia. In both these provisions, the emphasis, in my considered opinion, is on obtaining possession by transfer..."
29. In the orders impugned, there is no finding recorded either by the Appellate Court or by the Revisional Court as to who was in actual possession of the property in question and therefore liable to pay revenue to the Government. The orders impugned have placed reliance on the issue of whether Hadishul Nisha had remarried or not. The evidence produced by either side being inconclusive, still a finding was recorded that the petitioner had remarried and therefore was disentitled to the property of her late husband as per Sections 171 and 172 of the U.P.Z.A. & L.R. Act.
30. The orders impugned being clearly in excess of jurisdiction conferred on such authorities, and also against the statutory provisions of the U.P. Land Revenue Act, are set aside.
31. The writ petition is allowed. All consequences to follow.
Order Date :- 25 /06/2021 Rahul [Justice Sangeeta Chandra]