Allahabad High Court
Basdeo And 4 Ors. vs Board Of Revenue Thru Member Lucknow And ... on 12 November, 2025
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:72178
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT - C No. - 1000946 of 2004
Basdeo And 4 Ors.
.....Petitioner(s)
Versus
Board Of Revenue Thru Member Lucknow And 6 Ors.
.....Respondent(s)
Counsel for Petitioner(s)
:
P.V. Chaudhary, Raghvendra Kumar Singh-Ii
Counsel for Respondent(s)
:
C.S.C., Mithlesh, Mohd. Arif Khan, Shiva Nand Pandey, Udai Pratap Lal
Court No. - 4
HON'BLE IRSHAD ALI, J.
1. Heard Sri P.V. Chaudhary, learned counsel for the petitioners, learned Standing Counsel for the State-respondent and Sri Uday Pratap Singh, Advocate and Sri Shivanand Pandey, learned counsel for the intervenor.
2. By means of the present writ petition, the petitioners have prayed as under :-
"i. issue a writ of "Certiorari quashing the judgment and order dated 15.6.1994 passed by the opposite party no. 3; and judgment and order dated 30.8.1995 passed by the opposite party no.4 and the judgment and order dated 7.9.1999 passed by the opposite party no. 2 and the judgment and order dated 17.2.2004 passed by the opposite party no. 1; contained in ANNEXURES No. 5, 7, 8 & 9 respectively.
ii. ...
iii. ..."
3. Factual matrix of the case is that Late Daya Ram (father of the petitioners) was the tenure holder of the land in dispute. In consolidation operations by conciliation, he got recorded the name of his real brother Late Jai Ram alongwith him over 1/2 share and separate chaks were made. Late Jai Ram, who had no male issue except his wife Smt. Murta Devi and daughter Samundra Devi executed an unregistered Will in favour of the petitioners. Marginal witnesses were Ram Kewal S/o Ram Kishun and Raja Ram S/o Gaya Din. In the Will, he made full provision for his wife and daughter. Jai Ram expired on 17.10.1987 and after his death his widow came in clutches of her brother and got recorded the date of death as 12.8.1987 in place of 17.10.1987.
4. The petitioners on coming to know this fact, moved an application before the City Magistrate and got corrected the date of death as 17.10.1987. Smt. Murta Devi started contesting the succession of the agricultural land of Late Jai Ram and thus, the litigation started before the Naib Tehsildar (respondent No.5). Before the mutation court, the petitioners filed the original Will, number of rent receipts, scribe of the Will and also one witness namely Raja Ram, who proved the Will.
5. To prove the possession, the petitioners produced Saidul Hasan Khan. Smt. Murta Devi accepted that both the brothers (Daya Ram and Jai Ram i.e. the father as well as uncle of the petitioners) lived together and the last rites of Late Jai Ram were performed by the petitioners. Without being mutated, Murta Devi sold plot No.6; 1-10-17 (1 bigha 10 biswa 17 biswansi) to different 15 persons. She again executed another sale deed on 18.8.1999. In view of above, apprehension of Late Jai Ram came true. The case was fixed before the Naib Tehsildar on 14.6.1994 and was adjourned to 15.8.1994.
6. The petitioners had bonafide apprehension that they will not get justice, as such they filed a transfer application before the Collector and got the proceeding stayed on 14.6.1994.
7. The petitioners submitted the stay order before the Naib Tehsildar at 8 a.m. on 15.6.1994 as morning courts were in operation. This statement of fact has been made in paragraph 16 of the writ petition, which has not been denied in the counter affidavit.
8. Mutation order was passed against the petitioners at 7:30 a.m. on 15.6.1994. The mutation court decided the mutation matter as title case. The petitioners filed an appeal before the Sub Divisional Officer, who allowed the appeal and recorded the petitioners in the revenue record on 7.7.1995. One Lalita Devi (respondent No.7), who was purchaser, filed recall application. The Sub Divisional Officer recalled the aforesaid order dated 15.6.1994. The petitioners filed revision before the respondent No.2, who heard the arguments and fixed 9.4.1999 for orders on 5.4.1999. On 9.4.1999, no order was passed and date was fixed as 23.4.1999 and on the said date also, no order was passed on the order sheet. The order sheet further shows that the file was placed before the respondent No.3 on 27.6.1999 on which date, he heard the argument and fixed 7.9.1999 for orders.
9. On 27.6.1999, there was Sunday and no hearing is possible on Sunday. In support of the argument, the petitioners have brought on record, copy of the Calendar of the year 1999 (Annexure-15, page-17 of the paper book).
10. On its perusal, it is evident that on 27.6.1999 was Sunday, therefore, there was no possibility to hear the revision and to pass the order.
11. On the said basis, the respondent No.3 on 7.9.1999 made a reference to respondent No.1 (Board of Revenue), restored the order dated 15.6.1984, passed by the Naib Tehsildar. The matter came before the Board of Revenue (respondent No.1), who accepted the reference, without considering the arguments made and grounds raised by the petitioners and restored the order dated 15.6.1994 vide order dated 17.2.2004.
12. Submission of learned counsel for the petitioners is that the Naib Tehsildar passed mutation order in spite of stay order, passed on application for transfer. Next submission is that the respondent No.4 (Sub Divisional Officer), once having allowed the appeal filed by the petitioners, has no jurisdiction to recall the order that too on behest of a third party who was not a party to the litigation. Next submission is that the respondent No.3 allegedly heard the Lawyers of the parties and the reference order was passed apparently on a day which was a Sunday. The respondent No.1 overlooked the grounds of attack raised by the petitioners against the said reference. The order passed on reference is an order without taking into consideration that on 27.6.1999, there was Sunday and no hearing can taken place on that day.
13. Last submission is that the authority below have dealt with the mutation matter as if it was title dispute, whereas the mutation matter should be confined to discussion regarding possession only as well as the order against the petitioners has been passed in violation of principles of natural justice without hearing them.
14. On the other hand, learned counsel for the intervenor submitted that the impugned orders do not suffer from any infirmity or illegality and are just and valid orders. Their next submission is that they are sale deed holders which have been accepted in the year 1998 in their favour and on the said basis, title is in favour of the intervnor, therefore, no error apparent has been committed by the respondents while passing the impugned orders. Next submission is that the mutation proceeding is a summary proceeding and a regular suit is amenable against an order passed by the Naib Tehsildar on the recall application. It is submitted that the intervenor is the most affected party on the basis of sale deed executed in his favour and the intervenor has not been heard by the respondents.
15. In support of the submission advanced, learned counsel for the petitioners has placed reliance upon the following judgments :-
i. Rudra Pratap Vs. Board of Revenue [1975 AIR Allahabad 125]. Relevant paragraphs 2 and 3 are quoted below :-
"2. This Court in Prema Devi v. Joint Director of Consolidation, 1969 All LJ 253 = (AIR 1970 All 238) has held that the provisions of the Hindu Succession Act do not apply to agricultural land. Thus the view taken by the Board of Revenue is manifestly erroneous. The learned counsel for the opposite party does not contest this proposition, but he contends that this Court should not interfere with the order of the Board of Revenue under Article 226 of the Constitution. In support of this contention he has placed reliance upon a decision of this Court in Jaipal Minor v. The Board of Revenue, U.P. Allahabad. 1956 All LJ 807 (1) = (AIR 1957 All 205). In that case no doubt it was held that mutation proceedings ordinarily relate to the question of possession and do not decide the question of title for which there is a separate remedy by way of a suit and as such the High Court should not interfere in the order passed in mutation proceedings. But it was also observed in that case that this consideration should not be applied in cases where the question of title is also decided in mutation proceedings. In my opinion the present case belongs to that category of cases inasmuch as the Board of Revenue has proceeded to decide the question of title. The Board of Revenue has not ordered mutation in favour of the third respondent merely on the basis of her possession, but it has ordered mutation in her favour on the ground that she is entitled to succeed to the land in dispute whereas the petitioners are not so entitled. This finding even if not conclusive, does throw a shadow on the clear title of the petitioners. The petitioners, in my opinion, are entitled to seek the assistance of this Court to remove that shadow and it is not necessary to drive them to the remedy of a suit.
3. For the reasons stated above, the petition is allowed, the order of Board of Revenue dated 28-10-1969 (Annexure '3' to the writ petition) is quashed. The petitioners are entitled to their costs."
ii. Vijay Shankar Vs. Additional Commissioner [2015 (3) ADJ 186]. Relevant paragraph 15 is being quoted below :-
"15. Only following exceptions have been carved where remedy of writ under Article 226 of the Constitution of India can be said to be available:
"(i) order is absolutely without jurisdiction;
(ii) order passed is against the entry made in pursuance of the order passed by regular Court;
(iii) where Courts have not considered the matter on merits like Courts have passed orders on restoration application etc;
(iv) where order has been obtained by fraud or by fabricating the documents.""
iii. Smt. Hadisul Nisha Vs. Additional Commissioner [2021 (152) RD 426]. Relevant paragraph 19 is being quoted below :-
"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"
iv. Smt. Kalawati Vs. Board of Revenue [2022 (40) LCD 1051]. Relevant paragraphs 21 and 40 are being quoted as under :-
"21. The mutation proceedings being of a summary nature drawn on the basis of possession do not decide any question of title and the orders passed in such proceedings do not come in the way of a person in getting his rights adjudicated in a regular suit. It is for this reason that it has consistently been held that such petitions are not to be entertained in exercise of powers under Article 226 of the Constitution of India. The consistent legal position with regard to the nature of mutation proceedings, as has been held in the previous decisions, may be stated as follows :-
(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) mutation in revenue records does not have any presumptive value on the title and no ownership is conferred on the basis of such entries;
(v) the order of mutation does not in any way effect the title of the parties over the land in dispute; and
(vi) such orders or entries are not documents of title and are subject to decision of the competent court.
40. Having regard to the foregoing discussion the exceptions under which a writ petition may be entertained against orders passed in mutation proceedings would arise where :
(i) the order or proceedings are wholly without jurisdiction;
(ii) rights and title of the parties have already been decided by a competent court, and that has been varied in mutation proceedings;
(iii) mutation has been directed not on the basis of possession or on the basis of some title deed, but after entering into questions relating to entitlement to succeed the property, touching the merits of the rival claims;
(iv) rights have been created which are against provisions of any statute, or the entry itself confers a title by virtue of some statutory provision;
(v) the orders have been obtained on the basis of fraud or misrepresentation of facts, or by fabricating documents;
(vi) the order suffers from some patent jurisdictional error i.e. in cases where there is a lack of jurisdiction, excess of jurisdiction or abuse of jurisdiction;
(vii) there has been a violation of principles of natural justice."
v. H. Anjanappa Vs. A. Prabhakar [2025 AIR SC 924]. Relevant paragraphs 57 and 58 are being quoted below :-
"57. Having regard to the fact that the Respondent Nos. 1 and 2 respectively purchased the suit property during the pendency of the suit instituted for specific performance and that too, while the injunction against the original owner (transferor) was operating, the Respondent Nos. 1 and 2 respectively could not be said to have even made out any good case for grant of leave to appeal.
58. From a conspectus of all the aforesaid judgments, touching upon the present aspect, broadly, the following would emerge:
i. First, for the purpose of impleading a transferee pendente lite, the facts and circumstances should be gone into and basing on the necessary facts, the Court can permit such a party to come on record, either under Order I Rule 10 CPC or under Order XXII Rule 10 CPC, as a general principle;
ii. Secondly, a transferee pendente lite is not entitled to come on record as a matter of right;
iii. Thirdly, there is no absolute rule that such a transferee pendente lite, with the leave of the Court should, in all cases, be allowed to come on record as a party;
iv. Fourthly, the impleadment of a transferee pendente lite would depend upon the nature of the suit and appreciation of the material available on record;
v. Fifthly, where a transferee pendente lite does not ask for leave to come on record, that would obviously be at his peril, and the suit may be improperly conducted by the plaintiff on record;
vi. Sixthly, merely because such transferee pendente lite does not come on record, the concept of him (transferee pendente lite) not being bound by the judgment does not arise and consequently he would be bound by the result of the litigation, though he remains unrepresented;
vii. Seventhly, the sale transaction pendente lite is hit by the provisions of Section 52 of the Transfer of Property Act; and, viii. Eighthly, a transferee pendente lite, being an assignee of interest in the property, as envisaged under Order XXII Rule 10 CPC, can seek leave of the Court to come record on his own or at the instance of either party to the suit."
16. After having heard the rival submissions of learned counsel for the parties, I perused the material on record as well as the law reports cited by petitioners' counsel.
17. Late Daya Ram (father of the petitioners) was the tenure holder of the land in dispute. In consolidation operations by conciliation, he got recorded the name of his real brother Late Jai Ram alongwith him over 1/2 share and separate chaks were made. Late Jai Ram, who had no male issue except his wife Smt. Murta Devi and daughter Samundra Devi executed an unregistered Will in favour of the petitioners. Marginal witnesses were Ram Kewal S/o Ram Kishun and Raja Ram S/o Gaya Din. In the Will, he made full provision for his wife and daughter. Jai Ram expired on 17.10.1987 and after his death his widow came in clutches of her brother and got recorded the date of death as 12.8.1987 in place of 17.10.1987. The petitioners on coming to know this fact, moved an application before the City Magistrate and got corrected the date of death as 17.10.1987. Smt. Murta Devi started contesting the succession of the agricultural land of Late Jai Ram and thus, the litigation started before the Naib Tehsildar (respondent No.5). Before the mutation court, the petitioners filed the original Will, number of rent receipts, scribe of the Will and also one witness namely Raja Ram, who proved the Will.
18. To prove the possession, the petitioners produced Saidul Hasan Khan. Smt. Murta Devi accepted that both the brothers (Daya Ram and Jai Ram i.e. the father as well as uncle of the petitioners) lived together and the last rites of Late Jai Ram were performed by the petitioners. Without being mutated, Murta Devi sold plot No.6; 1-10-17 (1 bigha 10 biswa 17 biswansi) to different 15 persons. She again executed another sale deed on 18.8.1999. In view of above, apprehension of Late Jai Ram came true. The case was fixed before the Naib Tehsildar on 14.6.1994 and was adjourned to 15.8.1994. The petitioners had bonafide apprehension that they will not get justice, as such they filed a transfer application before the Collector and got the proceeding stayed on 14.6.1994. The petitioners submitted the stay order before the Naib Tehsildar at 8 a.m. on 15.6.1994 as morning courts were in operation. This statement of fact has been made in paragraph 16 of the writ petition, which has not been denied in the counter affidavit.
19. Mutation order was passed against the petitioners at 7:30 a.m. on 15.6.1994. The mutation court decided the mutation matter as title case. The petitioners filed an appeal before the Sub Divisional Officer, who allowed the appeal and recorded the petitioners in the revenue record on 7.7.1995. One Lalita Devi (respondent No.7), who was purchaser, filed recall application. The Sub Divisional Officer recalled the aforesaid order dated 15.6.1994. The petitioners filed revision before the respondent No.2, who heard the arguments and fixed 9.4.1999 for orders on 5.4.1999. On 9.4.1999, no order was passed and date was fixed as 23.4.1999 and on the said date also, no order was passed on the order sheet. The order sheet further shows that the file was placed before the respondent No.3 on 27.6.1999 on which date, he heard the argument and fixed 7.9.1999 for orders.
20. The Naib Tehsildar passed mutation order in spite of stay order, passed on application for transfer. The respondent No.4 (Sub Divisional Officer), once having allowed the appeal filed by the petitioners, has no jurisdiction to recall the order that too on behest of a third party who was not a party to the litigation. The respondent No.3 allegedly heard the Lawyers of the parties and the reference order was passed apparently on a day which was a Sunday. The respondent No.1 overlooked the grounds of attack raised by the petitioners against the said reference. The order passed on reference is an order without taking into consideration that on 27.6.1999, there was Sunday and no hearing can taken place on that day.
21. The authorities below have dealt with the mutation matter as if it was title dispute, whereas the mutation matter should be confined to discussion regarding possession only as well as the order against the petitioners has been passed in violation of principles of natural justice without hearing them. In view of the above, the impugned order is per se illegal and is not sustainable in law.
22. This Court in Prema Devi v. Joint Director of Consolidation, 1969 All LJ 253 = (AIR 1970 All 238) has held that the provisions of the Hindu Succession Act do not apply to agricultural land. Thus the view taken by the Board of Revenue is manifestly erroneous. In the case is hand, there is no doubt that the mutation proceeding ordinarily relates to the question of possession and do not decide the question of title for which there is a statutory remedy to file regular suit and as such the courts below have passed mutation order on the basis of question of title decided in mutation proceeding. In my opinion the present case belongs to that category of cases inasmuch as the Board of Revenue has proceeded to decide the question of title. The Board of Revenue has not ordered mutation in favour of the third respondent merely on the basis of her possession, but it has ordered mutation in her favour on the ground that she is entitled to succeed to the land in dispute whereas the petitioners are not so entitled. This finding even if not conclusive, does throw a shadow on the clear title of the petitioners. The petitioners, in my opinion, are entitled to seek the assistance of this Court to remove that shadow and it is not necessary to drive them to the remedy of a suit.
23. In the case of Vijay Shankar (Supra), the Court has observed that only following exceptions have been carved where remedy of writ under Article 226 of the Constitution of India can be said to be available: (i) order is absolutely without jurisdiction; (ii) order passed is against the entry made in pursuance of the order passed by regular Court; (iii) where Courts have not considered the matter on merits like Courts have passed orders on restoration application etc; (iv) where order has been obtained by fraud or by fabricating the documents.
24. In the case of Smt. Hadisul Nisha (Supra), it has been held that the Courts in a catena of 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, and (vi) Where the courts have not considered the matter on merits for example the courts have passed orders on restoration applications etc.
25. In the present case, 27.6.1999 was a Sunday and no hearing can take place on a Sunday, meaning thereby, the order was passed without hearing the petitioners, therefore, the same is liable to be set aside.
26. The mutation proceedings being of a summary nature drawn on the basis of possession do not decide any question of title and the orders passed in such proceedings do not come in the way of a person in getting his rights adjudicated in a regular suit. It is for this reason that it has consistently been held that such petitions are not to be entertained in exercise of powers under Article 226 of the Constitution of India. The consistent legal position with regard to the nature of mutation proceedings, as has been held in the previous decisions, may be stated as (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) mutation in revenue records does not have any presumptive value on the title and no ownership is conferred on the basis of such entries; (v) the order of mutation does not in any way effect the title of the parties over the land in dispute; and (vi) such orders or entries are not documents of title and are subject to decision of the competent court.
27. In the present case, no regular suit was filed by the respondents to decide the title vested in them. The rights and title of the parties depend on deciding the regular suit. The orders have been obtained on the basis of fraud and misrepresentation of fact as 27.6.1999 was a Sunday and on that date, no hearing can take place, therefore, the order vitiates in law and is liable to be set aside.
28. The revisional court as well as Board of Revenue have not considered that without hearing the petitioners on Sunday, the case has been decided ex-parte.
29. In view of the overall facts and circumstances of the case and the law reported above, the petitioners have made out a case for the grant of relief in exercise of power under Article 226 of the Constitution of India, therefore, the judgment and order dated 15.6.1994 passed by the opposite party no. 3; judgment and order dated 30.8.1995 passed by the opposite party no.4; the judgment and order dated 7.9.1999 passed by the opposite party no. 2 and the judgment and order dated 17.2.2004 passed by the opposite party no.1 being per se illegal without hearing the petitioners, thus they are hereby quashed. The writ petition succeeds and is allowed.
30. No order as to costs.
(Irshad Ali,J.) November 12, 2025 Gautam