Allahabad High Court
Pappu Alias Praveen Kumar And 2 Others vs Board Of Revenue And Another on 14 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 2391
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 18 Case :- WRIT - B No. - 1787 of 2019 Petitioner :- Pappu Alias Praveen Kumar And 2 Others Respondent :- Board Of Revenue And Another Counsel for Petitioner :- Rahul Kumar Singh,Narayan Dutt Shukla,R. C. Singh, Sr. Advocate,Sri R.C. Singh, Senior Advocate Counsel for Respondent :- C.S.C.,Vishal Khandelwal Hon'ble J.J. Munir,J.
1. The petitioners have called in question an order of the Board of Revenue, U.P. at Lucknow, dated 12.06.2019, passed in Revision No.2204 of 2017/Mathura Computerized No.R20170150002204 Bihari Lal Vs. Pappu, purportedly in exercise of powers under Section 219 of the Land Revenue Act, 1901 (for short 'the Act'). It is stated at the outset by learned counsel appearing for respondent No.2, Bihari Lal that this Revision in fact, invokes the powers of the Board under Section 210 of the U.P. Revenue Code, 2006, (for short 'the Code') and that the powers exercised while passing the order impugned is referable to the aforesaid provision and not Section 219 of the Act.
2. The dispute in this petition arises out of proceedings for mutation under Section 49 of the Code brought by the second respondent, who laid claim to a certain agricultural property comprised of Khata No.68, Khasra No.116, admeasuring 0.223 hectares, situate in Village Mauza Abdul Nabipur Khaadar, Tehsil Maant, District Mathura on the basis of a registered Will dated 28.09.1984, claimed to be executed in his favour by his grandfather, one Mangal. The land above detailed, is hereinafter referred to as the 'land in dispute'.
3. The petitioner has depicted the relationship between parties on the basis of a pedigree set out in paragraph no. 4 of the writ petition, which is shown below:
Fally Mangal Hari Singh ______________________ Bihari Lal _______________________ (born of the 1st wife) Savitri Pappoo Chintamani (2nd wife)
4. To the aforesaid pedigree, the only dispute raised by the second respondent is that of the two sons of Hari Singh, begotten of his second wife Savitri, Pappu @ Praveen Kumar, is said to be not a son of Hari Singh. That apart, there is no dispute to the pedigree as above depicted.
5. The case of the parties in short is that the original tenure holder was one Fally. The land in dispute devolved upon his son Mangla. After Mangla's decease, the said land went by intestate succession to Hari Singh and after Hari Singh, it went the same way to his heirs, as depicted in the pedigree. Now, Hari Singh, appears to be a much married man who had two wives. This fact is not in issue between parties that respondent Bihari Lal was begotten of Hari Singh's first wife whereas the first and second petitioners are sons begotten of the second wife, Savitri, a petitioner herself. Elaborating on the case, as aforesaid, the petitioner claims that upon death of Mangla, Hari Singh being his sole heir, succeeded to the tenure/land in dispute under Section 171 of U.P. Zamindari Abolition and Land Reforms Act (for short 'the Z.A. Act'). This succession was acknowledged in terms of a mutation order that came to be passed on the basis of an entry in P.A-11 under Section 33-A of the Act. It is the petitioner's case that dispute has arisen at the stage of passage of the land in dispute from Mangla to Hari Singh. This dispute has cropped up at the instance of the second respondent Bihari Lal, who propounded a registered Will dated 28.09.1984 executed by Mangala, his grandfather bequeathing the land in dispute to Bihari Lal, excluding all his heirs. The petitioners have condemned the aforesaid Will as a forged document and refused to acknowledge it as the genuine last testament of Mangala.
6. An application seeking mutation on the basis of the aforesaid Will was made by respondent No.2, under Section 34 of the Act, seeking to expunge the name of Hari Singh that had came to be recorded on the basis of an entry in PA-11, treating him to be a heir under the law who succeeded intestate. The aforesaid mutation application was registered as Case No.223R. This application was allowed by the Naib Tehsildar Raya, District Mathura by an order dated 10.08.1992.
7. From the said order passed by the Naib Tehsildar, an appeal bearing No.86/21/7 of 1993-94 was carried to the Sub-Divisional Officer. This appeal came to be allowed vide order dated 11.10.1993, with the order of the Naib Tehsildar being set aside, and the mutation matter remitted to the Naib Tehsildar for decision afresh. It is pointed out that the aforesaid order in appeal was passed on the basis of a compromise between parties.
8. This Court has perused a copy of that order filed as Annexure SA-3 to the supplementary affidavit filed on behalf of the petitioner. The order does show that the Appeal, under reference, was allowed on a concession where both parties agreed that the matter be sent back to the Authority of first instance, where both sides would have a chance to establish and assail the veracity of the Will. This Court had summoned the records of the Court below to examine the various orders made in the Court of first instance and before the Appellate Court. The records of the Court of first instance have not been made available to this Court on the pretext that they are not traceable. The orders in Appeal also were said to be not traceable, but lateron, on strict orders being made, requiring the Collector to secure those records, the records in Appeal have been produced before the Court.
9. A perusal of those records shows that some part of the record in Appeal before the Settlement Officer of Consolidation appears to be a bit truncated where some of what is reported to be lost, is not there. The petitioner's case is that pursuant to the order of remand dated 11.10.1993, no further orders deciding the mutation case were passed by the Tehsildar, as those proceedings were not pursued by the petitioner. This case of the petitioners, the respondent does dispute but there is nothing on record to show to the contrary that the mutation proceedings, after remand before the Tehsildar, reached a logical terminus.
10. The attention of this Court has been drawn to an application filed before the Tehsildar, post remand in Case No. 223R of 1993, on behalf of the second respondent, Biharilal which is an application dated 27.12.1993. The prayer in the said application is to withdraw the mutation case, and further seeks restoration of the mutation entries as they stood before the order dated 10.08.1992, in favour of the petitioners, based on entries in PA Form 11. According to the second respondent, this application is not signed by him and a subsequent order, on which the petitioner places reliance, dated 10.01.1994, passed in the mutation case, deciding the same in favour of the petitioners and restoring their entries in PA Form 11, is not on record. The petitioner has placed on record a xerox copy of the Misilband Register for the year 1993-1994 annexed as Annexure SA-4 to the supplementary affidavit, dated 13.08.2019. In the 6th column of the Misilband Register there is a remark about the Tehsildar's order dated 10.01.1994, passed on the basis of compromise which the petitioners canvass. However, in the 11th column of the said register, there is a remark in hindi that says "Vivadit". It is in this background that the second respondent submits that there is no authentic evidence of a compromise taking place between parties in the mutation case, before the Tehsildar or about an order dated 10.01.1994 being passed, restoring mutation entries in favour of the petitioner.
11. Certainly, it must be remarked here that there is not even a copy of the order dated 10.01.1994, placed before the Court either by the parties or a record of that order, or the order itself made available to the Court on records summoned from the Authorities below. The application based on compromise, seeking to withdraw the mutation claim by the second respondent, is also disputed on ground that it is not signed. There is also no good evidence on record to dispute the aforesaid assertion put forward on the respondent's behalf.
12. Be as it may, it must be said here and now that so far as the first mutation case is concerned, what does not appear to be in dispute is the appellate order dated 11.10.1993, and, that thereafter, there is no further order which either of the parties or the Authorities have placed on record. This being so, the rights of the parties as they stood before the mutation order dated 10.08.1992, would stand, so far as the first claim for mutation put forward by the petitioner is concerned, on whatever basis that claim was made.
13. It appears that subsequently the village was brought under record operations with a notification being issued under Section 48 of the Act on 23.04.2001 by the State Government. Upon notification as aforesaid being issued, an application by the second respondent, seeking mutation, was again made propounding his rights on the basis of the registered Will dated 28.09.1994. This application was made under Section 54 of the Act. Proceedings that commenced post notification of the record operations, were registered as Case No. 207/474/243/159. The petitioners filed objection to the said application on 25.09.2009, claiming, amongst others, that upon death of Hari Singh (Hari Singh died on 28.07.2008), the petitioners and respondent No. 2 each succeeded to a share of 1/4th in the land in dispute. Here also, in these objections, the Will propounded by the second respondent dated 28.09.1984 from Mangla was disputed and a case of intestate succession was canvassed.
14. It appears that records from subordinate officials were called for by the Assistant Record Officer, Mathura, who rejected the mutation application made by Bihari, respondent No. 2, vide order dated 09.03.2015. It is asserted on behalf of the petitioners for a fact in paragraph 17 of the writ petition that the order of the Assistant Record Officer, Mathura dated 09.03.2015, was not challenged in Appeal and the same attained finality.
15. Learned counsel for the second respondent has, however, added that though, for a fact, it is true that the order dated 09.03.2015 was not challenged in Appeal but the said order was passed rejecting the mutation application made by the respondent No. 2 on the ground that the registered Will had not been filed along with the application whereas the otherside had disputed the execution of such a Will. Now, the respondent has again made a fresh application under Section 49 before the Assistant Record Officer, Mathura dated 23.05.2016, claiming mutation on the basis of the registered Will dated 28.09.1984. Upon service of notice of the said application, the petitioners appeared and contested the claim. They disputed the will as a forged and fabricated document, alleging that Mangla had never executed any Will during his life time, much less the Will in question.
16. It was urged that upon death of Mangla, Hari Singh inherited the land in dispute as his sole heir under Section 171 of the Z.A. Act. It was also pointed out that in the earlier endeavors to seek mutation on the basis of the said Will, an order dated 10.08.1992, passed by the Naib Tehsildar, Raiya, Mathura had been set aside by the Sub Divisional Officer vide order dated 11.10.1993 with a remand to the Tehsildar, whereafter those proceedings did not reach any conclusion. It was urged that these successive applications were a gross abuse of process of Court and this Application was liable to be rejected on this ground. The Assistant Record Officer, Mathura, after consideration of the matter, rejected this application for mutation dated 23.05.2016 by an order dated 26.05.2017. The second respondent dissatisfied with that order passed by the Assistant Record Officer carried an Appeal under Section 210 of the Act.
17. Again, here it must be remarked that the Application dated 23.05.2016 being made after enforcement of the Code before the Assistant Record Officer, the jurisdiction of the Assistant Record Officer and for that matter, the application made, would be referable to Section 49 of the Code. Likewise, the Appeal carried to the Record Officer/SDO/Additional Collector (Administration), Mathura would be referable to the provisions of Section 207 of the Revenue Code. The Additional Collector acting as the Record Officer, heard and dismissed the Appeal vide an order dated 22.09.2017. Still, dissatisfied with this order, the second respondent went up in Revision purporting to be one under Section 219 of the Act to the Board of Revenue. It has been said in the earlier part of this judgment that this Revision, in fact, was carried under Section 210 of the Code, as it is under the Code that these proceedings have commenced and not under the Act. The Revision has since come to be allowed by the Board of Revenue by means of impugned order dated 12.06.2019, setting aside the orders dated 26.05.2017 and 22.09.2017 passed by the Assistant Record Officer and the Record Officer, respectively, rejecting the second respondent's application for mutation dated 23.05.2016. Reversing those orders, the name of the petitioners was ordered to be expunged from the revenue record and that of the second respondent recorded/mutated on the basis of the will in question.
18. Heard Sri R.C. Singh, learned Senior Advocate assisted by Sri Narayan Dutt Shukla, learned counsel for the petitioner and Sri Vishal Khandelwal, learned counsel appearing on behalf of respondent No. 2 at considerable length.
19. It is urged by Sri R.C. Singh, learned Senior Advocate that the entire proceedings seeking mutation is a gross abuse of process of Court as it is a third application made to the same end during the ongoing record operations. He submits that the earliest Applications ended with the mutation order being set aside and no further order being passed that led to the petitioner's right as recorded remaining intact. A second Application made during the current record operations came to be rejected by the Assistant Record Officer vide order dated 09.03.2015 passed in Case No. 77 by the Assistant Record Officer, Mathura. He submits that this order attained finality deciding the rights of parties and was not challenged in Appeal. The present application is a third Application agitating the same claim during the ongoing record operations by moving the Assistant Record Officer again. On occasion also, the endeavor before the Assistant Record Officer has failed, as also in Appeal before the Record Officer. The Revisional Court, therefore, in accepting the petitioner's claim has permitted the petitioner to re-agitate a claim that he has already lost.
20. Sri R.C. Singh submits that this kind of re-agitation of claim to mutation based on the same set of rights, that is to say, in the present case upon the Will in question, would be barred by principles of res judicata. In addition, he argued that even if this Application were held not barred by principles of res judicata, finality attaches to a claim to mutation, both under the Land Revenue Act and the Revenue Code, where an order of a Mutation Authority becomes final by an order made, either in the first instance or on Appeal or in Revision; the same claim cannot be re-agitated again by moving successive applications. He submits that neither under the Act or the Code, this kind of a scheme for establishment of rights is envisaged, where a party may repeatedly take resort of the same proceedings, based on the same set of rights.
21. On the other hand, Sri Vishal Khandelwal has submitted that so far as his first Application under Section 34 of the Act is concerned, the determination of it remained inconsequential, as there is no order on record showing that his first Application was finally rejected. He submits that even if that Application was not allowed, it is equally true that it was not rejected, either. He urges, therefore, that it was certainly open to him to apply afresh during the record operations, whether that application be referable to Section 54 of the Act or 49 of the Code. He does not and possibly cannot dispute the fact that his second Application was rejected but is quick to submit, as already noticed hereinbefore, that the rejection of the second application was on ground that Will in original was not annexed to the Application. It is his contention, therefore, that the rejection of his second Application, which was not challenged further in Appeal, was no adjudication on merits about rights of parties to mutation. He submits, therefore, that in these facts he was well within his rights in making the third application which was carried to its logical conclusion; and that the event has gone in his favour before the Board.
22. It is particularly submitted by Sri Khandelwal that so far as the plea based on the principle of res judicata is concerned, that plea is not applicable to mutation proceedings. In support of his contention, he has placed reliance upon a decision of the Supreme Court in Inder Singh and Another vs. Financial Commissioner, Punjab and others, 1997 (11) SCC 206. In Inder Singh and Another (Supra), it has been held by their Lordships thus:
2.The admitted facts are that the appellants/tenants were in possession of the land bearing specified khasra numbers mentioned in the appellate order (the details of which are not in dispute), admeasuring 190 kanals, 6 marlas in Village Kotrani in Kapurthala District of Punjab. Their application made under Section 22 of the Pepsu Tenancy Agricultural Lands Act, 1955 (13 of 1955) (for short, ''the Act') was rejected by order dated 25-4-1960 on the ground that they did not have possession for 12 years which was confirmed by all the authorities including the High Court in the writ petition on 7-9-1964. Subsequently, they made second application on 26-3-1965 for conferment of ownership rights based on tenancy from the respondents. Similarly, the landlord filed an application for reservation of the land for personal cultivation. The authorities have dismissed the application of the landlord for reservation of the land which order became final. The application of the appellants was allowed on 15-12-1965. On appeal, it was confirmed on 22-6-1966. In revision, the Financial Commissioner by order dated 15-6-1967 confirmed the same. In the writ petition, by the impugned judgment the Division Bench set aside the orders of the authorities on the sole ground that the orders passed on the earlier occasion culminated as res judicata and, therefore the second application under Section 22 is not maintainable.
3. Shri Ujagar Singh, learned Senior Counsel for the appellants, contended that the view taken by the High Court is not correct in law. Since the proceedings before the authorities is of summary nature, the doctrine of res judicata has no application. The act does not prescribe any principle of res judicata as such. The proceedings before the authorities are of summary nature. It would not be correct to apply the principle of res judicata. We find force in the contention. It is not in dispute that the order passed by the authorities is without any elaborate trial like in a suit but in a summary manner. It is well-settled law that the doctrine of res judicata envisaged in Section 11 of CPC has no application to summary proceedings unless the statute expressly applies to such orders. The authorities are not the civil court nor the petition a plaint. No issues are framed nor tried as a civil suit. Under these circumstances, the Division Bench of the High Court was clearly in error to conclude that the earlier proceedings operated as res judicata.
23. The Court has considered this part of the submission of parties on which much could depend regarding the outcome of these proceedings. It is true that principle of res judicata, stricto sensu may not be applicable to mutation proceedings for reasons more than one, as has been indicated by their Lordships of the Supreme Court in Inder Singh and Another (supra) and this Court need not dilate much upon it further. At the same time, the statute here which are the Act and the Code, do provide for finality to orders made in exercise of the mutation jurisdiction. If it were not so, there would be no necessity of providing a complete mechanism of Appeals and Revisions from orders granting or declining mutation.
24. The fact that there is a remedy provided against an order made on a mutation application by the Authority of first instance and a further Revision provided under the Code, if not under the Act, does show that finality is intended to be attached by the statute to orders made in the exercise of mutation jurisdiction, so far as mutation is concerned. The jurisdiction to mutate a name on the basis of whatever right claimed, is not in the nature of a title adjudication; it is certainly not attended with any finality in that sense of the term. It does not in any way decide as to which of the parties are the lawful title holders.
25. Mutation proceedings are essentially fiscal in nature which are made primarily to serve an ex facie record of who is the recorded tenure holder and liable to the State to pay revenues. That is the nature of the proceedings. Therefore, any kind of finality that is attached to an order of mutation is limited within those terms, and would certainly not be a pronouncement about title of parties to land, subject matter of those proceedings. Here on facts also, even if one were to discard the outcome of the Application that was made under Section 34, as those proceedings remained inconsequential, the second Application made to the Assistant Record Officer and decided vide order dated 09.03.2015, was rejected with a finding being recorded in terms hereinafter detailed. The part of the order carrying the finding of the Assistant Record Officer, Mathura dated 09.03.2015 in Case No. 77 is being quoted in extenso:
"मैंने उभय पक्ष के विद्वान अधिवक्ताओ की तर्कपूर्ण बहस सुनी बहस सुनने के उपरांत पत्रावली पर उपलब्ध समस्त कागजात आदि का भली भांति अवलोकन किया अवलोकन से स्पस्ट है कि वादी रजिस्टर्ड वसीयत के आधार पर दाखिल ख़ारिज कराना चाहता है किन्तु पत्रावली पर रजिस्टर्ड वसीयत की मूल प्रति उपलब्ध नहीं है जिसके आधार पर प्रार्थी के हक़ में दाखिल ख़ारिज का आदेश पारित किया जाना न्यायोचित नहीं है जैसा कि आपत्तिकर्ता ने अपनी आपत्ति में भी स्पस्ट अंकित किया है कि मंगला द्वारा कोई वसीयत बिहारीलाल के हक़ में की गई होती और उसके आधार पर कोई आदेश पारित किया गया होता तो उसका अमलदरामद खतौनी में आवश्यक होता प्रश्नगत भूमि की मंगला द्वारा कोई भी वसीयत बिहारी के हक़ में तहरीर नहीं की है वर्तमान में राजस्वा अभिलेखो में मृतक मंगला के स्थान पर हरीसिंह पुत्र मंगला का नाम नक़ल खतौनी १४०९-१४१४ फसली में अंकित है प्रथम दृष्ट्या रजिस्टर्ड वसीयत की मूल प्रति / छाया प्रति पत्रावली पर उपलब्ध न होने के कारण दाखिल ख़ारिज का प्रार्थना पत्र निरस्त किया जाता है बाद आवश्यक कार्यवाही पत्रावली दाखिल दफ्तर हो"
26. A perusal of this order shows that the order is not entirely based on the technical consideration that a copy of the will had not been filed. There is a finding there that the factum of the Will in question being executed by Mangla in favour of Biharilal has been disputed by the petitioners. It has then been recorded for a finding that considering the fact that the execution of the Will is disputed ( and that Will is not there) no mutation could be ordered on its basis. There is then this very specific finding that about the land in question that no Will has been executed in favour of Bihari. There is a further finding recorded that in the revenue records after the death of Mangla the name of Hari Singh has been mutated that finds place in the six yearly Khatauni for the period 1409 to 1414 Fasli. At the end of the order, there is a remark indeed that in the absence of the Will (in original) or a photostat copy of the same being filed, the Application for mutation is liable to be rejected.
27. This order, in the considered opinion of this Court, is not entirely one that proceeds on non-fulfillment of the requirement to file the Will. It has substantially adjudicated the matter within the limitation of the summary proceedings for mutation and discarded the case based on the Will. Even otherwise, if the very basis of the claim that is the Will, has not been filed, there is no good ground in summary proceedings to permit a re-agitation of the same claim by making good the deficiency on the requisite document being filed. This is, particularly, so as the proceedings are summary in nature and not conclusive of rights of parties. So far as the making of a third application for mutation is concerned, there is absolutely no justification for the second respondent to put forward the said claim of a third time in the face of the order dated 09.03.2015. In case, indeed he wanted to canvass his claim, he could have filed an Appeal from the order dated 09.03.2015, and may be there, he could have filed by way of additional evidence the Will, to establish his claim. A repeat resort to the same jurisdiction on the facts of this case does appear to be a vexatious repetitive resort; it is one that this Court would certainly not countenance. In the third endeavor also, apparently for good and cogent reasons, the claim to mutation based on the Will in question has been discarded by two Authorities.
28. A perusal of the impugned order passed by the Revisional Court shows that the Revisional Court has been much swayed by the fact that the order dated 10.08.1992 earlier passed in favour of the petitioner, though set aside in Appeal has not been set aside finally, to the understanding of the Revisional Court. The Revisional Court has thought that the order dated 10.08.1992 being set aside with a remand to the first Authority, in some way, still survives. It appears that it is for this reason that the Revisional Court has remarked that on one hand, the order dated 10.08.1992 is being acknowledged by the petitioners, and on the other, mutation on its basis is being impeached as one based on a forged and fictitious order. Somewhat confounded with these circuitous and long-winded proceedings the Revisional Court has, for no intelligible reason, reversed the concurrent orders of two Authorities below, made on the 3rd Application.
29. The remarks by the Revisional Court, which acknowledge the existence of the order dated 10.08.1992, in some form, despite the order being set aside with a remand, is manifestly illegal. Once an order of mutation is set aside, whether with a remand or wholesomely, the said order is effaced and does not exist. The impugned order passed by the Board of Revenue without taking into consideration the legal position as to whether successive applications seeking mutation could be made by the second respondent, and further, proceedings to set aside orders of two Courts of fact below on the basis of an order that has already been set aside, may be on remand to the Authority of first instance, renders the order of the Revisional Court manifestly illegal and perverse. Even otherwise, the Board of Revenue have exercised revisional jurisdiction upon which there are some inherent limitations. There is no such illegality which the Board has pointed out in the orders impugned before it that may warrant reversal of two concurrent orders of Courts of fact.
30. Thus, in the opinion of this Court, the order impugned passed by the Board of Revenue is not sustainable. Here, it indeed requires a little elucidation that these proceedings for mutation would not at all affect the rights of either the petitioner or the respondent to establish their respective claims in a Court of competent jurisdiction, through a suit appropriately framed. Anything said in this order or by the Mutation Authorities, would bear no consequence on the right, title or interest of parties. The orders in mutation are limited to the maintenance of Revenue Records and are subject to the outcome of any title proceedings which either party may take to establish his/their claim. In the event of success in a title suit for either party, the mutation entries would be appropriately corrected in accordance with the order of the Court deciding the title matter. Subject to what has been clarified above, the impugned order passed by the Board of Revenue, dated 12.06.2019 cannot be sustained.
31. In the result, this writ petition succeeds and is allowed. The order dated 12.06.2019 in Revision No. REV/2204/2017/Mathura is hereby quashed. There shall be no order as to costs.
32. Let the record sent by the Collector, Mathura be sent back forthwith by the Office.
Order Date :- 14.11.2019 NSC/BKM/-