Smt. Usha Rai vs Board Of Revenue U.P. And 2 Others
2022 Latest Caselaw 9184 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 32
 

 
Case :- WRIT - B No. - 237 of 2022
 

 
Petitioner :- Smt. Usha Rai
 
Respondent :- Board Of Revenue U.P. And 2 Others
 
Counsel for Petitioner :- Anil Kumar Tiwari
 
Counsel for Respondent :- C.S.C.,Gaurav Bishan
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the petitioner, learned counsel for the private respondent No. 3, learned Standing Counsel representing respondent Nos. 1 and 2 and perused the record.

2. The grievance of the petitioner is that trial court has illegally passed the mutation order in favour of the respondent No. 3, affirmed by revisional court, on the basis of gift deed dated 1.9.2015 without substituting the present petitioner Smt. Usha Rai as heir and legal representative of Smt. Lalita Devi, who has moved an application under Section 34 of Land Revenue Act.

3. Facts culled out from the averments made in the writ petition reveal that the property in question relates to Sitaram Rai who was a recorded tenure holder. An application dated 28.9.2015 was filed on behalf of Smt. Lalita Devi alleging therein that Sitaram Rai was the real brother of her husband Mahant Rai and both were co-tenure holder and being survivor, she is the rightful owner of the property in question belonging to Sitaram Rai. Praveen Kumar Rai (respondent No. 3) has filed objection claiming his right and title over the property in question on the basis of the gift deed dated 1.9.2015 said to have been executed by the recorded tenure holder Sitaram Rai in his favour. During the pendency of the case, Smt. Lalita Devi has died leaving behind her daughter Smt. Usha Rai, who has filed substitution application dated 20.1.2020, which was rejected. Ultimately, the order dated 6.2.2020 has been passed by Tehsildar in favour of the respondent No. 3 to record his name on the basis of registered gift deed dated 1.9.2015. Feeling aggrieved, Smt. Usha Rai has filed revision before the Board of Revenue. Vide order dated 8.9.2021, the Board of Revenue has dismissed the revision.

4. Learned counsel for the petitioner submits that the trial court has illegally rejected the substitution application of Smt. Usha Rai without recognizing her claim under succession being daughter of Smt. Lalita Devi. It is further submitted that due to rejection of the substitution application, proceeding under Section 34 was uncontested, therefore, the order passed by the Tehsildar mutating the name of the respondent No. 3 is non est in the eye of law and is liable to be quashed. In support of his contention, learned counsel for the petitioner has relied upon judgment of this Court dated 5.4.2020 passed in Writ B No. 295 of 2022 (Smt. Kalawati Vs. The Board of Revenue and six others) and judgment dated 31.10.2001 passed in Civil Misc. Writ Petition No. 33610 of 2001 (Sri Lal Bachan Vs. Board of Revenue, Uttar Pradesh).

5. Per contra, learned counsel for the contesting respondent No. 3 contended that the present petitioner has still has an opportunity to get her right and title decided over the property in question by filing a regular suit before the court competent. Rejection of the substitution application will not affect the merits of the mutation application, which has been decided in favour of the respondent No. 3 on the basis of the registered gift deed dated 1.9.2015. It is next contended that there is no illegality, perversity or ambiguity in the order passed by the respondent No. 2, therefore, the present writ petition deserved to be dismissed with costs.

6. Having considered the rival submissions advanced by learned counsel for the parties and perusal of record, I am of the view that the learned Tehsildar has not committed any error in deciding the mutation case in favour of the contesting respondent No. 3, who is claiming his right and title over the property in question on the basis of a registered gift deed dated 1.9.2015. There is a categorical finding returned by the learned Tehsildar that registered gift deed was fully proved by one of his witnesses namely Jiyut Rai, who has filed his affidavit in support of the gift deed. Despite the fact that opportunity was given to cross examine this witness but the same has not been done. It has also been further recorded by the learned Tehsildar that the applicant namely Smt. Lalita Devi has not filed any documentary evidence in her support. The order of the trial court was affirmed by the Board of Revenue vide order dated 8.9.2021.

7. Learned counsel for the petitioner has laid emphasis on paragraph 40 of the case cited, Smt. Kalawati (supra) decided by co-ordinate Bench of this Court. In paragraph 40 of the judgment, seven conditions have been enumerated under which writ arising out of mutation application can be entertained. Learned counsel for the petitioner has relied upon condition No. 7 which provides that in case of violation of natural justice, writ can be entertained. In my opinion, in the instant matter there is no case of violation of natural justice as Smt. Lalita Devi has filed her objection and she has contested the case, and during the pendency of the case, she died. Substitution application filed by the present petitioner was rejected. The trial court has given a definite finding that neither the marginal witness of gift deed was cross-examined nor any documentary evidence has been adduced on behalf of Smt. Lalita Devi in support of her case.

8. Learned counsel for the petitioner has also drawn attention of the Court towards paragraph No. 22 of the cited case Sri Lal Bachan (supra) wherein it has been provided that, in case, substantial justice has not been done with any party, in that condition, writ can be entertained arising out of mutation application. Applying the principle laid down by the co-ordinate Bench of this Court, in the present matter, I am of the view that the petitioner cannot be said to have suffered substantial injustice. There is nothing on the record to demonstrate as to what prejudice caused to the petitioner or there is any likelihood of causing miscarriage of justice due to mutation order passed in favour of the respondent No. 3. Order, in any mutation application, is always subject to decision of the original suit. In view thereof, I do not find any illegality, perversity, ambiguity or infirmity in the impugned order passed by the respondents No. 1 and 2.

9. In the eventuality of registered gift deed, which was proved by the marginal witness, respondents No. 1 and 2 has correctly decided the mutation application in favour of the respondent No. 3. So far as the rejection of the substitution application moved by the petitioner is concerned, I am of the view that the rejection of the substitution application will not affect the right of the present petitioner to pursue her case before the competent court. Substitution in the pending matter is only for the purposes of survival of the case and it does not confer any right and title in favour of the substituted person.

10. In this view of the matter, rejection of the substitution application will not impede the right of the petitioner to pursue her right and title over the property in question before the court competent and she is free to file regular suit before the court competent.

11. The legal proposition with respect to the nature and scope of proceeding under Section 34 of the L. R. Act is no more res integra. Mutation proceeding is fiscal and summary in nature which does not confer any right or title in favour of any party. Any order passed in the mutation proceeding is always subject to the final adjudication of right and title of the parties in a regular proceeding by the competent court. The Hon'ble Supreme Court in its recent judgment dated September 06, 2021 (Special Leave Petition (C) No. 13146 of 2021; Jitendra Singh vs. State of Madhya Pradesh & Others), has expounded that title of the parties can only be decided by the court having competent jurisdiction and the mutation of the property in the revenue records neither creates nor extinguish title of the property nor has it any presumptive value on title. Relevant paragraph nos. 6, 6.1 & 7 of the said judgment is quoted below :-

"6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.

6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Raqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.

7. In view of the above settled proposition of law laid down by this Court, it cannot be said that the High Court has committed any error in setting aside the order passed by the revenue authorities directing to mutate the name of the petitioner herein in the revenue records on the basis of the alleged will dated 20.05.1998 and relegating the petitioner to approach the appropriate court to crystalise his rights on the basis of the alleged will dated 20.05.1998. We are in complete agreement with the new taken by the High Court."

12. In this conspectus as above, I am of the considered opinion that the petitioner has an alternative remedy to file a declaratory suit before the court having competent jurisdiction.

13. Accordingly, present writ petition is disposed of on the ground of availability of alternative remedy.

Order Date :- 4.8.2022

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