Allahabad High Court
Ram Udit vs State Of U.P. Thru. Prin. Secy. Revenue, ... on 9 January, 2024
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:2477 Court No. - 8 Case :- WRIT - C No. - 9149 of 2022 Petitioner :- Ram Udit Respondent :- State Of U.P. Thru. Prin. Secy. Revenue, Lko And Others Counsel for Petitioner :- Ranvijay Singh,Atul Kumar Singh,Shilpi Rai Counsel for Respondent :- C.S.C. Hon'ble Jaspreet Singh,J.
1. Heard Shri Ranvijay Singh, learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.
2. By means of the instant petition, the petitioner assails the order dated 18.11.2022 passed by the respondent no.2 revisional authority whereby the revision of the petitioner was dismissed affirming the order dated 10.05.2016 as well as the order dated 21.11.2000 by virtue of which the mutation order passed in favour of the private respondents no.5 to 11 has been affirmed.
3. Submission of the learned counsel for the petitioner is two fold, it is primarily urged that in proceedings for mutation once there is a Will of the testator then the provision of Section 171 of the U.P. Z.A. & L.R. Act which relates to succession is excluded and it would be the Will which would prevail and in the aforesaid circumstances where the petitioner had claimed on the basis of a Will dated 29.09.1980 which was duly proved in accordance of Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act, accordingly the authorities below have committed an error in not appreciating the aforesaid aspect while dismissing the claim of the petitioner.
4. It has further been submitted that the witnesses who were produced also helped the case of the petitioner; inasmuch as it was found that the petitioner was in possession and in such mutation proceedings finding of possession if rendered by the authority would have significance and ignoring the aforesaid aspect, the Courts have committed an error which has prompted the petitioner to approach this Court.
5. Learned counsel for the petitioner has also relied upon a decision of a Co-ordinate Bench of this Court of Smt. Imrat Jahan and others Vs. 8th Additional Distgrict Judge, 1998 (1) AWC 544 and reliance has been placed on paragraphs 7 to 10 of the said report.
6. Learned counsel for the petitioner has also urged that a supplementary-affidavit was filed and certain documents were filed to indicate that the private respondent who was claiming to be the daughter of the testator this fact also was shrouded by suspicious circumstances which were not repelled by the private respondents.
7. Having considered the aforesaid submissions and from the perusal of the material on record.
8. It is now not in dispute that the Court does not entertain petitions under Article 226 of the Constitution of India emanating from mutation proceedings which are only summary in nature as no right or title is finally decided in such proceedings.
9. It will also be relevant to notice that the Co-ordinate Bench of this Court in the case of Smt. Kalawati Vs. Board of Revenue and others, 2022 (3) AWC 2338 has taken note of the instances wherein the Court may entertain a petition under Article 226 of the Constitution of India. At this stage, it will also be relevant to notice the decision of the Apex Court in the case of Jitender Singh Vs. State of M.P. and others 2021 SCC Online SC 802 wherein it has been held as under:-
"...6. It is not in dispute that the dispute is with respect to mutation entry in the revenue records. The petitioner herein submitted an application to mutate his name on the basis of the alleged Will dated 20.05.1998 executed by Smt. Ananti Bai. Even according to the petitioner also, Smt. Ananti Bai died on 27.08.2011. From the record it emerges that the application before the Nayab Tehsildar was made on 9.8.2011, i.e., before the death of Smt. Ananti bai. It cannot be disputed that the right on the basis of the will can be claimed only after the death of the executant of the will. Even the will itself has been disputed. Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made.
7. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
8. In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only? fiscal purpose?, i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only decided by a competent civil curt. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 56; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019 10 SCC 259; and Ajit Kaur v. Darashna Singh (2019) 13 SCC 70.
9. In view of the above settled proposition of law laid down by this Court, it cannot be said that the High Court has committed any error in setting aside the order passed by the revenue authorities directing to mutate the name of the petitioner herein in the revenue records on the basis of the alleged will dated 20.05.1998 and relegating the petitioner to approach the appropriate court to crystalise his rights on the basis of the alleged will dated 20.05.1998. We are in complete agreement with the view taken by the High Court.
10. The special leave petition is accordingly dismissed."
10. Having taken note of the aforesaid dictum and applying it to the facts of the instant case, it would indicate that the private respondents are claiming right to the property on the basis of succession whereas the petitioner has set up a contrary claim on the basis of Will said to have been executed by the deceased. Merely to say that the attesting witnesses have been examined, therefore, the Will in itself is proved is not quite correct; inasmuch as the proof of the Will is to be considered on the regular side and in summary proceedings such as mutation cases where only a prima facie test is applied leaving contentious issues to be finally adjudicated on the regular side, it is only for prima facie ascertainment the right of a party to claim on the basis of Will is to be examined.
11. In the instant case, the Tehsildar in its order dated 21.112000 did not find favour with the Will rather it was noticed that the Will was shrouded by suspicious circumstances as the testator is said to have allegedly executed the Will without disclosing about his near relatives. The Tehsildar also has recorded a categoric finding that the possession is also with the private respondents.
12. This has been assailed in appeal and the appellate court also noticing the aforesaid facts including the distant relationship of the deceased with the present petitioner and it did not find favour and it affirmed the order passed by the Tehsildar dismissing the appeal on 10.05.2016. The order passed by the revisional Authority also resonates the sentiment of the appellate authority while dismissing the revision.
13. In light of the aforesaid facts and circumstances where there are concurrent finding in favour of the private respondent and that too in proceedings for mutation, this Court is not inclined to interfere. No such glaring error has been pointed out which may being the case within the exception as carved out by this Court in Smt. Kalawati (supra). Moreover, the contention that once a Will is propounded then the general order of succession is ruled out is not correct as it is the general order of succession while governs the rights of the parties and only if the title is proved on the basis of Will only then the order of succession is diverted.
14. In the aforesaid facts and circumstances while the Court is not inclined to interfere with, it shall be open for the petitioner to get his right adjudicated before the competent forum and subject to the outcome of the said proceedings the rights shall be finally determined.
15. With the aforesaid, the petition is dismissed.
Order Date :- 9.1.2024 ank