Ganeshiya vs State Of U.P. And 4 Ors.
2019 Latest Caselaw 1324 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Reserved on 22.2.2019
 
Delivered on 15..3.2019
 
Court No. - 14
 

 
Case :- WRIT - C No. - 1439 of 2014
 

 
Petitioner :- Ganeshiya
 
Respondent :- State Of U.P. And 4 Ors.
 
Counsel for Petitioner :- I.K. Upadhyay
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pankaj Bhatia, J.

Heard learned counsel for the petitioner and learned counsel for the State.

The petitioner has filed this writ petition challenging the order dated 3.10.2013 passed by the respondent no.2 in Revision No.149/154/B of 2009 filed under Section 219 of the U.P. Land Revenue Act, the order dated 17.1.2001 passed by the respondent no.3 in Appeal No.3 of filed under Section 210 of the U.P. Land Revenue Act as well as the order dated 12.10.1999 passed by respondent no.4 in Case No.858 of under Section 34 of the U.P. Land Revenue Act.

The facts in brief culled out from the pleadings in the writ petition, are as under:-

The petitioner is the daughter of late Ram Raj son of Shiv Poojan and is resident of village Bhawarpur (Sapahi) Pargana Kharid District Ballia. It is stated that late Ram Raj, the father of the petitioner died in the month of January 1997 and is survived by the petitioner as his legal heir and he did not have any male issue and petitioner was the only daughter of late Ram Raj. It is averred that the father of the petitioner had executed an unregistered will in favour of the petitioner on 4.12.1996. In the said will, Ram Nath Ram, Dhanpati Ram and Raj Narain were the witnesses. It is stated that immediately after the death of the father of the petitioner, the respondent no.5 who is the real brother of late Ram Raj namely Chandrika got his name mutated in the revenue records in place of the father of the petitioner. It is stated that when the petitioner came to know that the respondent no.5, the uncle of the petitioner has got his name mutated she filed a Case No.858 under Section 34 of the U.P. Land Revenue Act for recording her name in the record of rights under Section 34 of the Land Revenue Act claiming inheritance on the basis of the unregistered will dated 4.12.1996. The said Case No.858 was objected to by the respondent no.5, who filed his objections on 29.3.1997.

During the course of proceedings of Suit No.858, the petitioner produced Suhawan as plaintiff-witness no.1, who is husband of the petitioner and Dhanpati the witness of the will as also Ram Nath, the other witness of the will dated 4.12.1996 before the Tehsildar herein the Case no.858. The respondent no.5 himself entered the witness box as well as two other persons Lallan Ram and Hare Ram also gave their evidence in support of the case of respondent no.5. The respondent no.5 also filed an affidavit of Raj Narain, the third witness in the will dated 4.12.1996 who filed an affidavit to the effect that the will does not bear his thumb impression and denied the execution of the will, however, the said Raj Narain never appeared before the Tehsildar to give his statement in support of his affidavit nor was his subjected to cross-examination.

After the exchange of the pleadings and the evidence, the Tehsildar vide his order dated 12.10.1999 rejected the claim of the petitioner for recording her name on the basis of succession and affirmed the mutation entry already recorded in favour of respondent no.5.

The petitioner aggrieved by the order dated 12.10.1999, preferred an appeal. The said appeal was also rejected on the ground that the will dated 4.12.1996 was not proved by the petitioner. The appellate Court further recorded that the will could easily be registered but as the same was not registered and as such there was no occasion to interfere with the order passed by the Tehsildar on 12.10.1999.

Aggrieved by the order dated 17.1.2001 passed by the respondent no.3, the petitioner filed a revision before the respondent no.2. The said revision was also dismissed only on the ground that one of the witness of the will namely Raj Narain had given an affidavit denying his signatures on the will, the revisional Court affirmed the order dated 17.1.2001 as well as order dated 12.10.1999 vide his order dated 18.12.2001 (Annexure-11 to the writ petition). The petitioner further challenged the order dated 18.12.2001 by filing a Revision before the Board of Revenue, U.P. The Board of Revenue vide its order dated 4.2.2009 set aside the order dated 18.12.2001 and remanded the matter before the respondent no.2 merely on the ground that the counsel for the petitioner was not heard when the order dated 18.12.2001 was passed. In terms of the said remand, the matter was heard again by the respondent no.2, who vide his order dated 3.10.2013 again rejected the revision filed by the petitioner on the same ground as was done by him vide order dated 18.12.2001, however, this time counsel for the petitioner was heard.

The petitioner has challenged the said three orders on the ground that the same are without jurisdiction and on the basis of the will and even otherwise the petitioner was entitled to mutation of her name in the record of register in place of her uncle whose name has been wrongly recorded.

When the present writ petition was entertained, this Court had passed the following order on 10.1.2014:-

?Heard Sri I.K. Upadhyay, learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents.

Issue notice.

Notices on behalf of respondent nos. 1 to 4 have been accepted by the office of learned Chief Standing Counsel. Therefore, notices need not be served again to the aforesaid respondents.

Issue notice to respondent no. 5 through registered post returnable at an early date.

Steps be taken within two weeks.

In the meantime, counter affidavit, if any, may be filed by learned counsel for the respondents.

As an interim measure, without prejudice to right and contention of the parties, till the next date of listing, no third party right shall be created over the land in dispute.?

Office report indicates that notices were served through registered post on respondent no.5, but no one has put in appearance on behalf of respondent no.5. No counter affidavit has been filed by the State counsel also.

Since the matter was listed after about five years, there was no counter affidavit on record or appearance on behalf of the respondent no.5, I have heard the counsel for the petitioner, the standing counsel and proceed to decide the present petition on the basis of averments made in the writ petition as well as the provisions of law.

The relevant statutory provisions governing transfer of agricultural lands are contained under the U.P.Z.A. & L.R. Act, 1950 (as applicable then) and the U.P. Land Revenue Act, 1901.

Section 169 of the U.P.Z.A. & L.R. Act, 1950 prior to its amendment in the U.P. Act No.27 of 2004 is as under:-

?169. Bequest by a Bhumidhar with transferable rights :-

(1) A Bhumidhar with transferable rights may by will bequeath his holding or any part thereof except as provided in sub-section (2-A)

(2) Omitted.

(2-A) In relation to a Bhumidhar with non-transferable rights belonging to a scheduled caste or scheduled tribe, the provisions of sections 157-A and 157-B shall apply to the making of bequests as they apply to transfer during life-time.

(3) Every will made under provisions of sub-section (1), shall, notwithstanding anything contained in any law, custom or usage, be in writing and attested by two persons.?

Section 169 of U.P.Z.A. & L.R. Act underwent amendment by virtue of U.P. Act No.27 of 2004 with effect form 23.8.2004 wherein it was provided that the transfer by virtue of will could take place only by means of a registered will. Sub-section (3) of section 169 of U.P.Z.A. & L.R. Act, 1950 after its amendment, as under:-

?169. Bequest by a Bhumidhar- (1) A [bhumidhar with transferable rights] may by will bequeath his holding or any part thereof except as provided in [sub-section (2-A)]

(2) [* * *]

[(2-A) in relation to a [bhumidhar with transferable rights] belonging to a scheduled caste or scheduled tribe, the provisions of [sections 157-A and 157-B] shall apply to making of bequests as they apply to transfer during life time.]

(3) Every will made under provisions of sub section (1) shall, not withstanding anything contained in any law, custom or usage, [be in writing, attested by two persons and registered]?

With regard to the land records and the provisions for revenue entries, the same are governed under the provisions of U.P. Land Revenue Act, 1901. Section 34 of the said Land Revenue Act confers the powers of the Tehsildar to record the transfer on the basis of succession. Section 34 of U.P. Land Revenue Act, is quoted herein 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 Tahsildar of the Tahsil in which the land is situate.]

(2) [* * *]

(3) [* * *]

(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 mad the report required by this section.

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

(i) a family settlement by which the holding or part of the holding recorded in tire record-of-rights in tire 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.]?

Thus, a duty is cast upon the Tehsildar for recording the names on the basis of succession. Adverting to the scope of Section 34 of Land Revenue Act, it is clear that the Tehsildar exercises the power which are summary in nature and he has no power to decide the question of title or even with regard to the validity or otherwise of the will. The proceedings held by the Tehsildar under Section 34 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 do not partake the nature of a civil suit and no powers are conferred on the Tehsildar to decide any issue pertaining to the validity of the will.

The Tehsildar clearly exceeded his jurisdiction in deciding the validity of the will in the proceedings under Section 34 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, and proceeded to decide the matter as if he was the Civil Court, the said procedure adopted by the Tehsildar was clearly without jurisdiction. Even otherwise, the Tehsildar erred in rejecting or disbelieving the will only on the ground that the third witness of the will had filed an affidavit denying his signatures as an attesting witness, more so, because he did not enter the witness box nor was offered for cross-examination and thus, his testimony could not even be relied upon by the Tehsildar while passing the order dated 12.10.1999.

The appellate Court also erred in disbelieving the will only on the ground that the two witnesses of the will were not resident of the same village as that of the father of the petitioner and also on the ground that the Registry Office was very close by and the will could have been easily registered. The said finding is erroneous on two grounds;

(1) That the appeal arising out of summary proceedings has to remain within the scope of powers conferred on the original authority as appeal is a continuation of the proceedings exercised by the original authority; and

(2) The scope of appeal arising out of summary proceedings cannot exceed beyond the scope of summary proceedings while deciding the appeal and thus, the appellate Court could not have given any decision with regard to validity of will.

The order passed by the revisional Court is also clearly erroneous as it has failed to consider that the Tehsildar itself did not have the jurisdiction to decide the validity of the will.

A perusal of Section 34 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, on the plain reading, is clear that the Tehsildar is bound to record the name on the basis of succession by virtue of a will and in the event of any challenge to the validity of the will, the only recourse open to the Tehsildar is to direct the objector to file a suit for declaration in the Civil Court and to get the will declared as nullity. In this case the Tehsildar did not clearly adopt the said procedure.

The Court is concious of the settled law that the mutation proceedings cannot have any bearing to the title and are merely revenue entries however, in the present case the will has been held to be not genuine which being clearly beyond the scope of powers conferred by virtue of Section 34 of the U.P.Z.A & L.R. Act on the Tehsildar, interference is called for in the facts of this case.

Having considered the statutory provisions as well as on the question of jurisdiction, I have no hesitation to hold that the orders dated 3.10.2013, 17.1.2001 and the order dated 12.10.1999 passed by the respondents-authorities are wholly illegal and liable to be quashed and are hereby quashed.

The respondent no.4 is directed to record the name of the petitioner in the record of rights in place of her father and to delete the name of the respondent no.5 as the successor of the holding of late Ram Raj as was done in his favour by means of the order dated 5.2.1997. The Tehsildar is directed to make the necessary correction in the record or rights in terms of this judgement within a period of three months from the date of production of a certified copy of this order. The parties are however, free to get their claim on title decided in regular courts.

The writ petition is allowed in terms of the judgement passed above.

Order Date :- 15.3.2019

Hasnain