Jagdish vs State Of U.P. & Others
2013 Latest Caselaw 6517 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 6
 

 
Case :- WRIT - B No. - 16558 of 2008
 

 
Petitioner :- Jagdish
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Vivek Prakash Mishra
 
Counsel for Respondent :- C.S.C.,(In Person),Ashutosh Srivastava,K.S.Mishra,Radha Rani Sharma,Sanjeev Kumar Mishra
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Heard learned counsel for the petitioner, Radha Rani Sharma for the respondent no. 6 and perused the records. A short reply to the supplementary affidavit has been filed today by the petitioner which is taken on record.

These proceedings arise out of a matter under Section 34 of the U.P. Land Revenue Act, 1901 in relation to mutation. The petitioner is claiming title over the land on the basis of an unregistered will. His name was mutated. The respondent no. 6 also preferred an objection contending that she is the wife of the deceased tenure holder, namely, late Hari Shanker.

The petitioner disputed the marital status of the respondent no. 6 and also led evidence in support of the will set up by him. The Tehsildar believed the witnesses to the will and rejected the contention of the respondent no. 6 after having made a spot inspection of the village and having taken the statement of some of the villagers. This procedure was additionally adopted by the Tehsildar to reject the claim of the respondent no. 6.

Aggrieved by the order of the Tehsildar the respondent no. 6 preferred an appeal which was dismissed on 30th July, 2005. The respondent no. 6 then preferred a revision which was allowed on 8th February, 2006 and the matter was remanded back for being decided afresh by the Tehsildar in the light of the observations made in the said order.

It is the said order that was challenged before the Board of Revenue by the petitioner and after the petitioner's revision was dismissed on 10th December, 2007, that the present writ petition was filed.

There is another dimension to this case, namely, the respondent no. 6 filed a suit for declaring her status as the legal heir and successor to the holding in question on the ground that late Hari Shanker was her husband. This suit was dismissed on 22.12.2005. The respondent no. 6 has averred certain facts relating to the said suit in her supplementary affidavit dated 6.11.2012 where it is alleged that against dismissal of the suit the respondent no. 6 filed a revision which was allowed on 15.12.2008 and the trial court has been directed to decide the suit afresh in the light of the observations made therein. Thus the suit is also pending which is a regular proceeding in relation to the same subject matter before the trial court, namely, the Sub-Divisional Officer.

Learned counsel for the petitioner contends that this judgment of the learned Commissioner arrived long after the interim order passed in the present writ petition which is dated 1.4.2008 and therefore there was no occasion for not giving this information at the time of the filing of the writ petition.

This Court while passing the interim order had stayed the operation of the orders passed by the learned Commissioner dated 8.2.2006 and the order of the Board of Revenue dated 10.12.2007 whereby the revision of the respondent no. 6 was allowed by the learned Additional Commissioner and the revision filed by the petitioner upholding the same was dismissed on 10.12.2007.

Learned counsel for the petitioner Sri Akhtar Ali holding brief of Sri Vivek Prakash Mishra has urged that since the suit is already pending which is a proceeding on the regular side therefore any order passed by the mutation court would be subject to the same and in the circumstances as now disclosed there is no occasion for the revisional court to have remanded the matter back to the Tehsildar for decision afresh on the summary side. He submits that whatever decision is taken on the regular side would govern the parties and therefore the impugned order of the Additional Commissioner and that of the Board should be quashed.

Learned counsel further submits that so far as the respondent no. 6 is concerned, she has been unable to prove her marriage with late Hari Shanker whereas the petitioner has led evidence to substantiate the claim of the petitioner on the basis of the will and the attesting witnesses to the same had proved the same. He submits that Section 68 of the Indian Evidence Act having been complied with, the order of the Tehsildar did not deserve any interference by the revising authority.

Replying to the submissions of the learned counsel for the petitioner, Radha Rani Sharma, learned counsel for the respondent no. 6 submits that the judgment and decree of the trial court dismissing the suit of the respondent no. 6 already having been set aside, the petitioner cannot take advantage of the dismissal of the said suit or any findings recorded therein.

It is also alleged that the petitioner has not been able to prove his will and on the other hand the evidence led by the respondent no. 6 has been completely overlooked.

She further submits that non-consideration of relevant material amounted to perversity and in the circumstances this material irregularity has been removed by the learned Additional Commissioner by allowing the revision. The said decision has therefore rightly been affirmed by the Board of Revenue and as such the Tehsildar was required to go into the said evidence before recording any findings against the respondent no. 6.

Learned Standing Counsel for the State has also been heard and it is urged that the matter can be decided by the trial court where the regular suit is pending and in the circumstances any judgment or decree of the regular court in a suit under Section 229 would be binding on the parties and the orders passed by the mutating authorities will be governed by it.

Having heard learned counsel for the parties and having considered the submissions raised, it is no doubt true that any proceeding on the regular side in a suit instituted by the respondent no. 6 and the findings arrived therein would be binding on the mutating authorities. The suit itself is now pending after remand as is apparent from the averments contained in the affidavits of the respective parties. Consequently, the decision in the suit would ultimately bind and govern the parties to the litigation.

Nonetheless in the instant case, two competing claims of mutation, one of the petitioner on the basis of an unregistered will, and that of succession of the respondent no. 6 claiming herself to be the wife of late Hari Shanker was contested on the ground, primarily that the respondent no. 6 is not the lawfully wedded wife of late Hari Shanker. In this regard, while reversing the order of the Tehsildar and the appellate authority, the learned Additional Commissioner has categorically recorded that the evidence filed by the respondent no. 6 in the shape of a family register has been overlooked.

I agree with the aforesaid finding, inasmuch as, the Tehsildar while having proceeded to consider the status of the respondent no. 6 was required to assess the entire evidence which was placed before it including the evidence relating to the extract of the family register. Neither the Tehsildar nor the appellate authority have cared to comment upon the same and they have simply rejected the stand of the respondent no. 6 on the basis of the conflicting voters list.

It is trite law that a voter list does prima facie reflect the status of a person but a voter list is prepared under the provisions of a statutory law relating to elections which only confers a limited right to vote and is not a clinching evidence with regard to the status of the identity of that person. The same has to be supported by further material and in this regard the respondent no. 6 had filed the extract of the family register which has been completely overlooked. The entries made in a family register are made under a statutory law relating to the status of the family of a person under the Births and Deaths Register Act and Rules framed thereunder in relation to Local Laws including Municipal Laws.

Thus the same has a statutory status and the impact thereof or the impact of a certified copy of the extract thereof being a public document has to be considered by the authority or by the court while proceeding to assess the evidence led in this regard. It is here where the Tehsildar and the appellate authority appear to have failed to discharge their obligations and consequently the revising authority was justified in remanding the matter back for non-consideration of a relevant material. Such a non-consideration amounts to perversity and a material irregularity which could have been interfered with by the learned Additional Commissioner. I am supported in my view by the full bench decision of this court in the case of Nanha and another Vs. Deputy Director of Consolidation Kanpur and others 1975 AWC Page 1.

There is yet another very peculiar aspect which has also been noticed by the revising authority, namely, that the Tehsildar himself decided to make an inquiry into the matter from the villagers. He found that the villagers clearly stated that the marriage of the respondent no. 6 with Hari Shanker could not consummate even though it had been settled on account of the fact that late Hari Shanker had turned out to be a man of unsound mind.

If that was so, then the trial court was obliged to record a finding on the status of the mind of late Hari Shanker while executing a will on the evidence received and collected by him on the basis of a spot inspection, as to whether he was in a sound state of mind to execute the will in favour of the petitioner or not.

Neither the Tehsildar who had himself collected the evidence nor the appellate court appears to have delve into this issue and therefore in my opinion the revisional court was justified in remanding the matter on this count as well. Consequently, the order of the revisional court as upheld by the Board of Revenue in my opinion does not call for any interference.

The matter has been remitted back to the Tehsildar. In the mean time if the suit is decided on the regular side the findings recorded in the regular side would be binding on the authority but so far as the mutation proceedings are concerned the matter has been rightly remanded keeping in view the findings recorded and the observations made hereinabove.

Consequently, I am not inclined to interfere with the impugned order for the reasons aforesaid. The writ petition is accordingly dismissed subject to the observations made hereinabove.

The Tehsildar shall proceed to decide the matter preferably within a period of six months. He shall abide by any decision on the regular side by the competent court.

Order Date :- 22.10.2013

Sahu