Allahabad High Court
Shambhu Narayan Singh And 2 Others vs State Of U P And 3 Others on 22 October, 2019
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved Court No. - 9 Case :- WRIT - C No. - 24136 of 2019 Petitioner :- Shambhu Narayan Singh And 2 Others Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Ram Kishore Pandey,Himanshu Raghav Pandey Counsel for Respondent :- C.S.C.,Adil Jamal,Ram Raksha Tiwari connect with Case :- WRIT - C No. - 27775 of 2019 Petitioner :- Shambhu Narayan Singh And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ram Kishore Pandey,Himanshu Raghav Pandey Counsel for Respondent :- C.S.C.,Chandra Prakash Kushwaha Hon'ble Anjani Kumar Mishra,J.
Heard Shri Ram Kishore Pandey, learned counsel for the petitioners and Shri Vishnu Gupta, Senior Advocate assisted by Shri Adil Jamal for the respondent no.4 in both the writ petitions, which arise out of mutation proceedings.
In Writ Petition No.24136 of 2019, petitioners have sought a writ of certiorari for quashing an order dated 07.10.2017 passed by the Tehsildar, respondent no.3, whereby, respondent no.4,Yograj Singh was ordered to be mutated over plot no.298 area 0.3575 hectare situated in village Gureh, Pargana, Tehsil and District Banda. The order dated 11.04.2019, whereby the consequential revision filed by the petitioner has been dismissed by the Commissioner, respondent no.2 is also under challenge.
In Writ Petition No.27775 of 2019, petitioner seeks a writ of certiorari for quashing the order dated 24.12.2018 passed by the Tehsildar, Banda whereby a restoration application filed by the respondent no.4 against the mutation passed in favour of the petitioner on 09.12.2017, regarding the same plot no.298 was allowed and the order dated 17.07.2019, whereby the consequential revision filed by the petitioner has been dismissed.
The facts, relevant for deciding the controversy in these writ petitions are that the plot no.298 was the joint holding of two brothers, namely, Jogendra Pal Singh and Surendra Pal Singh, both having half share therein. This fact is not in dispute between the parties.
The petitioners, in these writ petitions claims on the basis of a registered sale deed executed by the heirs of Surendra Pal Singh regarding their share in this plot, that is half share.
The respondent no.4, on the other hand, claimed mutation on the basis of a will executed in his favour by the other joint holder, namely, Jogender Pal Singh.
On the death of Jogendra Pal Singh, a mutation case was filed by the respondent no.4 claiming on the basis of a will in his favour. This mutation application was allowed vide order dated 07.10.2017. This order was challenged by the petitioner on the ground that in the mutation application filed, copy whereof was served upon the petitioner, was with regard to plot no.292. The mutation order has been passed regarding plot no.298. Mutation was never claimed over plot no.298. The mutation order is therefore, illegal and cannot be sustained.
With regard to the above contention, submission of Shri Vishnu Gupta, learned Senior Advocate is that there was no partition between the original holders of the plot no.298. The two brothers, Jogendra Pal Singh and Surendra Pal Singh had half share each, therein. The heirs of Surendra Pal Singh have executed a sale deed in favour of the petitioner. However, the sale deed is of a specific portion situate along the road, which was not permissible as the plot in question had not been partitioned between the co-tenure holders. It is only a post partition that co-tenure holder could execute a sale deed of a specific portion of the plot. In absence of any partition, the sale deed at best of half an undivided share.
It appears that on the basis of the sale deed executed by the heirs of Surendra Pal Singh in favour of the petitioner, he was ordered to be mutated vide order dated 09.12.2017 passed by the Tehsildar.
Against this mutation order, the respondent no.4 filed a recall application alleging that he being a co-tenure holder having been mutated, vide order dated 07.10.2017, was a necessary party to the mutation case filed by the petitioner. The mutation order had been passed without any notice or information to him and without hearing him. It was therefore, liable to be recalled being exparte.
The restoration application aforesaid was contested by the petitioner alleging that the applicant respondent no.4, had no concern with the sale deed in his favour. The restoration application therefore, was not maintainable and the remedy if any available to the respondent no.4 was by means of an appeal.
However, the trial Court finding that the mutation order in favour of the petitioner dated 09.12.2017 was an exparte order and that no notice had been served upon the respondent no.4 allowed his restoration application and restored the mutation case to its original number.
The consequential revision filed by the petitioner has been dismissed, vide order dated 24.12.2018 holding that the mutation case had merely been restored to its original number for granting a necessary party, an opportunity of hearing. Therefore, no interference had called for as the petitioners-revisionists still had every opportunity of canvassing their claim in the mutation case filed by them before the Tehsildar.
The contention of Shri Vishnu Gupta is that Jogendra Pal Singh was possessed of only a single plot, namely, plot no.298 in village Gureh. In the will, this plot was wrongly mentioned as 292 instead of no.298, which was its correct number.
Jogendra Pal Singh had executed a will regarding the land in village Gureh as well as the land in other villages. On the basis of the said will, as many as four mutation cases were filed. All these four mutation cases were consolidated and the on the basis of a compromise between the parties, it was agreed that the mutation order with regard to village Gureh, should be with regard to plot no.298, which alone was the holding of the testator and that plot no.292 was wrongly mentioned in the will. The wrong number of plot in question was mentioned in the original mutation application filed by respondent no.4 due to the mistake in the will.
Accordingly, the mutation order dated 07.10.2017 in favour of the respondent no.4 was passed with regard to plot no.298.
The contention of counsel for the petitioner is that this change in number was malafide and fraudulent and is without any basis. It is malafide, also because the mutation order in favour of the respondent does not, in any manner, infringe upon the rights of the petitioner, who is a transferee from the heirs of Surendra Pal Singh, who had half share in this plot, the other half share belonging to the testator, Jogendra Pal Singh.
I have considered the submissions made by counsel for the parties and perused the record.
Since, it is admitted to the parties that Jogendra Pal Singh and his brother Surendra Pal Singh were co-tenure holders of plot no.298, to the extent half share each situated in village Gureh, the instant litigation totally frivolous, without any basis and sheer abuse of the process of the Court.
The parties claim to distinct and separate shares in the plot in question. The problem and litigation appears to have arisen only beause, the heirs of Surendra Pal Singh have allegedly executed a sale deed in favour of the petitioner regarding a specific portion of an undivided plot. This aspect appears to have led to the instant litigation but, the same is not material for the purposes of mutation.
For the same reason, the orders impugned in the writ petition no.24136 of 2019 are perfectly justified. The revisional Court has rightly dismissed the revision of the petitioner holding that he has no concern with the mutation order dated 07.10.2017 passed in favour of the respondent no.4. On the basis of the registered will executed by Jogendra Pal Singh.
I am in total agreement with the reasoning and the finding given in the impugned revisional order. Writ Petition No.24136 of 2019 is therefore, without merit and is liable to be dismissed.
In so far as, writ petition no.27775 of 2019 is concerned, here again the mutation order passed in favour of the petitioner has been recalled on an application filed by respondent no.4 on a technical plea. The technical plea though justified in itself, this Court is of the opinion that since, the mutation order in favour of the petitioner was with regard to a distinct and separate share of plot no.298, the recall application should not have been filed by the respondent no.4, who had no concern with the share claimed by petitioner.
However, since the recall application was filed, has been allowed and the consequential revision was also being dismissed, this Court consider it appropriate to direct the Tehsildar before whom, the mutation application filed by the petitioner stands revived, to dispose it of after hearing the parties, expeditiously and positively within a period of six weeks from the date a certified copy of this order is filed before him, keeping in mind the observations made in the body of this judgement.
This Court is not interfering with the orders impugned in this writ petition no.27775 of 2019 mainly on the ground that the proceedings wherefrom arises, are summary mutation proceedings, which do not determine the title of the parties thereto and because technically notice was required to be served upon all the co-tenure holders of plot no.298, for mutation over which an application was filed and is now under consideration.
Accordingly, Writ Petition No.24136 of 2019 is dismissed and Writ Petition No.27775 of 2019 is disposed of with the observations/ directions made herein-above.
Order Date :- 22.10.2019 RKM