Smt. Rampa Devi vs Pahunchi Lal And Others
2012 Latest Caselaw 4432 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							Reserved on 17.5.2012
 
							Delivered on 24.9.2012
 

 
Case :- WRIT - C No. - 317 of 2001
 

 
Petitioner :- Smt. Rampa Devi
 
Respondent :- Pahunchi Lal And Others
 
Petitioner Counsel :- Kamlesh Mishra,Murtaza Ali,S.C.Verma
 
Respondent Counsel :- C.S.C.,Druva Narayana
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Sri S.C. Verma, learned counsel for the petitioner and Sri Dhruv Narain, learned counsel appearing on behalf of the respondents.

The writ petition has been filed challenging the order dated 30.3.2000 passed by the Assistant Collector Ist Class/Sub Divisional Officer, Bilhaur and order dated 4.11.2000 passed by the Ist Additional Commissioner, Kanpur Division,Kanpur-respondent no.4.

Facts in brief for deciding controversy are that one Ram Gulam son of Baldeo recorded Bhumidhar of agricultural plot no. 798 area 2-9-18 situated in village Makanpur, Pargana and Tehsil Bilhaur, District Kanpur Nagar, executed sale deed dated 5.6.1985 for Rs.8000/- in favour of Pahunchi Lal-respondent no.1. The condition as mentioned in the sale deed was to the effect that the amount of Rs.8000/- was to be repaid by Ram Gulam to respondent no.1 within a period of eight years and in case the said amount is paid, the respondent no. 1 Pahunchi Lal will return the land which is the subject matter of the sale deed. It may be noted that the plot no. 798 area mentioned above is the subject matter of land in dispute.

The case of the petitioner is that on 1.2.1992, Ram Gulam returned Rs.8000/- as agreed and asked for return of the possession of his land. However, the respondent no. 1 turned dishonest and refused to accept the said amount. Consequently, Ram Gulam filed a civil suit no. 803 of 1992 on 24.8.1992 with a relief for a direction to respondent no. 1 to execute the deed of reconveyance of the disputed land in favour of Ram Gulam plaintiff. The suit was contested by respondent no. 1 Pahunchi Lal and was decreed by judgment and order dated 6.9.1994. A direction was given to respondent no.1 to execute the deed of reconveyance in favour of Ram Gulam after receiving the agreed amount of Rs.8000/-.

A civil appeal No. 66 of 1999 was filed by respondent no. 1 which was allowed by the judgment and order dated 6.4.1996. Aggrieved, Ram Gulam filed Second Appeal no. 515 of 1996 which was admitted on 26.11.1996 and is pending consideration before this Court. During pendency of the second appeal, the sole appellant Ram Gulam died on 4.5.1997.

The present petitioner on the basis of a will dated 2.5.1996 executed before the Government Notary moved a substitution application in the pending Second Appeal claiming herself to be the sole legal representative of Ram Gulam who was unmarried.

Further, the case of the petitioner is that the respondent no.1 got a collusive order dated 5.3.1995 passed by the Tehsildar, Rasoolabad under Section 34/35 of the U.P. Land Revenue Act(hereinafter referred to as the 'Act') and got his name mutated in the revenue record. Upon knowing of the said fact, the restoration application was moved by the petitioner alongwith her affidavit which was allowed and the order dated 5.3.1995 was set aside. The mutation case was restored to its original number by the order dated 16.1.1999.

The respondent no.1 filed an appeal under Section 210 of the Act before the Assistant Collector who has wrongly and illegally allowed the appeal by order dated 30.3.2000. A revision under section 219 of the Act was filed on 13.4.2000 by the petitioner before the Additional Commissioner which was also dismissed on 4.11.2000.

Learned counsel for the petitioner submits that the order dated 16.1.1999 allowing the restoration application by the Tehsildar was interlocutory order under Section 201 of the Act and hence no appeal lies under Section 210 against the said order. The Assistant Collector acted without jurisdiction in entertaining the appeal and setting aside the order dated 16.1.1999 which was merely to the effect that an order passed in absence of the petitioner was recalled and the mutation case was restored to its original number.

On merits of the order dated 5.3.1995 whereby the name of respondent no. 1 was mutated, learned counsel for the petitioner submits that said order was passed against the interest of Ram Gulam without impleading him as a party to the case and no notice or opportunity was given to him. Late Ram Gulam did not have any notice or knowledge of the ex-parte order dated 5.3.1995 passed during his life time. As such, the petitioner being successor in interest of Late Ram Gulam moved restoration/recall application within a period of 15 days from the date of knowledge of ex-parte order. The restoration application could not have been treated as barred by limitation.

He further submits that both the courts below had knowledge to the fact that civil suit no. 803 of 1992 was filed by Late Ram Gulam which was decreed by the trial court. On the appeal being allowed, a second appeal filed by Late Ram Gulam is pending consideration before this Court.

The contention of the learned counsel for the petitioner is that the Tehsildar has rightly exercised its jurisdiction treating the application filed by the petitioner within time from the date of knowledge of ex-parte order, especially in view of the fact that Late Ram Gulam was not impleaded as party in the mutation case. The order dated 16.1.1999 allowing the restoration application is clearly justified in the facts and circumstances of the case and the courts below have illegally exercised jurisdiction not vested in them in setting aside the said order.

In order to substantiate his submissions, learned counsel for the petitioner relied upon judgments passed in Pandit Dina Nath vs. Rama Nand Saraswati reported in 1972 RD 149(B.R.); Ram Komal & others vs. Deputy Director of Consolidation and others reported in 2004(97) RD 359 and Rajendra Prasad vs. State of Uttranchal reported in 2004(96) RD 345.

With reference to the judgment in Pandit Dina Nath(supra) learned counsel for the petitioner submits that order passed under Section 201 of the Act setting aside ex-parte order and restoring the case to its original number is in the nature of interim order. In view of the same, no appeal can be filed under Section 210 of the Act. The judgments in Ram Komal & others(supra) and Rajendra Prasad (supra) relied upon by the learned counsel for the petitioner are to submit that in the matter of restoration against an ex-parte order the discretion exercised in condoning delay and setting aside an ex-parte order shall seldom be interfered by the appellate court. Substantially, justice was done in restoring the proceeding as it was an ex-parte order though the restoration application was belated one.

Repelling the submission of learned counsel for the petitioner, learned counsel for the respondents submitted that order dated 5.3.1995 was not an ex-parte order. The petitioner is a rank stranger to the proceedings between the parties. and moreover, by the orders impugned in the present petition, no statutory or legal rights of the parties have been determined. The order impugned is an order passed in summary proceedings of mutation under the U.P. Land Revenue Act and the present writ petition is not maintainable.

Further on the merits of the case pleaded by the petitioner, he submits that Late Ram Gulam executed a sale deed in favour of Dilip Kumar & others on 1.3.1993, prior to completion of period of eight years for reconveyance, as agreed between the parties. After the sale deed was executed, Dilip Kumar & others (vendees) filed application for mutation of their names in place of Ram Gulam. The case no. 112/361 of 1994 under Section 34/35 of the Act was instituted on 14.6.1993 on the report of Dilip Kumar & others. Another report with regard to the same land was received from Pahunchi Lal son of Sita Ram i.e. respondent no. 1 on the basis of registered sale deed whereby he also requested for mutation of his name. Both the cases were clubbed together and decided by the order dated 5.3.1995 passed by the Tehsildar, Rasoolabad, Kanpur Dehat.

He further submits that during the course of mutation proceedings Ram Gulam appeared as a witness and recorded his statement in favour of Dilip Kumar & others. The case was examined on merits and the objections of Ram Gulam were also considered and only thereafter the order was passed to expunge the name of Ram Gulam and direction was given to mutate the name of respondent no.1 as Bhumidhar over the disputed land.

Ram Gulam was well aware of the order dated 5.3.1995 passed by the Tehsildar. He did not move any application for setting aside the said order during his life time. He died on 4.5.1997 and only after the death of Ram Gulam, the petitioner moved an application for restoration on 30.5.1998 alongwith application under Section 5 of the Limitation Act. The claim of the petitioner is based on the alleged will executed by Ram Gulam in her favour on 2.5.1996. On 2.5.1996, admittedly Ram Gulam had no right in the property for the reason that the period of eight years as mentioned in the sale deed dated 5.6.1985 had already expired and moreover, he himself executed a sale deed on1.3.1993 prior to the completion of the period of eight years in favour of Dilip Kumar & others who instituted the mutation proceedings and Ram Gulam appeared in the witness box to support the case of Dilip Kumar & others.

On the point of jurisdiction, learned counsel for the respondents submitted that the order dated 16.1.1999 cannot be said to be an interlocutory order for the reason that by the said order, while allowing the restoration application, the order dated 5.3.1995 passed for mutation in favour of respondent no. 1 was set aside. No reason has been assigned for condoning of delay in filing the application for restoration that too by a stranger who was not party to the proceedings. The order dated 16.1.1999 in fact affected the merits of order passed under Section 34/35 of the Act and as such the appeal under Section 210 of the Act was clearly maintainable. The order dated 30.3.2000 passed by the Assistant Collector cannot be said to have suffered from jurisdictional error.

The appellate authority in its order dated 30.3.2000, further recorded that the petitioner failed to give any reason much less the satisfactory reasons for recall of order dated 5.3.1995. The application moved by the petitioner was barred by limitation and moreover, the order dated 5.3.1995 was not an ex-pate order and was passed after hearing of Late Ram Gulam who himself entered in the witness box and submitted his case.

In the revision filed under Section 219 of the Act, the Assistant Collector came to the conclusion that the mutation proceedings were culminated during lifetime of Late Ram Gulam who was well aware of the fact that his name was expunged by the order dated 5.3.1995. He died after more than two years on 4.5.1997 and never moved any application either for restoration or filed an appeal against the order of mutation.

The restoration application filed by the petitioner who was not party to the proceeding after death of Ram Gulam could not have been accepted by the Tehsildar. There is no jurisdictional error in the order dated 30.3.2000 passed by the appellate authority. The revision was therefore dismissed.

Heard learned counsel for the parties and perused the record.

From the material brought on record, it is evident that the proceedings under Section 34/35 of the Act for mutation of names were initiated by Dilip Kumar & others, alleged vendees of the land in dispute as also by the respondent no.1-Pahunchi Lal. The application was moved by Dilip Kumar & others on the basis of sale deed dated 1.3.1993 whereas the application by respondent no.1 was moved on the basis of conditional sale deed dated 5.6.1985. Admittedly, the period of eight years for reconveyance as mentioned in the sale deed dated 5.6.1985 expired on 5.6.1993. Civil Suit with a prayer to execute the deed of reconveyance was filed by Ram Gulam on 24.8.1992 and was decreed by the trial court on 6.4.1994. Appeal against the decree of trial court was allowed on 6.4.1996. In the circumstances, the sale deed in favour of Dilip Kumar & others executed on 1.3.1993 was a transfer made by Ram Gulam during pendency of the suit filed by him and is a subsequent sale deed.

Moreover, from perusal of the order dated 5.3.1995 passed by the Tehsildar it is evident that after both the mutation applications were clubbed together, both parties filed their objections. On behalf of Dilip Kumar & others, the statement of Ram Gulam was recorded alongwith other witnesses. Tehsildar in its order dated 5.3.1995 recorded a finding of fact that the period of eight years came to an end on 4.6.1993. The evidence produced by Dilip Kumar was the statement of vendor Ram Gulam and the copy of plaint of the suit filed by him before the court of Munsif. In his statement, Ram Gulam had submitted that he was ready to pay back the amount of Rs.8000/- to respondent No.1 Pahunchi Lal in accordance with the conditional agreement dated 5.6.1985 but Pahunchi Lal refused to receive the same. The suit in respect of the property in dispute was pending.

The Tehsildar further recorded that during pendency of the suit before the court of Munsif and just before expiry of the period of eight years, the sale deed was executed by Ram Gulam in favour of Dilip Kumar & others on 1.3.1993. The copy of the sale deed dated 1.3.1993 was also on record which indicates that in the said sale deed there was no mention of the previous sale deed, its condition and the fact of pendency of suit before the civil court. After discussion of all these facts, the Tehsildar came to the conclusion that until the first sale deed dated 5.6.1985 executed by Ram Gulam is cancelled, the mutation application filed by Dilip Kumar & others cannot be accepted. However, as the period of eight years mentioned in the previous sale deed dated 5.6.1985 has already expired, the mutation order was passed in favour of Pahunchi Lal- respondent no. 1.

It may further be noted that indisputably Ram Gulam was party to the mutation proceedings which culminated on 5.3.1995 by the order passed by the Tehsildar. The mutation application filed on the basis of subsequent sale deed executed by Ram Gulam in favour of Dilip Kumar & others was rejected. Late Ram Gulam appeared in witness box and recorded his statement in favour of subsequent vendees Dilip Κumar & others. This fact which has come up in the order dated 5.3.1995 passed by the Tehsildar has not been disputed by the petitioner.

In the circumstances, the order dated 5.3.1995 can not be said to be an ex-parte order and the contention of the learned counsel for the petitioner that the order dated 5.3.1995 was passed behind the back of Ram Gulam cannot be accepted being against the record.

It may also be noted that the restoration application was filed by the petitioner on 30.5.1998 after one year of the death of Ram Gulam. Ram Gulam died on 4.5.1997 and he did not move any application or took recourse to any further proceeding for setting aside the order dated 5.3.1995 whereby his name was expunged from the record and name of respondent no. 1 was directed to be recorded in his place. In fact, he was the person aggrieved who could have challenged the order of expunging his name.

The application for restoration was filed by the petitioner on the basis of a will alleged to have been executed in her favour after death of Ram Gulam.

In any case, order dated 5.3.1995 is not an ex-parte order and the application for restoration at the behest of the petitioner could not have been entertained by the Tehsildar for setting aside the mutation order dated 5.3.1995, who was not party to the proceedings.

This apart, the order dated 16.1.1999, setting aside the mutation order dated 5.3.1995, cannot be said to be an interlocutory order passed under Section 201 of the Act in view of the fact that order dated 5.3.1995 was not an ex-parte order. It was passed after giving opportunity of hearing to both the parties as is apparent from the record.

The appeal lies against the order dated 16.1.1999 under Section 210 of the Act. The submission of the learned counsel for the petitioner to this extent cannot be accepted and is hereby rejected.

On merits of the order dated 5.3.1995 the matter has been discussed above in detail.

At this stage, reference may be made to Section 34, 35, 200, 201 and 210 of the U.P. Land Revenue Act which are quoted below:-

"34. Report of succession or transfer of possession:-

(1) Every person obtaining possession of any land by succession or transfer (other than a succession or transfer which has already been recorded under Section 33-A), shall report such succession or transfer to the Tehsildar of the Tehsil in which the land is situate.

(2) Omitted

3) Omitted.

(4) If the person so succeeding, or otherwise obtaining possession, is a minor or otherwise disqualified, the guardian or other person who has charge of his property shall make the report required by this section.

(5) No Revenue Court shall entertain a suit or application by the person so succeeding or otherwise obtaining possession until such person has made the report required by this section.

(Explanation.- For the purposes of this section, the word 'transfer' includes-

(i) a family settlement by which the holding or part of the holding recorded in the record-of-rights in the name of one or more members of that family is declared to belong to another or other members; or

(ii) an exchange of holding or part thereof under Section 161 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.)"

"35 Procedure on report.- On receiving a report of succession or transfer under Section 34, or upon facts otherwise coming to his knowledge, the Tehsildar shall make such inquiry as appears necessary, and if the succession or transfer appears to have taken place. he shall direct the annual registers to be amended accordingly."

"200. Hearing in absence of party.- Whenever any party to such proceeding neglects to attend on the day specified in the summons or on any day to which the case may have been postponed, the Court the Court may dismiss the case for default or may hear and determine it ex parte."

"201.-No appeal from orders passed ex parte or by default.- No appeal shall lie from an order passed under Section 200 ex parte or by default."

"210.-Courts to which appeals lie.- (1) Appeal shall lie under this Act as follows:

(a) to the Record Officer from orders passed by any Assistant Record Officer;

(b) (i) to the Commissioner from orders passed by a Collector or an Assistant Collector first class or Assistant Collector in charge of sub-division.

(ii) to the Collector from orders passed by an Assistant Collector second class or Tehsildar.

(c) Deleted

(2) Deleted

(3) Deleted

(4) Deleted

(5) Deleted

(6) No appeal shall lie against an order passed under Sections 28, 33, 39 or 40)."

From careful reading of the aforementioned provisions, it is clear that Section 201 of the Act refers to an order passed under Section 200 of the Act which in turn refer to an order passed ex-parte or for default. Reading of Section 210 further indicates that except for orders passed under Sections 28, 33, 39 or 40 of the Act, the appeal lies under Sub-section (i) (ii) to the Collector from orders passed by the Tehsildar.

This apart, admittedly, the petitioner Smt. Rampa Devi claimed her right on the basis of will alleged to have been executed by Late Ram Gulam in her favour on 2.5.1996 which is after the order dated 5.3.1995 passed in mutation proceedings by the Tehsildar. She cannot be said to be a necessary or proper party in the mutation proceeding. Her contention  that Late  Ram Gulam did  not participate in the mutation proceedings is not  substantiated from the records. On the other hand, the record reveals that Late Ram Gulam participated in the mutation proceedings and got his statement recorded.  She is merely a stranger.

It is trite that the orders are inter-se parties and  only the party  to the proceedings can file an application for  restoration  under Section 201 of the  Act.  It is  not a case where  Ram Gulam  died  soon after the order was passed  in mutation.  On the  other hand, he was alive  for  a period of more than two years and did not choose to  take recourse of law against the order of mutation dated 5.3.1995.

Even otherwise, it is trite that the mutation proceeding is summary in nature and it  does not confer  any right  or title in favour of the person whose name is mutated on record. The purpose of mutation proceedings are  to set the record straight so as to avoid any future complications. Admittedly, the second appeal filed by Ram Gulam is pending consideration before this  Court, it is open for the parties to move proper application for correction of records after their rights are decided finally in the second appeal by this Court.

The judgments relied upon by the learned counsel for  the petitioner are based on the facts and circumstances of the particular case and are not applicable in the present case.

In view of above discussion, the writ petition lacks merit and is dismissed accordingly. No order as to cost.

Date: 24.9.2012

P.P.