Shri Krashan vs Addl Commissioner (Judicial) Div ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 6
 

 
Case :- MISC. SINGLE No. - 19760 of 2016
 
Petitioner :- Shri Krashan
 
Respondent :- Addl Commissioner (Judicial) Div Lko & Ors
 
Counsel for Petitioner :- Ram Asarey Verma
 
Counsel for Respondent :- C.S.C,Anand Prakash Awasthi,Anoop Kumar
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This petition has been filed challenging the order dated 25.4.2016 passed by respondent no.1 in Revision no.1239/2011-12 and the order dated 27.6.2011 and 2.4.2012 passed by respondent no.2 in Case no.16/3/847 with a further direction to be issued to respondents not to interfere in peaceful possession of petitioner on the property in question.

2. I have heard learned counsel for the petitioner and learned counsel for respondents 3 to 5.

3. It has been argued that father of the petitioner Putan died in 1987 and PA 11 proceedings took place thereafter in which the petitioner was recorded as his successor on 15.9.1991. After 11 years of death of Putan, one Devki moved an application under Section 34 of U.P. Land Revenue Act for mutation before the Tehsildar on 11.3.1998 on the basis of unregistered Will dated 27.6.1988. The said case was dismissed for want of prosecution on 24.6.1998. Devki never tried to get the case restored in his life time. He died in 2004. Respondent nos.3 to 5 moved an application for restoration after 13 years on 27.12.2010 for recall of order dated 24.6.1998. The application was allowed on 6.6.2011 without hearing the petitioner. Respondent nos.3 to 5 also filed a declaratory suit on 1.10.2010 concerning the same land before the S.D.M., Mishrikh under Section 229B of U.P.Z.A. and L.R. Act showing the death of their father Devki to have occurred during consolidation operation. The consolidation operation in the village concerned had taken place in 1962. The said declaratory suit was dismissed as withdrawn on 8.7.2011. After mutation case was restored it was also allowed on 27.6.2011 directing mutation of names of respondent nos.3 to 5 on the property of Putan, father of the petitioner. The petitioner came to know only on 4.10.2011 when he moved an application for extract of khatauni to be given to him. The petitioner thereafter moved an application for recall of order dated 27.6.2011 which was rejected on grounds of delay on 2.4.2012. The petitioner being aggrieved filed a revision which has also been rejected on 25.4.2016. Hence this petition.

4. It has been submitted by the counsel for the petitioner that this Court has held in several cases that technical consideration should not come in the way of doing substantial justice and that limitation for filing restoration application runs from knowledge and not from the date of order.

5. Counsel for contesting respondents has relied upon his counter affidavit in which it has been stated that the land in dispute is ancestral property. The original tenure holder is Badri who had two sons Putan and Devki. After death of Badri, both Putan and Devki inherited the land in dispute but the name of Putan was recorded as Mukhiya of family in the revenue record and during consolidation operation, land in question was recorded in his name only and not in the name of Devki. Since Putan was aware of Devki being his younger brother, he executed a Will in favour of Shri Krashan, his son and Devki, father of respondent nos.3 to 5 on 27.6.1988 giving half share each of the land in dispute.

6. The respondents have disputed the date of death of Putan as mentioned in the writ petition. It is their case that Putan died on 18.9.1989 and the entry in PA11 on 15.9.1991 in favour of the petitioner was made illegally. It is also the case of respondents that recall application of respondents was allowed by a reasoned and speaking order on the basis of Will giving half share to the petitioner and half share to the heirs of Devki and the order being passed in mutation ought not to be interfered in writ jurisdiction.

7. Counsel for the contesting respondents has placed reliance upon the judgment rendered by this Court in Deen Bandhu vs. Addl. Commissioner, Devi Patan and others, 2013(31) LCD 110; Rakesh Kumar Gupta vs. Board of Revenue and others, 2013(31) LCD 205 and Ram Bahadur vs. Nayab Tehsildar and another, 2013(31) LCD 657, to say that mutation proceedings do not decide any right and title of the party and therefore, writ petition against orders passed in mutation proceedings would ordinarily not be entertained.

8. Counsel for the petitioner in rejoinder has submitted that entry has been made in mutation proceedings on the basis of forged Will and disputed land is not ancestral property, hence Devki has no right over the land in dispute. Since 1366 fasli, the name of Putan was shown as tenure holder of the property. It has been submitted that name of Putan was recorded in the revenue record during consolidation operation but neither the father of respondent nos.3 to 5 Devki nor respondent nos.3 to 5 themselves raised any objection before the consolidation authorities. Moreover, mutation proceedings are summary proceedings and are decided only on the basis of possession. Devki was never in possession over the land in question during life time of Putan or thereafter.

9. The petitioner has disputed the copy of Pariwar Register showing the date of death of Putan as 18.9.1989. Correct copy of Pariwar Register prepared by the Gram Panchayat Adhikari showing the date of death of Putan as 18.9.1987 has been filed as Annexure-RA-2 to the rejoinder affidavit.

10. Counsel for the petitioner has also pointed out that declaratory suit filed by Devki has been dismissed as withdrawn on 8.7.2011 and thereafter right, title and interest of the petitioner over the property in question matured as no application for recall of order dated 8.7.2011 was moved by Devki or respondent nos.3 to 5.

11. Having considered the submissions made by the counsel for the petitioner and counsel for the contesting respondents, this Court has also gone through the orders impugned where main reason for allowing mutation application after restoration of case was given as Will that was produced allegedly made out by Putan in favour of his son and Devki giving equal share to each.

12. This Court finds that mutation orders having been passed only to determine liability to pay revenue to the government do not create any right, title and interest on the property in question but this Court has entertained writ petitions arising out of orders passed in mutation proceedings where it has been found by the Court that the orders have been obtained on the basis of fraud or misrepresentation or where orders have been passed without jurisdiction or they create a right in the property in question against the statutory provisions and against the settled position determined by the competent Court.

13. In this case, suit under Section 229B of the Act filed by respondent nos.3 to 5 was dismissed as withdrawn. The suit was filed on the basis of unregistered Will of Putan. No effort was made by respondents 3 to 5 to get the suit restored to its original number and get a declaration in their favour. Respondent nos.3 to 5 being barred under Section 12 of C.P.C. to file declaratory suit for the same cause of action again, now enjoy orders passed in mutation getting their names recorded in revenue record showing an apparent title in their favour. In the order passed by the Tehsildar concerned, it has not come out that the petitioner was heard. It has also not come out whether any effort was made to find out as to who was in possession. There being no effort to determine as to who had obtained possession after the death of recorded tenure holder, orders passed in mutation are vitiated and against the statutory provisions and requirement of Sections 34 and 35 of the U.P. Revenue Code.

14. The orders impugned are set aside.

15. The Tehsildar (Judicial), Mishrikh, Sitapur shall decide the restoration application filed by respondent nos.3 to 5 on its merit after hearing all concerned and taking into account as to who is in possession on the property in dispute and also whether the unregistered Will has been sufficiently proved or disproved by the authorities.

16. The writ petition stands allowed.

Order Date :- 17.3.2021

Sachin