Shailesh Pandey And Another vs Board Of Revenue And 5 Ors.
2022 Latest Caselaw 20953 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

					  Court No. - 52
 
					  Reserved On:14.11.2022
 
					  Delivered On:14.12.2022
 

 
					   WRIT - B No. - 4263 of 2016
 

 
Petitioners:- 			   Shailesh Pandey & Another
 
Respondents :- 		   Board Of Revenue & Ors.
 
Counsel for Petitioner:- Triveni Shanker, Ajay 							   Shankar
 
Counsel for Respondent:- C.S.C.,Manish,Manoj 							   Kumar Yadav
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Triveni Shanker, learned counsel for the petitioners, Sri Manish, learned counsel for the respondent no.6, Sri Bhupendra Kumar Tripathi, learned counsel for respondent no.5 and learned Standing Counsel for State-respondents.

2. Brief facts of the case are that one Chhavinath Pandey died on 20.01.1976 leaving behind his wife Saraswati Devi and three sons, namely, Nirmalesh Pandey, Shailesh Pandey and Anilesh Pandey. Smt. Saraswati Devi widow of Chhavinath Pandey has also died on 24.6.2004. Smt. Shail Kumari is wife of Nirmalesh Pandey one of the son of late Chhavinath Pandey. The present dispute is in respect of 11 plots area 4.326 hectare situated in Mauza Dharhara, Pargana Badhwal, Tehsil- Sakaldeha, District- Chandauli and the disputed plots as mentioned above were newly numbered as Plot No.227 area 2.699 hectare and 238 area 1.158 hectare total two plots area 3.857 hectare. The aforesaid plots where in Chak No.587 recorded in the name of one Shyam Narain Singh resident of Village- Kaithi, Pargana- Katehar at present resident of Village- Dharhara, District- Chandauli. During consolidation operation, Shyam Narain Singh recorded tenure holder obtained permission dated 25.8.1981 from Settlement Officer of Consolidation for execution of sale deed and on 3.9.1981, Shyam Narain Singh executed registered sale deed of his Chak No.587 (11 plots) area 4.37 hectare in favour of Smt. Saraswati Devi, widow of Chhavinath Pandey. During consolidation operation, plots of Chak No.587 were newly numbered as Plot No.227 and 228 which were recorded in the name of petitioners' mother, Smt. Saraswati Devi, widow of Chhavinath Pandey. After death of Smt. Saraswati Devi on 24.6.2004, the name of her three sons, Nirmalesh Pandey, Shailesh Pandey and Anilesh Pandey were recorded as her heirs and legal representatives by revenue inspector under Pa.ka.-11 ka vide order dated 7.7.2004. Nirmalesh Pandey was posted in State of M.P. as Block Development Officer and was leaving separately along with his family Smt. Shail Kumari Pandey wife of Nirmalesh Pandey was also in service. They had no male issue, they had only one daughter. Petitioners (Shailesh Pandey and Anilesh Pandey) were residing in the village along with their mother, Saraswati Devi and were looking after her mother. After death of the father (Chhavinath Pandey) properties were divided into three brothers, namely, Nirmalesh Pandey, Shailesh Pandey and Anilesh Pandey. The dispute arises between Nirmalesh Pandey at one side and petitioners, Shailesh Pandey and Anilesh Pandey on other side in respect of house belonging to their father. Nirmalesh Pandey, husband of respondent no.6 want to take her mother, Smt. Saraswati Devi at his place of service in State of M.P. but she was not agreeing to go with him, as such, Nirmalesh Pandey filed an application under Section 97 of Criminal Procedure Code before the Up-Ziladhikari, Sakaldeha, Chandauli that petitioners (Shailesh Pandey and Anilesh Pandey) have forcefully restrained the mother (Smt. Saraswati Devi) and not allowing her to go with Nirmalesh Pandey, hence Up-Ziladhikari / Sub-Divisional Magistrate called for mother, Smt. Saraswati Devi on 23.6.2004 and recorded her statement before him on 23.6.2004, under Section 98 of Criminal Procedure Code. In her statement, Smt. Saraswati Devi has denied to go with Nirmalesh Pandey in State of M.P. rather she stated that his son Nirmalesh Pandey wanted to obtain some document in writing from her and in respect of her agricultural land although she wanted to give her property to all of her three sons and she also wanted to live in the village along with her sons, namely, Shailesh Pandey and Anilesh Pandey. After giving the statement on 23.06.2004, Smt. Saraswati Devi died on next date i.e. on 24.6.2004 in the village at the residence of the petitioners. After death of Smt. Saraswati Devi, the name of all his three sons were recorded under Pa.Ka.- 11Ka by supervisor Kannongo on 7.7.2004 in respect to disputed plots. Nirmalesh Pandey on the basis of unregistered Will-deed dated 17.5.2004 filed an application under Section 34 of U.P. Land Revenue Act on 15/17.7.2004 which was registered as Case No.22/788 of 2004. Notices were issued to the petitioners who filed their objection in the aforementioned mutation case stating that the Will-deed dated 17.5.2004 is fabricated one. Oral evidence were also recorded in the mutation case before the Naib Tahsildar. During pendency of the case before the Naib Tahsildar, Nirmalesh Pandey died in the year 2009 and his widow, Shail Kumari Pandey was substituted as his heir and legal representative. Naib Tahsildar vide order dated 19.5.2010 ordered to record the name of Nirmalesh Pandey / Shail Kumari Pandey in the place of deceased Smt. Saraswati Devi on the basis of unregistered Will deed dated 17.5.2004. Against the order of the Naib Tahsildar, petitioners filed appeal before the Up-Ziladhikari and appeal was dismissed vide order dated 30.12.2011. Against the order of the appellate Court dated 30.12.2011, petitioners filed revision before the revisionary Court and Additional Commissioner vide order dated 30.7.2014 allowed the revision setting aside the order dated 30.12.2011 and 19.5.2010 and maintained the order dated 7.7.2004 passed on the basis of Pa.Ka-11 ka by which the name of all the three sons of the deceased was ordered to be recorded. Against the order dated 30.7.2014 passed by Additional Commissioner, respondent no.6 filed revision before the Board of Revenue and the Board of Revenue vide order dated 26.11.2015 allowed the revision set aside the order of the Additional Commissioner dated 30.07.2011, hence this writ petition.

4. This Court while entertaining the writ petition has passed the following interim order dated 2.2.2016:

"Sri Manish, who has filed caveat on behalf of respondent no. 6 prays for and is granted three weeks time to file counter affidavit. Petitioner will have two weeks thereafter to file rejoinder affidavit.

List this petition for admission/final disposal after the expiry of the aforesaid period.

Until further orders, the parties are restrained from creating any third party interest in the land in question."

5. In pursuance of the order dated 2.2.2016, counsel for the respondent no.6 has filed counter affidavit and petitioners have filed rejoinder affidavit also.

6. Learned counsel for the petitioners submitted that petitioners and the husband of respondent no.6 were the three real sons of deceased tenure holder, Smt. Saraswati Devi, wife of Chhavinath Pandey, as such, all the three sons have equal right in the property and the name of all the three sons was recorded under Pa.Ka-11 ka vide order dated 7.7.2004 but mutation Court has allowed the mutation application of the husband of respondent no.6 on the basis of unregistered Will deed alleged to be executed on 17.4.2004 by recorded tenure holder Smt. Saraswati Devi without taking into consideration the statement of Smt. Saraswati Devi which was recorded before the Sub-Divisional Magistrate on the application of the husband of respondent no.6 in the proceeding under Section 97/98 of Criminal Procedure Code. He further submitted that Additional Commissioner after considering the entire aspects of the case has rightly maintained the order dated 7.7.2004 passed on the basis of Pa.Ka-11 ka recording the name of all the three sons in place of Smt. Saraswati Devi but Board of Revenue has exceeded his jurisdiction in setting aside the order of the Additional Commissioner without revering the findings recorded by the Additional Commissioner in accordance with law. He further submitted that unregistered Will deed alleged to be executed by the Smt. Saraswati Devi in favour of husband of respondent no.6 only excluding the petitioners is forged and fabricated document and cannot be relied upon in view of the statement of Smt. Saraswati Devi recorded on 23.6.2004 before the Sub-Divisional Magistrate. He further submitted that in view of the provisions contained under Section 32 of the Indian Evidence Act, 1872, the statement of Smt. Saraswati Devi will be relevant who cannot be called as witness due to her death. He further submitted that order of the Additional Commissioner dated 30.7.2014 be maintained and respondent no.6 be directed to file a suit for declaration of her right.

7. On the other hand, learned counsel for respondent no.6 submitted that in presence of the Will deed in favour of the husband of respondent no.6 by the recorded tenure holder, Smt. Saraswati Devi although the Will deed is an unregistered one but unless the Will-deed is cancelled, the mutation of respondent no.7 cannot be refused by mutation Court. He further submitted that Naib Tahsildar has rightly allowed the mutation application of respondent no.6 and the order was maintained in appal but Additional Commissioner in the revisional exercise of power has illegally set aside the order of the Courts below, accordingly, the Board of Revenue has rightly exercised the jurisdiction setting aside the order passed by the Additional Commissioner. He further submitted that writ petition arises out of mutation proceeding which is not maintainable and petitioners should be directed to avail remedy of suit for declaration of their right. He further submitted that statement recorded in the proceeding under Section 97 Cr.P.C. is for limited purpose and the same cannot be relied upon while entertaining the mutation application filed on the basis of Will-deed dated 17.5.2004 which was the last Will of Smt. Saraswati Devi. He further submitted that no interference is required and the writ petition filed by the petitioners is liable to be dismissed.

8. I have considered the argument advanced by learned counsel for the parties and perused the record.

9. There is no dispute about the fact that one Chhavinath Pandey was the recorded tenure holder of the plots in dispute and after death of Chhavinath Pandey his widow Smt. Saraswati Devi was recorded and after death of Smt. Saraswati Devi on 24.6.2004, the name of all the three sons of Smt. Saraswati Devi were ordered to be recorded on the basis of Pa.Ka-11 ka vide order dated 7.7.2004. Mutation application filed by husband of respondent no.6 on the basis of unregistered Will deed dated 17.5.2004 alleged to be executed by Smt. Saraswati Devi in favour of husband of respondent no.6 has been allowed by the trial Court and order was maintained in appeal but first revisional Court allowed the revision filed by the petitioners and maintained the order passed by supervisor Kannongo on 7.7.2004 under Pa.Ka-11 ka by which all the three sons of Smt. Saraswati Devi was ordered to be recorded. Board of Revenue has set aside the order of the Additional Commissioner and maintained the order of Naib Tahsildar recording the name of husband of respondent no.6 on the basis of unregistered Will deed.

10. Since, Smt. Saraswati Devi before her death has stated although in different proceeding initiated by husband of respondent no.6 himself under Section 97/98 of the Criminal Procedure Code to the effect that she wants to give the property to all her three sons and she is residing with the petitioners at the village, she wants to live at the village with the petitioners and she do not want to go with third son (husband of respondent no.6).

11. The above mentioned statement of Smt. Saraswati Devi was recorded on the application of the husband of respondent no.6 himself, as such, the statement of respondent no.6 cannot be ignored. It is also material that by way of above mentioned statement of Smt. Saraswati Devi all the three brothers are entitled to be recorded and will be entitled to the equal share of the property but on the basis of the unregistered Will-deed in question, the Naib Tahsildar has allowed the mutation of respondent no.6 only depriving the petitioners from the property in dispute.

12. The statement of Smt. Saraswati Devi recorded by Sub-Divisional Magistrate under Section 97/98 of Criminal Procedure Code will be relevant or not, the perusal of Sections 32 and 33 of the Indian Evidence Act will be necessary, which are as follows:-

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:--

(1) When it relates to cause of death.--When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

(2) Or is made in course of business.--When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.

(3) Or against interest of maker.--When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.

(4) Or gives opinion as to public right or custom, or matters of general interest.--When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

(5) Or relates to existence of relationship.--When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons as to whose relationship [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.

(6) Or is made in will or deed relating to family affairs.--When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

(7) Or in document relating to transaction mentioned in Section 13, clause (a).--When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, clause (a).

(8) Or is made by several persons and expresses feelings relevant to matter in question.--When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated- Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided--

that the proceeding was between the same parties or their representatives in interest;

that the adverse party in the first proceeding had the right and opportunity to cross-examine;

that the questions in issue were substantially the same in the first as in the second proceeding."

13. On the point of scope of Section 32 of Indian Evidence Act, this Court in the case reported in 2010 (110) R.D. 84, Rajendra Prasad Vs. Board of Revenue and Others in Paragraph No.21 as held as under:

"21. Section 32(6) of the Evidence Act is also relevant for consideration in this case. The said clause provides that when statement relating to existence of any relationship by blood, marriage or adoption between the persons deceased, and is made in any Will or deed relating to the affairs of family to which any such deceased person belonged, etc. and when such statement was made before the question in dispute was raised, is relevant."

14. On the point of scope of Section 33 of the Indian Evidence Act, this Court in the case reported in 2008 (104) R.D. 663, Kanchhi Lal Kalyan (Dead) Through LRs. Vs. Smt. Bhagwan Dei and Others in Paragraph No.8 as held as under:

"8. Hence under the above provision of law the statement recorded in a earlier proceedings is relevant in the subsequent proceedings between the same parties or in the representatives of the interest. It is also essential that in that proceedings right to cross-examine was provided to the adverse party and the question in issue were directly and substantially the same as in this proceedings. In the present case all the requirements of law are present. The proceedings before the Tahsildar were quashi-judicial in connection of mutation proceedings and question in issue directly and substantially was regarding the genuineness of the Will and these witnesses were cross-examined by the Counsel for the appellant. Hence I agree with this contention of the Appellate Court that the statement of these attesting witnesses are admissible under section 33 of the Evidence Act, irrespective of the fact that the proceedings was summary but even then the statement is admissible under section 33 of Evidence Act as all the requirement have been fulfilled in the present case."

15. The Additional Commissioner while allowing the revision of the petitioners against the order of Naib Tahsildar and Up-Ziladhikari has taken into consideration the entire evidence on record and has ordered to maintain the order of Revenue Inspector dated 7.7.2004 passed on the basis of Pa.Ka-11 ka by which petitioners and husband of respondent no.6 that is all the three sons were ordered to be recorded in the place of their mother Smt. Saraswati Devi, which appears to be just and proper in the circumstances of the case. Respondent no.6 still have opportunity to file regular suit before competent Court for declaration of her right and the order passed in the instant summary proceeding for recording the name of the petitioners as well as husband of respondent no.6 that is all the three sons of deceased will be subject to the decision of regular suit if any.

16. So far as judgment of Naib Tahsildar, Up-Ziladhikari and Board of Revenue are concerned they have passed the order for recording the name of husband of respondent no.6 on the basis of unregistered Will-deed alleged to be executed on 17.5.2004 by Smt. Saraswati Devi in favour of husband of respondent no.6, they further held that unless the Will-deed in question is cancelled the right of the beneficiary of the Will (husband of respondent no.6) cannot be negatived in summary proceeding but they have failed to consider the statement of Saraswati Devi recorded before the Sub-Divisional Magistrate although in the proceeding under Section 97 / 98 of the Criminal Procedure Code which was initiated by husband of respondent no.6 himself, the Additional Commissioner after considering the evidence recorded in the proceeding under Section 34 of U.P. Land Revenue Act as well as the evidence filed by the parties including the statement of Saraswati Devi recorded under Section 97 / 98 of the Criminal Procedure Code has rightly maintained the order of Pa.Ka-11 ka for recording the name of all the three sons of deceased Smt. Saraswati Devi in the place of one son i.e. husband of respondent no.6 on the basis of alleged Will deed.

17. Considering the entire facts and circumstances of the case as well as ratio of law laid down by this Court, the impugned order dated 26.11.2015 passed by the Board of Revenue is liable to be set aside and the same is hereby set aside and the order of Additional Commissioner dated 30.7.2014 is hereby affirmed. Needless to say that this judgment shall be always subject to decision of regular suit if any filed by the parties to the proceeding.

18. The writ petition stands allowed.

19. No order as to costs.

Order Date :- 14.12.2022

Rameez

(Chandra Kumar Rai,J.)