HIGH COURT OF JUDICATURE AT ALLAHABAD (Judgment reserved on 01.04.2011) (Judgment delivered on 07.07.2011) Case :- WRIT - C No. - 97 of 2001 Petitioner :- Rafiqunnissa Respondent :- The Collector/D.M., Deoria And Others Petitioner Counsel :- H.S.N.Tripathi Respondent Counsel :- C.S.C. Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the petitioner and learned standing counsel for respondent nos. 1 and 2. Inspite of sufficient service no one has appeared on behalf of respondent nos. 3 and 4.
Petitioner purchased agricultural plot no.659 area 28 acres situate in Vilage Bharasuli Bazar, Abu-Bakar Nagar Post office, District Deoria from Mubarak Ali respondent no.4 through registered sale deed dated 20.03.1998. Thereafter, petitioner applied for mutation of her name in the revenue record. The case was registered as case no.636 and was allowed on 25.05.1998. Respondent no.3 District Khadi Gramodyog through its Manager (Gramin) Deoria filed a restoration application on 15.03.2000 seeking recall of mutation order dated 25.5.1998 on the ground that the land in dispute had been mortgaged through deposit of title deeds by respondent no.4 in its favour. The application was allowed on 28.07.2000 and order dated 25.05.1998 was set aside. Against the said order petitioner filed revision no.67 of 2000 which was dismissed on 10.11.2000. Orders dated 28.07.2000 and 10.11.2000 have been challenged through this writ petition.
The case of respondent no.3 was that the agricultural land was mortgaged on 17.1.1997.
The first argument of learned counsel for the petitioner that equitable mortgage (mortgage by deposit of title deeds) is permissible only in presidency towns of Bombay, Calcutta, Delhi and Madras as provided under Section 58 of T.P. Act is not tenable as hundreds of towns and cities have subsequently been notified under the said section by different state Govts. U.P. State Govt. by notification dated 26.03.1976 published in the Gazette on 28.03.1976 notified different cities including Deoria for the said purpose. Thereafter through notification published on 30.04.1977 in the Gazette U.P. State Govt. notified for the said purpose several smaller towns of different districts which includes 10 small towns of different districts which includes 10 small towns/cities of District Deoria.
However, even a land which is subject matter of mortgage can very well be sold which will amount to transfer of mortgagor's right. If respondent no.3 after execution of the mortgage deed did not question continuance of name of respondent no.4 in the revenue records then it could not question mutation of name of the petitioner in the revenue record at the place of respondent no.4 after respondent no.4 had sold the property to the petitioner.
Accordingly, both the impugned orders are liable to be set aside.
However, inspite of sale of the land in dispute by respondent no.4 in favour of the petitioner and of mutation of her name in the revenue record whatever rights the respondent no.3 had in respect of the mortgaged land would remain intact to the extent as permitted by law. In any case even if it is assumed that due to the mortgage respondent no.4 could not sell the land, the said question can not be decided in mutation proceedings.
Accordingly writ petition is allowed. Both the impugned orders are set aside. The order dated 25.5.1998 directing mutation of the name of the petitioner is restored. However, it is clarified that whatever legal rights respondent no.3 has got in respect of land in dispute would remain intact and for enforcement of the said right respondent no.3 is at complete liberty to mitigate appropriate proceedings. It is further clarified that if such proceedings are taken then all permissible legal pleas shall be permitted to be raised by the petitioner.
Order Date :- 7.7.2011 vkg