Allahabad High Court
Ram Singar vs Board Of Revenue U.P. Lko. Thru. Its ... on 6 April, 2022
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 20 Case :- WRIT - B No. - 161 of 2022 Petitioner :- Ram Singar Respondent :- Board Of Revenue U.P. Lko. Thru. Its Chairman And Others Counsel for Petitioner :- Ishwar Dutt Shukla Counsel for Respondent :- C.S.C. Hon'ble Jaspreet Singh,J.
Heard Shri I. D. Shukla, learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.
In furtherance of the order dated 31.03.2022, learned counsel for the petitioner has filed a supplementary-affidavit bringing on record the copy of the plaint filed before the Civil Court seeking cancellation of sale deed dated 03.08.1990 and the copy of statement of Chhedi recorded under Order 10 Rule 2 CPC. The same is taken on record.
Under challenge is the order dated 20.06.2001 passed by the Naib Tehsildar, Gosainganj, Tehsil Sadar, District Faizabad and also order dated 10.03.2003 passed by the said Naib Tehsildar, order dated 14.07.2002 passed by the Sub Divisional Magistrate, Sadar and order dated 18.01.2022 passed by the Board of Revenue whereby the objections raised by the petitioner in a mutation case have been rejected..
The dispute arises from proceedings initiated under Section 34/35 of the U.P. Land Revenue Act. private respondent no.4 Smt. Rampata on the basis of a sale deed dated 03.08.1990 executed by Chhedi, the father of the petitioner in respect of Plots Nos.76 and 425 in village Gokulpur, Pargana Amsin, Tehsil Sadar, District Faizabad (now District Ayodhya) in favour of respondent no.4, filed an application for mutation before the Court of Tehsildar.
On becoming aware of the aforesaid mutation proceedings, Chhedi instituted a Regular Suit No.462 of 1990 for cancellation of the said sale deed dated 03.08.1990. In the mutation case, Chhedi filed his objections specifically stating that he had not executed any sale deed in favour of Smt. Rampata and apart from instituting the civil suit for cancellation of the sale deed an First Information Report was also lodged under Sections 409, 420, 457, 460 IPC at Police Station Maharajganj against Smt. Rampata.
Initially, the mutation application was allowed by means of an ex parte order dated 20.06.2001. Soon thereafter on 27.06.2001, Chhedi filed an application for recall of the said order. While the said application for recall was pending, Chhedi also preferred an appeal against the order dated 20.06.2001 which was dismissed by the appellate court on the ground that the petitioner had already filed a recall application which was pending. Later, the respondent no.3 rejected the application for recall filed by the petitioner by means of order dated 10.03.2003 on the ground that since the appeal of the petitioner had been dismissed and the order dated 20.06.2001 was confirmed, hence the application for recall could not be entertained.
Against the said order dated 10.03.2003, the petitioner filed an appeal which was also dismissed, against which the petitioner has preferred a revision before the Additional Commissioner, Faizabad. The said revision was allowed by the Additional Commissioner by means of order dated 10.12.2013 and the matter was remanded to the court of Tehsildar for deciding the controversy afresh in light of the observations made in the said order.
The private respondent no.4, namely, Smt. Rampata assailed the order of remand dated 10.12.2013 by filing a revision before the Board of Revenue at Lucknow. This revision was allowed by means of order dated 18.01.2022 and as such it is in the aforesaid backdrop that the petitioner has preferred the instant petition assailing the impugned orders.
Submission of the learned counsel for the petitioner is that in the entire mutation proceedings, the petitioner has not been granted any opportunity of hearing to contest the proceedings on merits. It has been urged that against the ex parte order of mutation passed on 20.06.2001, the petitioner had moved an application for recall without any delay on 27.06.2001. The said application was rejected on the ground that since the petitioner had preferred an appeal which was dismissed and the order of 20.06.2001 had been confirmed. While his appeal was rejected on the ground that he had also filed an application for recall. Thus, in this manner neither the appeal of the petitioner was heard on merits nor the application for recall was considered on its own merits. Thereafter the petitioner had preferred a revision which was allowed by the Additional Commissioner (Administration), Faizabad Division by means of order dated 10.12.2013 wherein there was clear observations that the mutation proceedings initiated by Smt. Rampata was not in accordance with the relevant rules; in as much as no proclamation was issued. It was found that the petitioner did not get adequate opportunity to contest the proceedings and in this view of the matter, it was thought expedient to remand the matter.
The Additional Commissioner also took note of the fact that whether the sale deed was actually executed by Chhedi also required evidence on the said point regarding his thumb impression being available on the document. Hence, for all the aforesaid reason, the matter was remanded which was a just and a proper order and it did not require any interference and as such the Board of Revenue while entertaining the revision of the private respondent has interfered with the order dated 10.12.2013 which is not appropriate and in the aforesaid circumstances, the petition deserves to be allowed.
The Court has heard learned counsel for the petitioner and also perused the material on record.
Apparently, the dispute relates to the alleged sale deed dated 03.08.1990 executed by Chhedi in favour of Smt. Rampata. It is not in dispute that Chhedi in his life time had instituted a regular suit No.462 of 1990 for cancellation of said sale deed. A copy of the plaint of regular suit No.462 of 1990 has been brought on record as annexure no.S.A-1 with the supplementary-affidavit filed by the learned counsel for the petitioner today.
From the perusal thereof, it indicates that the ground taken by Chhedi for cancelling the said sale deed dated 03.08.1990 was that he had not received the sale consideration in respect of sale deed. It is also alleged that the sale deed is a outcome of fraud and misrepresentation; in as much as the father of the petitioner, namely, Chhedi was duped into making signature as he was informed that he was required to sign certain papers for the purposes of his pension but later, it revealed that the sale deed was got executed.
A supplementary-affidavit filed today also indicates that a statement of Chhedi was recorded before the trial court in Regular Suit No.462 of 1990 under Order 10 Rule 2 CPC wherein he stated that he had not executed any sale deed in favour of Smt. Rampata nor he has received any sale consideration in respect thereto.
It has also been informed that a compromise was arrived at between the parties to the civil suit which was also an outcome of fraud and soon thereafter the petitioner had moved an application before the court concerned that the said compromise was an outcome of fraud and as such it may not be given affect to.
Learned counsel for the petitioner has drawn the attention to the Court to annexure no.6 which appears to be an extract of the order-sheet passed in Regular Suit NO.462 of 1990 wherein the alleged compromise was filed and before the same could be verified an application for recall was moved and consequently the said compromise was rejected.
In view of the factual matrix as noticed above, it could be seen that the dispute of cancellation of the sale deed is pending before the appropriate court since the year 1990. Learned counsel for the petitioner has also informed that in the said suit the written statement has yet not been filed. It is quite surprising that in a suit of 1990 the written statement has not been filed and no proactive measures have been taken by the petitioner to take the suit to its logical conclusion irrespective of the fact whether there is a written statement on record or not.
Since the sale deed dated 03.08.1990 still continues to subsist and has not been cancelled or declared null and void by any court of law, consequently the same cannot be ignored prima facie. Even though the suit has been pending since 1990 but there does not appear to be any interim order passed in the said suit as informed by the learned counsel for the petitioner.
In the aforesaid backdrop, if the contention of the learned counsel for the petitioner is noticed in light of the order passed by the Additional Commissioner dated 10.12.2013, it would be seen that the Additional Commissioner remanded the matter simplicitor on two grounds, namely, that initially there was no proper proclamation and secondly in so far as the impugned sale deed is concerned, the same would require evidence including that of an expert to ascertain whether that the sale deed in question contained the signature/thumb impression of Chhedi.
Both the issues were not germane in the summary proceedings especially when the civil suit for substantive relief is pending. Even assuming if the proclamation in the mutation case was not present yet it is not disputed by the learned counsel for the petitioner that Chhedi had already put in appearance and filed his objections. Thus, despite the proclamation not being there it has not resulted in any prejudice as Chhedi had already put in appearance and contested the matter on merits by filing his objections. It would have been another issue if the proceedings remained ex parte throughout and at that stage Chhedi could have made an application for recall and perhaps, non-availability of proclamation affecting the service on the concerned party could have assumed significance, it is not so in the instant case, hence, the first ground pales into insignificance as the object of proclamation is only to put parties having some right to notice before making the mutation order and the said object stood achived once. Chhedi contested the same by filing his objections.
The other ground upon which the remand was made was that the sale deed was required to be tested whether it had the thumb impression of Chhedi by permitting the parties to lead expert evidence. This reason was also not material as Chhedi had already instituted a suit for cancellation of the sale deed which is pending adjudication before the competent civil court where the said issue can very well be agitated and parties are free to lead evidence and the civil court is competent to deal with all the complicated issues involved and adjudicate dispute on merits. In the aforesaid backdrop, the mutation court being a court of limited jurisdiction ought not to have embarked upon a parallel inquiry and the Court of Additional Commissioner did not take note of this aspect of the matter.
Learned counsel for the petitioner has relied upon a decision of this Court in the case of Rudra Mani Shukla Vs. Subhash Kumar & two others reported in 2017(3) ADJ, page 510 to contend that in a mutation proceedings the process of proclamation has a solemn role to play as per the procedure laid down in Rule A-366 to A-384, of Part 3 of Chapter A-XXXVII of the U.P. Revenue Court Manual.
Having considered the decision of Rudra Mani Shukla (supra), it would indicate that the facts of the said case are completely different to the case at hand. In the said case the ex parte order of mutation was passed without giving an opportunity to the concerned petitioner who was not informed of the mutation proceedings. It is in this context that the Court taking note of the provision of the U.P. Revenue Court Manual had made the observations. Another distinguishing feature is that in the said case, it was found that an objection of maintainability was raised and the court concerned had heard only on the question of maintainability but after reserving the order without hearing the parties and without holding a due inquiry it passed an order on merit. It is in the aforesaid circumstance that even though an order of mutation is appealable yet the Court entertained a writ petition arising out of the said order. It would indicate that the facts of the instant case are quite different, hence the decision of Rudra Mani Shukla (supra) has no applicability to the facts of the instant case.
This Court is reminded of the decision of the Apex Court in the case of Jitendra Singh v. State of Madhya Pradesh and others, 2021 SCC Online SC 802, wherein it has been observed 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 be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; 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. Darshan 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."
In view of the aforesaid, since the matter in question relates to mutation proceedings and in light of the decision of the Apex Court in Jitendra Singh (supra) it is amply clear that mutation proceedings are of summary nature and do not decide the right, title of the parties. The entries are only for fiscal purposes and are always subject to the decision of the courts passed on the regular side. Since the petitioner is already contesting the regular suit where the issue regarding the validity of the sale deed is still open, hence, this Court does not deem appropriate in the given facts situation, to entertain the aforesaid petition. The petitioner shall be at liberty of getting the suit expedited and shall co-operate in its early hearing. A word of caution is also noted that the suit of 1990 is still pending. The Court shall also take note of the aforesaid and make an earnest endeavour to decide the case most expeditiously after affording full opportunity of hearing to the parties but without granting any unnecessary adjournment except in exceptional circumstances. Any adjournment sought by either of the parties will also be accompanied by commensurate costs to be fixed by the court.
It is also made clear that this Court has not made any expression on the merits of the case of either of the parties which shall be considered by the civil court on its own merit and without being influenced with any of the observations made herein which are only for the purposes of ascertaining the validity of the order impugned arising out of the summary proceedings.
Accordingly, the petition is dismissed with the aforesaid observations. However, in the facts and circumstances, there shall be no order as to costs.
Order Date :- April 6, 2021 ank