Allahabad High Court
Maharaj Singh vs State Of U.P. And 7 Others on 13 July, 2022
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On:- 24.06.2022
Delivered On:- 13.07.2022
Case :- WRIT - C No. - 17388 of 2022
Petitioner :- Maharaj Singh
Respondent :- State Of U.P. And 7 Others
Counsel for Petitioner :- Srijan Mehrotra,Anil Kumar Mehrotra
Counsel for Respondent :- C.S.C.
Hon'ble Siddharth, J.
1. Heard Sri Anil Kumar Mehrotra, learned counsel for the petitioner and learned Standing Counsel for the State.
2. This writ petition has been filed praying for quashing the orders dated 31.03.2022, 05.11.2019 and 02.05.2018 passed by the respondent nos. 2, 4 and 5, Commissioner, Sub-Divisional Magistrate and Tehsildar concerned respectively. Further direction in the nature of mandamus has been sought directing for maintaining the status-quo upon the Khata No. 467 : Khasra No. 310, Khata No. 49 : Khasra No. 54d, Khata No. 466 : Khasra No. 387 and Khasra No. 309 and 81(b).
3. The petition is directed against the order passed by mutation courts. At the very outset, the court finds that this writ petition is not maintainable since the orders impugned have been passed in summary proceedings in mutation case and in case the petitioner is aggrieved he may institute suit for decree of declaration and injunction before the competent civil court.
4. There is dispute regarding a will dated 26.11.1981 allegedly executed by one, Hari Singh, in favour of predecessor-in-interest of the respondent nos. 6/1 and 6/2, namely, Hukum Singh (since deceased. The petitioner is disputing the aforesaid will and the proceedings regarding the mutation order passed on the basis of the aforesaid will are subject matter of challenge before this Court.
5. This court finds that an Original Suit No. 281 of 2010 for cancellation of the aforesaid will has already been instituted by the petitioner and the same is still pending.
6. Learned counsel for the applicant has relied upon a recent judgment of this court passed in Writ - B No. 295 of 2022 (Smt. Kalawati vs. The Board of Revenue and 6 others) wherein paragraph 40, this court has laid down the exceptions under which a writ petition may be entertained by this court against the orders passed in mutation proceedings and the same are as follows :-
(i) the order or proceedings are wholly without jurisdiction;
(ii) rights and title of the parties have already been decided by a competent court, and that has been varied in mutation proceedings;
(iii) mutation has been directed not on the basis of possession or on the basis of some title deed, but after entering into questions relating to entitlement to succeed the property, touching the merits of the rival claims
(iv) rights have been created which are against provisions of any statute, or the entry itself confers a title by virtue of some statutory provision;
(v) the orders have been obtained on the basis of fraud or misrepresentation of facts, or by fabricating documents;
(vi) the order suffers from some patent jurisdictional error i.e. in cases where there is a lack of jurisdiction, excess of jurisdiction or abuse of jurisdiction;
(vii) there has been a violation of principles of natural justice.
7. Learned counsel for the petitioner has submitted that the case of the petitioner is covered under exception (V) of the aforesaid paragraph.
8. The submission of the learned counsel for the petitioner that during the pendency of this writ petition, the parties may be directed to maintain status-quo regarding the property being subject matter of dispute before mutation court is not tenable. Since the original suit is pending before the competent civil court, the petitioner can avail the remedy of temporary injunction against the respondents before the civil court. The case laws relied before this court can also be placed before the civil court by the petitioner.
9. The writ petition devoid of merits and is hereby dismissed. No order as to costs.
Order Date :- 13.07.2022
Rohit
