Allahabad High Court
Ayodhya Prasad And Another vs Addl.Commissioner (Admin.) Devi Patan ... on 23 October, 2019
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 24 Case :- MISC. SINGLE No. - 29188 of 2019 Petitioner :- Ayodhya Prasad And Another Respondent :- Addl.Commissioner (Admin.) Devi Patan Mandal Gonda And Anr. Counsel for Petitioner :- Mohan Singh Counsel for Respondent :- C.S.C. Hon'ble Manish Mathur,J.
Heard Sri Mohan Singh learned counsel for petitioner, learned State Counsel appearing on behalf of opposite party No.1 and Sri Amitesh Pratap Singh learned counsel who has filed his power on behalf of opposite party No.2 which is taken on record.
At the very outset learned counsel for opposite party No.2 has challenged the maintainability of this petition on the ground that the same arises out of mutation proceedings which are summary in nature wherein title of parties over the land involved is not decided. He has relied upon the judgment rendered by this Court in the case of Awadhesh Singh versus Additional Commissioner and others passed in writ-C No. 13751 of 2005 whereunder it has been held that writ jurisdiction is not exercisable in case of mutation proceedings which are summary in nature and does not effect title of parties over the land in dispute.
A perusal of the aforesaid judgment makes it clear that the same clearly holds that ordinarily writ jurisdiction is not exercisable in case of orders passed in mutation proceedings. The said proposition of law is clearly on the basis of several other judgments of this Court to the same effect. However in the present case, mutation orders have not been effected as yet in the revisional proceedings and only an order for summoning lower court record has been passed. It is in peculiar facts and circumstances of the present case, that the petition is therefore being entertained and is being disposed of without prejudice to the rights of either parties.
Under challenge is the order dated 11th October, 2019 passed by Additional Commissioner (administration) Devi Patan Division, Gonda whereby the application filed by petitioner who is the opposite party in the said revision, for summoning of sale deed, has been rejected.
Learned counsel for petitioner submits that mutation proceedings were initiated at the instance of opposite party No.2 who was claiming over the property in question on the basis of an alleged sale deed dated 2nd February, 1979. It has been submitted by learned counsel for petitioner that in fact there is no such registered sale deed and that even in mutation proceedings, no such sale deed was ever produced by opposite party No.2. It has been submitted that for the very purpose of production of sale deed, earlier also the matter had been remitted to the initial stage but even thereafter when the sale deed was not produced, order was passed in favour of petitioner against which the revision has been filed and is pending consideration. It has been submitted that in the said revisional proceedings, the petitioner had filed an application for summoning of sale deed on the basis of which opposite party No.2 is claiming mutation. However the said application has been rejected on the ground that since lower court record has already been summoned therefore there is no need for separate summoning of sale deed as prayed for by the petitioner.
Learned counsel for petitioner submits that the issues are completely separate in nature and would not help in the proper adjudication of revision since there is no such sale deed on record before the mutation court and as such even after summoning of record, the sale deed would not be on record and therefore it is required that the sale deed on the basis of which opposite party No.2 is claiming mutation should be brought on record. It has also been submitted that already a declaratory suit under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 is pending consideration before the authority concerned in which defendants/petitioners have already put in appearance and have filed their written statement.
Learned counsel appearing on behalf of opposite party No.2 while refuting the submissions advanced by learned counsel for petitioners has submitted that the impugned order is perfectly valid since record pertaining to mutation proceedings have already been summoned by revisional authority and therefore there is no need or requirement for bringing on record the sale deed on the basis of which opposite party No.2 is claiming mutation. However learned counsel for opposite party No.2 at present does not have any instruction as to whether the alleged deed dated 2nd February 1979 has been filed in mutation proceedings or not.
A perusal of impugned order dated 11th October, 2019 makes it clear that application for summoning of sale deed dated 2nd February, 1979 has been rejected on the sole ground that lower court record has already been summoned in revisional proceedings and therefore there is no occasion to direct the opposite party to furnish the sale deed separately. It has however not been recorded anywhere in the impugned order as to whether it is the case of the opposite party No.2 that they have submitted the sale deed before the mutation authority or not.
In view of the aforesaid circumstances, it is evident that the question as to whether the sale deed dated 2nd February, 1979 on the basis of which the opposite party No.2 is claiming mutation is on record or not would be cleared once the lower court record is available before the revisional authority. In view of aforesaid, that there does not seem to be any occasion to interfere with the order dated 11th October, 2019.
However in case after receipt of lower court record, it becomes evident that the alleged sale deed dated 2nd February, 1979 is not on record, it shall be open to petitioner to file a fresh application requiring the summoning of the alleged sale deed to be brought on record by the opposite party No.2.
In view of the aforesaid the petition stands disposed of.
Order Date :- 23.10.2019 prabhat