Allahabad High Court
Ram Swaroop And 2 Others vs Additional Commissioner And 6 Others on 24 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:171753 Court No. - 10 Case :- WRIT - C No. - 21338 of 2021 Petitioner :- Ram Swaroop And 2 Others Respondent :- Additional Commissioner And 6 Others Counsel for Petitioner :- Kamla Prasad Tiwari,Saurabh Kumar Tiwari Counsel for Respondent :- C.S.C.,Bhaskar Bhadra AND Case :- WRIT - B No. - 3853 of 2022 Petitioner :- Shyam Babu And 2 Others Respondent :- Board Of Revenue And 7 Others Counsel for Petitioner :- Kamla Prasad Tiwari Counsel for Respondent :- C.S.C.,Bhaskar Bhadra AND Case :- WRIT - C No. - 49343 of 2017 Petitioner :- Jaspal Singh Gujral And 2 Others Respondent :- Ram Swaroop And 44 Others Counsel for Petitioner :- Vivek Kumar Singh,Bhagwati Prasad Singh,P.H. Vashishtha Counsel for Respondent :- C.S.C.,Dinesh Pathak,Hemant Kumar,Kamla Prasad Tiwari,Rakesh Pathak,Ramesh Chandra Tiwari,S.R. Pandey Hon'ble Kshitij Shailendra,J.
1. During the course of hearing, the Court found that Writ-C No.21338 of 2021 and Writ-B No.3853 of 2022 almost cover identical controversy. However, there are certain different features and different proceedings involved in Writ-C No.49343 of 2017.
2. In view of above, while finally deciding the writ petitions, i.e., Writ-C No.21338 of 2021 and Writ-B No.3853 of 2022, Writ-C No.49343 of 2017 is directed to be detached and disconnected with the aforesaid two writ petitions.
3. Heard Shri Kamla Prasad Tiwari, learned counsel for the petitioners in Writ-C No.21338 of 2021 and Writ-B No.3853 of 2022 and Shri Bhaskar Bhadra, learned counsel appearing for the contesting respondents in aforesaid two writ petitions as well as learned Standing Counsel for the State-respondents and perused the record.
4. The case of the petitioners is that they are bhumidhar with transferable rights of land/Gata No.436, however, at the strength of a sale-deed of 1998 executed by one Yogesh Kumar in the capacity of power of attorney holder, a claim for mutation/correction of entries under Section 38 of UP Revenue Code, 2006, was made by the contesting respondents in the form of Case No.510 of 2019.
5. It is contended that the Sub Divisional Magistrate, by order dated 5.2.2020, dismissed the said case as not maintainable as well as without any force by recording an observation that the applicants of the said case, i.e., the private respondents want to get their names mutated on the basis of a void document and there being complicated question of title and transfer of property involved in the matter, the same cannot be decided in summary proceedings.
6. The said order dated 5.2.2020 was challenged by the respondents before the Additional Commissioner by filing an appeal under Section 207 of the Code, 2006. The appeal has been allowed by the order impugned dated 28.7.2021 and the matter has been remanded to the Tehsildar after setting aside the order dated 5.2.2020, for fresh decision on merits.
7. The order under challenge in Writ-B No.3853 of 2022 apart from the same order is dated 2.12.2022. The said order was passed in the proceedings of revision instituted by some of the parties before the Board of Revenue against the order dated 28.7.2021, however, the Board dismissed the revision as without any force by observing that the order under challenge before him was an order of remand.
8. Therefore, in sum and substance, the effect of all the orders impugned in the writ petitions is the same, i.e., the matter has been remanded for fresh adjudication of proceedings under Section 38 of the Code, 2006.
9. Various submissions have been advanced by both the parties in support of their respective claims over the land in dispute, however, I find that on the one hand, the respondents challenged the order dated 5.2.2020 before the Additional Commissioner, on the other hand, a comprehensive declaratory suit under Section 144 of the Code, 2006 being Case No.19 of 2020, which has also been allotted a computerized number, has been filed in the court of Sub Divisional Officer claiming decree for declaration of rights in relation to the land in dispute. The said suit contains relevant facts qua rights of rival parties on the basis of certain sale-deeds.
10. I also find that Paragarph-5 of the plaint clearly mentions that the suit is being filed in compliance of the order dated 5.2.2020.
11. Section 40-A of the Act-1901 provides for filing of suit in a competent court for relief on the basis of a right in a holding and the orders passed under Sections 33, 35, 39, 40, 41 and 54 of the Act-1901 would not create any bar in any such suit. Section 40-A is extracted as under:-
"[40A. Saving as to title suits. - No order passed under Section 33, Section 35, Section 39, Section 40, Section 41 or Section 54 shall bar any suit in a competent Court for relief on the basis of a right in a holding.]"
12. Since as of now, the provisions of U.P. Revenue Code-2006 have also come into operation, identical provision is found under Section 39 of the Code-2006 reads as follow:-
"39. Certain orders of revenue officers not to debar a suit. -No order passed by a Revenue Inspector under section 33, or by a Tahsildar under sub-section (1) of Section 35 or by a Sub-Divisional Officer under sub-section (3) of section 38 or by a Commissioner under sub-Section (4) of Section 38 shall debar any person from establishing his rights to the land by means of a suit under section 144."
13. The question of the maintainability of a writ petition against orders passed in mutation proceedings has come up before this Court earlier and it has consistently been held that normally the High Court in exercise of its discretionary jurisdiction does not entertain writ petitions against such orders which arise out of summary proceedings. In the case of Jaipal Vs. Board of Revenue, U.P., Allahabad & Ors., AIR 1957 ALL 205, notice was taken of the consistent practice of this Court not to interfere with the orders made by the Board of Revenue in cases in which the only question at issue was whether the name of the petitioner should be entered in the record of rights. The observations made in the judgment in this regard are as follows:-
"3. ...It has however been the consistent practice of this Court not to interfere with orders made by the Board of Revenue in cases in which the only question at issue is whether the name of the petitioner should be entered in the record of rights.
That record is primarily maintained for revenue purposes and an entry therein has reference only to possession. Such an entry does not ordinarily confer upon the person in whose favour it is made any title to the property in question..."
14. The question with regard to the maintainability of a writ petition arising out of mutation proceedings fell for consideration in the case of Sri Lal Bachan Vs. Board of Revenue, U.P., Lucknow & Ors. 2002 (93) RD 6 and it was held that the High Court does not entertain a writ petition under Article 226 of the Constitution of India for the reason that mutation proceedings are only summarily drawn on the basis of possession and the parties have a right to get the title adjudicated by regular suit. The observations made in the judgment are extracted below:-
"11. This Court has consistently taken the view as is apparent from the decisions of this Court referred above that writ petition challenging the orders passed in mutation proceedings are not to be entertained. To my mind, apart from there being remedy of getting the title adjudicated in regular suit, there is one more reason for not entertaining such writ petition. The orders passed under Section 34 of the Act are oTehsildarnly based on possession which do not determine the title of the parties. Even if this Court entertains the writ petition and decides the writ petition on merits, the orders passed in mutation proceedings will remain orders in summary proceedings and the orders passed in the proceedings will not finally determine the title of the parties."
15. Reiterating a similar view in the case of Bindeshwari Vs. Board of Revenue & Ors., 2002 (1) AWC 498, it was stated that mutation proceedings do not adjudicate the rights of parties and orders passed in the said proceedings are always subject to adjudication by the competent Court and therefore a writ petition against an order in mutation proceedings would not be entertainable. It was observed as follows:-
"11. ...The present writ petition arising out of the summary proceeding of mutation under Section 34 of U.P. Land Revenue Act, cannot be entertained under Article 226 of the Constitution of India. The mutation proceedings do not adjudicate the rights of the parties and orders passed in the mutation are always subject to adjudication by the competent Court."
16. The settled legal position that orders of mutation are passed on the basis of possession and since no substantive rights of the parties are decided, ordinarily a writ petition would not be entertainable against such orders unless the same are found to be wholly without jurisdiction or have the effect of rendering findings which are contrary to title already decided by a competent court, was reiterated in the case of Vinod Kumar Rajbhar Vs. State of U.P. and others, 2021 (1) ADJ 792.
17. Taking note of the nature and scope of mutation proceedings which are summary in nature and also the fact that orders in such proceedings are passed on the basis of possession of the parties and no substantive rights are decided, this Court in Buddh Pal Singh Vs. State of U.P. & Ors. reported in 2012 (5) ADJ 266, restated the principle that ordinarily a writ petition in respect of orders passed in mutation proceedings is not maintainable. It was observed as follows:-
"7. It is equally settled that the orders for mutation are passed on the basis of the possession of the parties and since no substantive rights of the parties are decided in mutation proceedings, ordinarily a writ petition is not maintainable in respect of orders passed in mutation proceedings unless found to be totally without jurisdiction or contrary to the title already decided by the competent Court. The parties are always free to get their rights in respect of the disputed land adjudicated by competent Court."
18. The proposition that mutation entries in revenue records do not create or extinguish title over land nor such entries have any presumptive value on title has been restated in a recent decision in the case of Bhimabai Mahadeo Kambekar Vs. Arthur Import and Export Company & Ors. (2019) 3 SCC 191, placing reliance upon earlier decisions in Balwant Singh Vs. Daulat Singh (1997) 7 SCC 137 and Narasamma Vs. State of Karnataka (2009) 5 SCC 591 . The observations made in the judgment are as follows:-
"6. This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor has it any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. (See Sawarni v. Inder Kaur, Balwant Singh v. Daulat Singh and Narasamma v. State of Karnataka)."
19. Reference may also be had to the judgment in Faqruddin Vs. Tajuddin (2008) 8 SCC 12, wherein it was held that the revenue authorities cannot decide questions of title and that mutation takes place only for certain purposes. The observations made in this regard are as follows:- Tehsildar ''45. Revenue authorities of the State are concerned with revenue. Mutation takes place only for certain purposes. The statutory rules must be held to be operating in a limited sense... It is well-settled that an entry in the revenue records is not a document of title. Revenue authorities cannot decide a question of title.''
20. A similar observation was made in Narain Prasad Aggarwal Vs. State of Madhya Pradesh, (2007) 11 SCC 736 wherein it was held as follows:-
''19. Record-of-right is not a document of title. Entries made therein in terms of Section 35 of the Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable...''
21. In Union of India and others Vs. Vasavi Cooperative Housing Society Limited & Ors.(2014) 2 SCC 269, the principle that entries in revenue records do not confer any title was reiterated and referring to the previous decisions in Corpn. Of the City of Banglore v. M. Papaiah, (1989) 3 SCC 612; Guru Amarjit Singh v. Rattan Chand (1993) 4 SCC 349 and H.P. v. Keshav Ram (1996) 11SCC 257, it was stated thus :-
"21. This Court in several judgments has held that the revenue records do not confer title. In Corpn. Of the City of Bangalore v. M. Papaiah this Court held that: (SCC p. 615, para 5) ''5. ...It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law.'' In Guru Amarjit Singh v. Rattan Chand this Court has held that: (SCC p. 352, para 2) ' '2. ...that entries in the Jamabandi are not proof of title.
'' In State of H.P. v. Keshav Ram this Court held that: (SCC p. 259, para 5) "5. ...an entry in the revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs.''
22. A similar view was taken in the case of Sawarni (Smt.) Vs. Inder Kaur (Smt.) and others, (1996) 6 SCC 223 and it was observed that the mutation of name in the revenue records does not have the effect of creating or extinguishing the title nor has any presumptive value on title and it only enables the person concerned to pay land revenue. It was stated thus :-
"7...Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question..."
23. The principle that an entry in revenue records is only for fiscal purpose and does not confer title on a person whose name appears in record-of-rights and title to the property can only be decided by a competent Civil Court was reiterated in the decision of Suraj Bhan and others Vs. Financial Commissioner and others (2007) 6 SCC 186 and it was stated as follows :-
"9...It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. It is settled law that 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. So far as title to the property is concerned, it can only be decided by a competent Civil Court..."
24. The legal position that entries in revenue records do not confer any title has been considered and discussed in a recent decisions of this Court in Harish Chandra Vs. Union of India & Ors., 2019 (5) ADJ 212 (DB) and Mahesh Kumar Juneja and another Vs. Additional Commissioner Judicial Moradabad Division and others, 2020 (3) ADJ 104 and it was restated that ordinarily orders passed by mutation courts are not to be interfered in writ jurisdiction as they are summary proceedings, and as such subject to a regular suit.
25. The settled legal position that an entry in revenue records does not confer title on a person whose name appears in record-of-rights and that such entries are only for "fiscal purpose" and no ownership is conferred on the basis thereof and further that the question of title of a property can only be decided by a competent Civil Court has again been restated in a recent decision of the Supreme Court in Jitendra Singh Vs. State of Madhya Pradesh and others, 2021 SCC OnLine SC 802; wherein after referring to the previous authorities on the point in Suraj Bhan Vs. Financial Commissioner, (2007) 6 SCC 186, Suman Verma Vs. Union of India, (2004) 12 SCC 58, Faqruddin Vs. Tajuddin (2008) 8 SCC 12, Rajinder Singh Vs. State of J & K, (2008) 9 SCC 368, Municipal Corporation, Aurangabad Vs. State of Maharashtra, (2015) 16 SCC 689, T Ravi Vs. B. Chinna Narasimha, (2017) 7 SCC 342, Bhimabai Mahadeo Kambekar Vs. Arthur Import & Export Co.(2019) 3 SCC 191; Prahlad Pradhar Vs. Sonu Kumhar, (2019) 10 SCC 259 and Ajit Kaur Vs. Darshan Singh (2019) 13 SCC 70, it was observed thus :-
"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 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."
26. The aforesaid propostion of law has recently been reiterated by this Court in the case of Smt. Kalawati v. Board of Revenue & Ors. reported in 2022 (4) ADJ 578. Similar view has been taken in another recent decision of this Court in the case of Alladin v. State of U.P. & Ors. reported in 2023 (3) ADJ 41.
27. In view of the above discussion and the law laid down by the Apex Court, these two writ petitions, i.e., Writ-C No.21338 of 2021 and Writ-B No.3853 of 2022 are disposed of with the following directions:
(i) The Sub Divisional Officer concerned shall decide the pending suit under Section 144 of the Code, 2006, within a period of one year from the date a certified copy of this order is produced before him by either of the parties;
(ii) The order dated 5.2.2020 shall remain subject to the decision in the suit;
(iii) Interim order granted in this case is hereby vacated and, in case, the parties have obtained interim order in some other proceedings, the same shall remain unaffected by this decision.
(iv) The order impugned dated 28.7.2021 passed by the Additional Commissioner is set aside.
28. Office is directed to detach Writ-C No.49343 of 2017 from Writ-C No.21338 of 2021 and Writ-B No.3853 of 2022 and list Writ-C No.49343 of 2017 before the appropriate Bench in the first week of October, 2023.
29. It is made clear that this aforesaid writ petition shall not be treated as tied up or part heard to this Bench.
Order Date :- 24.8.2023 LN Tripathi