Sarvesh Singh And 3 Ors. vs Addl. Commissioner And 18 Others
2022 Latest Caselaw 20952 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 
Case :- WRIT - B No. - 3485 of 2014
 
Petitioner :- Sarvesh Singh And 3 Ors.
 
Respondent :- Addl. Commissioner And 18 Others
 
Counsel for Petitioner :- Ajendra Kumar,Durga Singh
 
Counsel for Respondent :- C.S.C.,Anuj Kumar
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Durga Singh, counsel for the petitioners, learned standing counsel for respondent nos. 1 to 3 and Sri Achal Singh, learned counsel for respondent no.4/gaon sabha.

2. As per office report dated 8.1.2021, service is deemed sufficient upon respondent nos. 5 to 19.

3. Brief facts of the case are that Shiv Balak Singh have six sons, namely, Parsuram Singh, Jagegshwar Singh, Girdhari Singh, Dulare Singh, Kiledar Singh and Chhote Singh. Girdhari Singh son of Shiv Balak Singh was unmarried and have no issue and he used to live with Rajendra Singh and Virendra Singh, son of Dulare Singh. Accordingly, Girdhari Singh executed a registered will deed on 7.8.2004 in favour of his grandsons, namely, Sarvesh Singh, Sunil Singh, both sons of Rajendra Singh and Rahul Singh and Sumit Singh, both sons of Virendra Singh. Girdhari Singh died and after his death, petitioners have filed three set of application under Section 34 of the U.P. Land Revenue Act for recording their names with respect to plot nos.78, 262, 574. The cases were registered as Case No.56, Case No.57 and Case No.79 and the mutation applications were consolidated and heard together. The Tehsildar vide order dated 26.4.2008 has dismissed the petitioner application for mutation and ordered to record the name of the contesting respondents on the basis of succession. Against the order of the Tehsildar dated 26.4.2008, petitioners filed an appeal under Section 210 of the U.P. Land Revenue Act, which was dismissed by the Sub-Divisional Officer vide order dated 4.9.2008. Against the order of the courts below, petitioners have filed revision before the Commissioner which was dismissed vide order dated 5.12.2009. Petitioners under the legal advice, challenged the order of the court of the Commissioner before the Board of Revenue which was also dismissed, hence, this writ petition.

4. This Court while entertaining the writ petition has passed the following interim order on 21.1.2014:-

"Heard Sri Ajendra Kumar, learned counsel for the petitioners, learned Standing Counsel and Sri Ajeet Kumar holding brief of Sri Anuj Kumar, learned counsel for the Gaon Sabha. Issue notice.

Notices on behalf of respondents no. 1 to 3 have been accepted by the office of learned Chief Standing Counsel, whereas Sri Anuj Kumar has put in appearance on behalf of respondents no. 4, therefore notice need not be served again to respondents no. 1 to 4.

Issue notice to the respondents no. 5 to 19 through registered post returnable at an early date.

Steps be taken within two weeks.

Learned counsel for the respondents are granted six weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter.

List thereafter.

Till the next date of listing, no third party right shall be created."

5. In pursuance of the order dated 21.1.2014, notices were sent to the contesting respondent but nobody has put in appearance nor any counter affidavit has been filed, denying the averments made in the writ petition.

6. Counsel for the petitioners submitted that petitioners applied for mutation on the basis of registered will deed executed in their favour. He further submitted that the will deed was proved according to the provisions contained under the Indian Evidence Act and the Indian Succession Act by producing the marginal witness of the will deed in question but the Tehsildar has arbitrarily rejected the application, even though the oral evidence was given that petitioners are in possession of the property in dispute also, as such, all the essential criteria for granting the mutation is fulfilled and the registered will deed has not been challenged by anybody before the competent court. He further submitted that courts of appeal and revision have also dismissed the petitioners' appeal and revision, without considering the case of the petitioners. He finally submitted that unless the will deed in question, which is a registered document is cancelled by competent court, the mutation of the petitioners cannot be refused in the summary proceeding.

7. I have considered the arguments advanced by learned counsel for the petitioners and perused the records.

8. There is no dispute about the fact that petitioners have applied for mutation under Section 34 of the U.P. Land Revenue Act, on the basis of the registered will deed dated 7.8.2004, which has not been challenged by anybody before the competent court but the courts below have rejected the mutation application filed by the petitioners, on the ground that will deed is not proved and ordered for mutation, on the basis of succession.

9. Since the petitioners are claiming, on the basis of the registered will deed dated 7.8.2004 and has proved the same before the Tehsildar, according to the provisions contained under the Indian Evidence Act and Indian Succession Act, as such, the Tehsildar cannot refused the mutation to the petitioners who are claiming right on the basis of the registered will deed. It is also material that the petitioners have adduced oral evidence in order to demonstrate that the petitioners are in possession of the disputed plot also and the registered will deed has not been cancelled by the competent court.

10. This Court in Misc. Single No.5147 of 2015, Smt. Hadisul Nisha vs. Additional Commissioner(Judicial), Faizabad and Others, decided on 25.6.2021 has held that finding on possession should also be recorded by mutation court, paragraphs nos.27 & 28 of the judgment are relevant which are as follows:-

27. In Rudra Mani Shukla versus Subash Kumar (supra), the proceedings in mutation application were decided on merits without any enquiry into the possession. The enquiry was conducted only with regard to proving of the Gift deed by which the respondent therein had claimed mutation in his favour. Mutation being decided without following the procedure prescribed, the writ petition was entertained. It was observed that under Rule A375 of the Revenue Courts Manual, a proclamation is made on the basis of mutation application in favour of a person who has obtained possession on his having shown to the court evidence that he was in possession, in support of his objection. This Court had observed that under Section 34 of the U.P. Land Revenue Act every person obtaining possession of any land by succession or transfer, other than a succession or transfer which had already been recorded under section 33A, shall report such succession or transfer to the Tehsildar of the Tehsil in which the land is situated. Under section 35, on receiving a report of transfer or succession or upon facts otherwise coming to his knowledge, the Tehsildar should make such enquiry as is necessary, and if he is satisfied that such succession or transfer appears to have taken place, he shall direct the Annual Registers to be amended accordingly. Section 40 clearly provides that all disputes regarding entries in the Annual Register shall be decided on the basis of possession.

28. This Court observed in Rudra Mani Shukla (supra) that it was incumbent upon the Tehsildar to make necessary enquiry about the existing entries in the relevant papers and also to make an enquiry as to who was in possession, and then make an order accordingly. In Amarnath Arora versus Board of Revenue U.P. Lucknow, 2019 LCD 775; a Coordinate Bench of this court placing reliance upon Rudra Mani Shukla (supra) observed in paragraph 27 and 31 Thus:-

"27. what persuades this Court to entertain this writ petition, though the same has been preferred against orders passed in a mutation case, is the fact that in terms of the provisions contained in sections 34 and 35 of the U.P. Revenue Code 2006, the finding of ''obtaining possession'' is necessarily to be returned by the Court concerned, however, ignoring the said provision since the impugned orders have been passed, without recording a finding in respect of ''obtaining possession', I am inclined to entertain this writ petition in the peculiar facts and circumstances of the case and accordingly reject the objection raised by the learned Senior Advocate appearing on behalf of the Respondent no.4 regarding maintainability of the writ petition.

"31. Mutation proceedings in respect of agricultural land which are presently governed by the provisions of sections 34 and 35 of the UP Revenue Code 2006 were earlier governed by sections 34 and 35 of the U.P. Land Revenue Act. The provisions of section 34 of the U.P. Revenue Code 2006 and Section 35 of the UP Land Revenue Act are in Pari materia. In both these provisions, the emphasis, in my considered opinion, is on obtaining possession by transfer..."

11. Considering the entire facts and circumstances of the case as well as ratio of law laid down in Smt. Hadisul Nisha (supra), the impugned orders dated 5.12.2009, 4.9.2008, 26.4.2008, 30.11.2012 & 8.7.2013 passed by the courts below cannot be sustained as the petitioners have claimed the mutation on the basis of the registered will deed which was proved by him also, in accordance with law, as such, petitioners are entitled to be recorded in the revenue records, unless the will deed is cancelled by the competent court.

12. The writ petition is allowed. The orders dated 5.12.2009, passed by respondent no.1, 4.9.2008, passed by respondent no.2, 26.4.2008, passed by respondent no.3 and 30.11.2012 / 8.7.2013 passed by the Board of Revenue are set aside and the matter is remitted back before the respondent no.3/Tehsildar, Hamirpur to register the mutation case, to its original number and decide the same, in the light of the observations made hereinabove, expeditiously, preferably within a period of 3 months from the date of production of the certified copy of the order, after issuing notice to opposite parties and giving opportunity of hearing to both parties as contesting respondents have not put in appearance before this Court since 2014.

Order Date :- 14.12.2022/C.Prakash