Allahabad High Court
Awadhesh Singh vs Addl. Commissioner & Others on 4 August, 2017
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- WRIT - C No. - 13751 of 2005 Petitioner :- Awadhesh Singh Respondent :- Addl. Commissioner & Others Counsel for Petitioner :- B.L. Yadav,Arun Kumar Gupta,M.N.Singh,Mahesh Narain Singh,Pramod Kumar Sharma,Punit Kumar Upadhyay,Shubhra Singh Counsel for Respondent :- C.S.C.,R.P.Srivastava Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition has been filed by the petitioner for a writ of certiorari to be issued for quashing the order dated 23.9.1994 and 3.3.2000 passed by Naib Tahsildar and the order dated 21.1.2001 passed by Additional Sub-Divisional Magistrate, Basti and the order dated 20.1.2005 passed by the Additional Commissioner, Administration, Basti.
2. The case of the petitioner as argued by his counsel is that the father of the petitioner Ram Komal Singh died on 20.12.1985, leaving behind the petitioner as his only son and six daughters. Respondent no. 5, Smt. Asha Devi, is one of the married daughters. The name of the petitioner was mutated in the revenue records over other properties situated in district Gorakhpur. The land in dispute is situated in district Basti, namely, Gata No. 21, Khata No. 58 measuring 8 Biswas, 5 Biswansis and 8 Dhoor. The respondent no.5 (Smt. Asha Devi) wife of Sri Kedar Nath Singh filed a mutation application before the Court of Naib Tahsildar, Kaptanganj (Harraiya), District Basti on 26.7.1994 on the basis of a forged and concocted Will dated 24.1.1994. This mutation application was allowed without serving notice on the petitioner on 23.9.1994. An application for recall of the order dated 23.09.1994 was moved by the petitioner on the ground that he had no notice of such application being moved. His father had not written any Will in favour of his sister and since his father died on 20.12.1985, the Will could not have been executed on 24.1.1994.
3. This recall application was rejected on 3.3.2000, against which order passed by the Naib Tahsildar, Gaur (Harraiya) district Basti, the petitioner preferred an Appeal No. 38 of 2001 (Awadhesh Singh Vs. Asha Singh) under Section 210 of the U.P. Land Revenue Act before the Sub-Divisional Magistrate, Basti. This appeal was dismissed on 21.8.2001, against which the petitioner filed a revision under Section 219. The Additional Commissioner (Administration), Basti erroneously dismissed the aforesaid revision by order dated 20.1.2005.
4. It is the case set up by the petitioner that the order passed on the mutation proceedings filed by Naib Tahsildar was obtained by fraud, therefore, the recall application was wrongly rejected. The appeal was dismissed without any basis and also the revision thereafter without application of mind.
5. It is alleged that the father of the petitioner was living with the petitioner till the time of his death and he had never lived with respondent no.5 in district Basti, no Will was executed by him before his death.
6. The petitioner's sister Asha Devi under the influence of her husband had filed the mutation application after 9 years of death of his father, Ram Komal Singh, and it was thus not maintainable. The petitioner alone is the legal heir being only son, and his name has been mutated in the revenue records with regard to property of village Bhagaura, Tappa Gahasar, district Gorakhpur. It is only with respect to one property i.e. the land in dispute, Plot No. 21 at Basti, that the dispute has been raised by Smt. Asha Devi as the land in question is situated in her village. Smt. Asha Devi, his sister did not give any statement in support of the application made by her before the learned Court below and the Will deed in question was also not proved in the Court of Naib Tahsildar as per Section 67 of the Indian Evidence Act. No expert opinion was called in respect of signatures and handwriting of the petitioner who was alleged to be the deed writer. The petitioner had in fact not written out the alleged Will, as made out by the respondent no. 5 in her application.
7. When the writ petition was filed and taken up as fresh, this Court on the basis of argument raised by learned counsel for the petitioner had directed for maintenance of status-quo over the land in dispute during the pendency of the writ petition.
8. Subsequently, a counter affidavit was filed along with stay vacation application by respondent no.5 wherein it was stated that the application in mutation proceeding was moved in the full knowledge of the petitioner as he had also joined as one of the applicants in the said mutation application. The land in dispute is situated in village Paliwarpur Tappa Nawai, Tahsil Harraiya, district Basti and the father of the petitioner had executed the Will with the consent of the petitioner. Also, the Will was written out by the petitioner himself on 24.1.1984. The land was situated in the village of respondent no. 5 and her father used to come and stay with her and out of love and affection and with the full knowledge of the petitioner, half of the plot in dispute was proposed to be transferred in favour of respondent no. 5, and half of the plot in dispute was proposed to be transferred in the name of the petitioner by his father Ram Komal Singh, to which the petitioner also consented and therefore, the Will was written in his own handwriting.
9. It has further been alleged in the counter affidavit that the marginal witnesses of the Will namely Yaar Mohd and Asha Ram son of Jaishree Prasad was examined by Naib Tahsildar before orders were passed on 23.9.1994 for mutating the name of the petitioner as well as the respondent no.5 over the land in dispute. The recall application was rightly rejected by Naib Tahsildar on 3.3.2000, after examining the records, and finding therein that the petitioner was jointly the applicant in the mutation proceedings, and therefore he had full acknowledge and had consented to the mutation application.
10. In the appeal, the Sub-Divisional Magistrate had also considered the whole record and came to a conclusion, rightly, that the succession was initially undisputed when the mutation application was moved. Even if service was not affected on the petitioner, the fact remains that the petitioner's name was also mutated on half of the Plot No. 21, and he was not put to irreparable loss by rejection of his recall application.
11. In so far as the Revisional Court order dated 20.1.2005 is concerned, the affidavit filed on behalf of respondent no. 5 states that the Revisional Court's jurisdiction was correctly exercised by the Additional Commissioner. If it was the petitioner's case that the signatures of his father and that of himself as writer of the will deed dated 24.1.1984 were disputed and forged, then the petitioner should have moved an application for expert opinion, but he did not move any such application before the learned Courts below.
12. Several affidavits have been exchanged between the parties to the dispute and the respondents have brought on record a copy of the Will dated 24.1.1984 and statements of witnesses Asha Ram and Yaar Mohd before the Naib Tahsildar on 20.9.1994 to substantiate their case that merely wrong mentioning of date on Will as 24.1.1994 in the order impugned would have no effect as the Will was actually executed on 20.1.1984 and the petitioner himself has written out the Will as desired by his father.
13. On the other hand, the petitioner has also filed several affidavits which bring on record, the recall application moved by him before the Naib Tahsildar on 17.10.1996, and his statement and also the written arguments filed in the Court of learned Additional Commissioner, to allege that the Will was never executed by his father Ram Komal Singh, and it does not carry the thumb impression of his father, the Will has not been written in the handwriting of the petitioner, nor he has signed it as scribe. Under Section 171 of the U.P. Z.A. & L.R. Act, the petitioner being the only son was the only legal heir of Ram Komal Singh and therefore, his name was mutated on all other properties situated in district Gorakhpur. It is with respect to property situated in district Basti where respondent no. 5 was married and was living i.e. village Paliwarpur in Haraiyya the dispute arose.
14. This Court finds from a perusal of the Revisional order that initially when the application was filed on 26.7.1994 under Section 34 by the respondent no.5 under the signatures of respondent no.5 alone, it was for giving effect to the Will dated 24.1.1984 (erroneously recorded as 24.1.1994) as co tenure-holder of Gata No. 21 Khata No. 58. The basis of claiming the mutation was succession in terms of the unregistered Will executed by Ram Komal Singh father of the petitioner and respondent no.5. Although the application was signed by the respondent no.5 only, the Vakalatnama in favour of Sri Rakesh Kumar Singh, their Advocate was signed by the petitioner also. This fact has been recorded by the Revisional Court in its judgment and order dated 20.1.2005. After examining the record, it was found by the Additional Commissioner that the Vakalatnama dated 18.7.1994 in favour of Rakesh Kumar Singh, Advocate had the signatures of petitioner also.
15. The Additional Commissioner has also noted that although the Naib Tahsildar did not record the statement of Asha Devi but only recorded the statements of marginal witnesses on 20.9.1994, at the time of receiving back the evidence produced to show undisputed succession, the signatures of Asha Devi were taken on the file.
16. Counsel for the petitioner had argued before the Revisional Court on the basis of record that from the file itself, it is evident that since signatures of the petitioner were not present on the application, it cannot be said that the application under Section 34 was filed by the petitioner and respondent no.5 jointly. The Revisional Court after considering this fact has taken into account also the fact that Sri Rakesh Kumar Singh, Advocate had been engaged both by the petitioner and Smt. Asha Devi and his signatures were there on the Vakalatnama. There is no whisper in either the Restoration / Recall application nor in the Appeal, nor in the Revision with regard to the signatures of the petitioner not being there on Vakalatnama of the Advocate concerned. There is no allegation that the signature of the petitioner was forged. Also, no action has been taken against the Advocate by the petitioner.
17. The Revisional Court has thus found that initially when the application was filed by the petitioner and the respondent no.5 it was a case of undisputed succession under Section 34. The Statements of marginal witnesses to the unregistered Will were recorded by the Naib Tahsildar and he had also taken into account that the application had been made by applicants who were beneficiaries of half share each of the land in dispute, hence orders were passed on 23.9.1994. Later on, the petitioner turned greedy and moved a recall application dated 17.10.1996 for recall of the order dated 23.9.1994. However, in this application, he has not mentioned anywhere that the Advocate concerned, Sri Rakesh Kumar Singh had not been engaged by him and his signatures on the Vakalatnama of the Advocate were forged.
18. On the other hand, the Revisional Court found that the case of the respondent no.5 was on a much better footing. She did not resile from the application made before the Naib Tahsildar for mutation even through her signatures were not there on the Vakalatnama of the Advocate concerned, Sri Rakesh Kumar Singh. She did not engage Sri Rakesh Kumar Singh, who filed the application jointly on behalf of respondent no.5 and Awadhesh Singh (petitioner).
19. The Revisional Court has also dealt with the respondent no.5's contention that had she wanted to prepare a forged will and claim succession on the basis thereof, she could have done the same on the whole of the property of late Ram Komal Singh i.e. land situated in district Gorakhpur, as well as the land which was situated in district Basti. The Revisional Court also found that there were no discrepancies visible in the signatures made on the Vakalatnama by the petitioner and on the application for Restoration or on the Appeal. They all seemed to be of one and the same person. The Revisional Court has thus dismissed the revision.
20. At the time of hearing of the aforesaid writ petition in this Court a question arose with regard to maintainability of the writ petition challenging mutation orders passed in mutation proceedings alone.
21. The Learned counsel for the petitioner has relied upon the following cases:-
(i) Pushpavathi Vs. Chandraraja Kadamba 1973 (3) SCC 291
(ii) Kalyan Singh Vs. Smt. Chhoti & others AIR 1990 SC 396
(iii) Vishwa Nath & another Vs. Board of Revenue 2004 (4) AWC 3141
22. On the other hand, learned counsel for the respondent no.5 has relied upon a Division Bench judgment of this Court rendered in the case of Jaipal Vs. Board of Revenue 1956 AllLJ 807, and on orders of Hon'ble Single Judges in the following cases:-
(i) Sri Lal Bachan Vs. Board of Revenue 2002 (1) AWC 169
(ii) Bindeshwari Vs. Board of Revenue & others 2002 (1) AWC 498
(iii) Umesh Chandra & others Vs. Deputy Director of Consolidation & others 2003 (4) AWC 2714
(iv) Jagdish Narain & others Vs. Board of Revenue & others 2007 (1) ADJ 434 (All)
(v) Buddh Pal Singh Vs. State of U.P. & others 2012 (5) ADJ 266
23. Two unreported judgments in Writ-C No. 25961 of 2008 (Smt. Anisa Khan Vs. State of U.P. & others decided on 29.7.2010, and in Writ Petition No. 7719 of 2014 (Vijay Shankar Vs. Addl. Commissioner (Administrative) Lucknow Division & others decided on 9.2.2015 have also been cited.
24. I shall consider the judgments cited by the learned counsel for the petitioner 'first' In the case of Pushpavathi (supra) the Hon'ble Supreme Court has observed that it is for the propounder of the Will to prove it, and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signatures of the testator as required by law is sufficient, to discharge the onus which is placed upon the propounder of the Will. However, where there are suspicious circumstances the propounder of the will has to explain them away to the satisfaction of the Court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the depositions made in the will being unnatural, improbable or unfair in the light of the relevant circumstances. or there might be other indications in the Will to show that the testator's mind was not free. If the propounder succeeds in removing the suspicious circumstances, the Court would have to give effect to the Will, even if the Will might be unnatural in the sense it has cut off wholly or in part, near relations to the testator. Where the signature of the testator is doubted as a forged signature and the Will comes from the custody of a person who is the major beneficiary under the Will, and it is unregistered, then the Court is to undertake a detailed consideration of evidence of all witnesses as well as surrounding circumstances to satisfy itself that the Will had been executed in accordance with law by the testator.
25. There is no doubt with the proposition as mentioned in the case of Pushpavathi (supra) but the fact remains that the said judgment was rendered in an appeal from a judgment and decree of Mysore High Court in Regular First Appeal No. 73 of 1962 by which the decree passed by the trial court in Original Suit No. 53 of 1961 was reversed. The suit was for possession of immovable properties and mesne profits. The High Court had considered the evidence with regard to execution of the Will and also the contention that attesting witnesses were independent and sufficiently disinterested witnesses, but had repelled the contention that the antecedents of these persons were not such that they would be party to a fabricated Will.
26. In the case of Kalyan Singh Vs. Smt. Chhoti & others AIR 1990 SC 396, the Supreme Court was again considering the judgment of Rajasthan High Court in a Second Appeal. The trial court considering the evidence produced by the parties decreed the suit declaring the plaintiff as owner of the suit property. The learned District Judge dismissed the appeal. In the Second Appeal that defendant sought to produce additional evidence. The principal question argued before the High Court was about genuineness of the Will and the sale deed which formed the foundation of the plaintiff's title to the property, and the High Court rejected both the documents. The Will was disregarded in view of suspicious circumstances surrounding it, but instead of allowing the appeal, the High Court refused to interfere in the decree of the learned Court below. The defendant therefore approached the Supreme Court.
27. Counsel for the petitioner has relied upon para 20 of the said judgment in Kalyan Singh (supra), wherein the Supreme Court observed that the executor of the Will cannot be called to deny or to explain the circumstances in which he had executed the will. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will, and it would be open to the Court to consider the circumstances brought out in the evidence produced by the propounder, but also the surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the parties.
28. In the case of Vishwa Nath & another Vs. Board of Revenue & others 2004 (4) AWC 3141, an Hon'ble Judge of this Court was considering the preliminary objection with regard to entertaining the writ petition arising out of proceedings under Section 34 of the U.P. Land Revenue Act, 1901, which are undoubtedly summary proceedings. This Court considered Sections 34 & 35 of the U.P. Land Revenue Act, and also Sections 40 & 40(A) of the U.P. Land Revenue Act and also the provisions of U.P. Revenue Court Manual. In a disputed case, the Tahsildar shall only make a preliminary enquiry to determine the dispute, and its nature, before referring the case to the Collector for disposal under Section 35. The Collector shall then make a summary enquiry and shall take such further evidence as the parties were desirous to produce and as may be necessary in his opinion for completing the enquiry including evidence as recorded by the Tahsildar or a qualified Naib Tahsildar. It is the Court of the Collector which takes evidence, it has jurisdiction to decide the objection raised. The report of mutation can be given on the basis of transfer, or in the case of succession (through a Will registered or unregistered), the Court is empowered to take evidence of both the parties and decide the dispute as to whether the deed was executed by person claimed to have executed the deed or not, and in case of a registered Will, if an objection is taken, then the Court is bound to look into such objection and take evidence. But for ignoring a registered document, there have to be valid reasons, and a registered document cannot be ignored on insufficient grounds.
29. The Court has observed that it was within the jurisdiction of the Collector on the basis of evidence brought before it to either accept the Will or not accept the Will. However, the Court also came to a conclusion, as has been mentioned in paragraph 17, that with regard to principle of construing a Will, since findings given in the mutation proceedings are only summary, subject to decision by Competent Court, it is open to the petitioners to establish their right on the basis of Will in a Competent Court.
30. This Court observed on the basis of judgment in Jaipal case (supra) and referring to other decision also, that the High Court does not interfere with the order made by the Board of Revenue regarding recording of names. Only one exception was noticed i.e. cases in which entry itself confers a title on the petitioner by virtue of provisions of U.P. Z.A. & L.R. Act. No such proposition was laid down by the Division Bench that whenever any decision on title is given, this Court may interfere.
31. This Court further observed that from the scheme of U.P. Land Revenue Act and the Rules, it is clear that the decision of the dispute by Tahsildar on necessary inquiry and evidence has to be only with regard to prima-facie title, when he is unable to decide possession. Findings in summary proceedings have no bearing on the adjudication of title by the competent court, nor the findings given in mutation proceedings can be treated to be findings establishing any title. This Court held that the judgment cited by the petitioner therein, were on Indian Succession Act, 1925 with regard to registered Will. There is no dispute with regard to principles laid down for proof of Will under Succession Act. This Court thereafter dismissed the writ petition by observing that "however findings recorded by the mutation courts are findings only in summary proceedings, and have no bearing when the title is adjudicated by the competent court on the basis of right claimed by the petitioner. In view of the proposition laid down in Lal Bachan Vs. Board of Revenue & others 2002 (1) AWC 169, 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 the U.P. Land Revenue Act .............".
32. It is apparent from a perusal of the judgment rendered by this Court in the case of Vishwa Nath (supra) relied upon by the petitioner himself that this Court would not interfere in orders arising out of mutation proceedings. The only exception being when such an order conferred a title under the provisions of the U.P. Z.A. & L.R. Act.
33. The question before this Court is therefore is whether such an order passed by the Revenue Court in mutation application confers title upon the respondent no.5?
34. Section 171 of the U.P. Z.A. & L.R. Act has dealt with the manner in which a Bhumidhar's or Asami's, land when he dies intestate shall devolve upon his heirs. Since the petitioner is the only male lineal descendant, his right remains unaffected. Moreso, when by the orders impugned, the petitioner has been given half share of the land in dispute.
35. The judgments relied upon by the learned counsel for the petitioner are to be considered in the light of decision by the Division Bench of this Court in the case of Jaipal Vs. Board of Revenue 1956 ALJ 807. The writ petition had arisen out of orders passed in mutation proceedings made on application under Section 34 of the U.P. Land Revenue Act. The Court observed that it has been the consistent practice of the High Court not to interfere in order made by Board of Revenue in cases in which the only question at issue is whether the name of the should be entered in the record of rights.
36. The Court observed that record is maintained for revenue purposes and an entry therein had reference only to possession. Such entry does not ordinarily confer upon any person in whose favour any title to the property in question, and his right to establish his title 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. Z.A. & L.R. Act.
37. Relying upon the said judgment, this Court in the case of Lal Bachan Vs. Board of Revenue & others 2002 (1) AWC 169 has observed that although it cannot be held under all circumstances that writ petition arising out of the mutation proceedings are not maintainable, but this Court does not entertain the writ petition under Article 226 of the Constitution due to the reason that the parties have a right to get their title adjudicated by a regular suit and the orders passed in mutation proceedings are summary in nature.
38. This Court has again in the case of Bindeshwari Vs. Board of Revenue & others 2002 (1) AWC 498 reiterated what has been held in the case of Lal Bachan (supra). Under Section 34, an application can be made both on the basis of transfer or on the basis of succession.
39. In the case of Umesh Chandra & others Vs. Deputy Director of Consolidation 2003 (4) AWC 2714, this Court relied upon its earlier decision and held that mutation proceedings are only summary in nature and they do not have any effect on title which the aggrieved party can agitate in a regular proceedings. The consolidation proceedings are regular proceedings, and any order passed in mutation proceedings, would not be an impediment in adjudication on merits by the Consolidation Court.
40. In the case of Jagdish Narain & others Vs. Board of Revenue & others 2007 (1) ADJ 434 this Court has reiterated the same principle.
41. In the case of Buddh Pal Singh Vs. State of U.P. & others 2012 (5) ADJ 266, this Court in paragraphs 4, 5, 6 & 7 observed thus:-
(4) In sum and substance proceedings of mutation, correction of revenue entries or settlement of disputes as to entries or in annual registers as prescribed under Section 33 of the Act initiated or decided under Sections 34/35, 39, 40 & 54 of the Act are all summary in nature subject to determination of rights of the parties by the competent court of jurisdiction.
(5) Section 40-A of the Act lays down that orders passed under Sections 35, 39, 40 or 54 of the Act, apart from certain other orders, would not be a bar for instituting any suit in a competent court for relief on the basis of a right in the holding. It means that irrespective of the orders passed aforesaid under the provisions, parties are free to get their rights on a holding adjudicated before competent court.
(6) The law is well-settled that:
(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 and are subject to decision of the competent court.
7. It is equally settled that the orders for mutation are passed on the basis of the possession of the parties and since no substantive rights of the parties are decided in mutation proceedings, ordinarily a writ petition is not maintainable in respect of orders passed in mutation proceedings unless found to be totally without jurisdiction or contrary to the title already decided by the competent court. The parties are always free to get their rights in respect of the disputed land adjudicated by competent court.
42. Similar views were expressed in the two unreported judgments of this Court in the case of Smt. Anisa Khan (supra) decided on 29.7.2010 and Vijay Shanker (supra) decided on 9.2.2015.
43. I do not find any good ground to interfere in the orders passed by the Revenue Courts, moreso, when it is settled law that this Court should not interfere in writ jurisdiction in the orders passed in summary proceedings by Revenue Courts. It is always open to the parties to get their rights determined before the Competent Court of Law in regular proceedings.
44. The writ petition is dismissed as devoid of merits. No order as to costs.
Order Date :-04.08.2017 Arif