Allahabad High Court
Sultan Ahmad And 2 Others vs State Of U.P. And 4 Others on 27 July, 2022
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 32
Case :- WRIT - B No. - 739 of 2022
Petitioner :- Sultan Ahmad And 2 Others
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Avadh Raj Sharma
Counsel for Respondent :- C.S.C.
Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioners and the learned Standing Counsel for the State-respondents.
Challenge in the present writ petition is the order dated 27.09.2021 passed by the Board of Revenue (respondent no. 2) and the order dated 31.03.2003 passed by the Additional Collector (respondent no. 3) in revision arising out of order dated 09.07.1991 passed by the Tehsildar in a mutation proceeding under Section 34 of the Land Revenue Act.
Facts culled out from the averments made in the present petition are that Saadat Khan & Vishnu Saran (respondents no. 4 & 5) have moved a mutation application under Section 34 of the Land Revenue Act to record their name in the revenue record on the basis of the sale deed dated 13.06.1990, said to have been executed by Shabbir Khan, with respect to half share of plot no. 171 area 5.20 hectare. The Tehsildar, vide order dated 09.07.1991, has allowed the objection filed by respondents no. 4 & 5. Against the order dated 09.07.1991, Shabbir Khan & Others (predecessor in interest of the petitioners) have moved a restoration application dated 28.10.1996. Aforesaid restoration application was allowed and the order dated 09.07.1991 was recalled by the subsequent order dated 04.07.1997 passed by the Tehsildar. After recalling the order, the Tehsildar has passed fresh order dated 17.01.1998 issuing a direction to delete the name of Saadat Khan & Vishnu Saran and in their place name of Shabbir Khan was ordered to be recorded.
Feeling aggrieved with the order dated 17.01.1998, two revisions were preferred being Revision No. 16/01-02 and no. 17/01-02 filed on behalf of respondents no. 4 & 5. Both the revisions were allowed vide common order dated 31.03.2003 passed by the Additional Collector, Rampur and the earlier order dated 09.07.1991 passed by the Tehsildar was affirmed by the revisional court. Having been aggrieved with the order of the revisional court, present petitioners have preferred revision before the Board of Revenue which is dismissed by the impugned order dated 27.09.2021.
Counsel for the petitioners submits that the Board of Revenue has illegally rejected the revision filed by the petitioners without properly appreciating the evidence on record. It is further submitted that the contesting respondents no. 4 & 5 have no claim over the property in question on the basis of the sale deed, therefore, the impugned order may be quashed and the present writ petition may be allowed.
Per contra, learned Standing Counsel contended that there is no illegality, perversity and ambiguity in the order passed by the Board of Revenue who has legally recognized the claim of the contesting respondents on the basis of sale deed, therefore, present writ petition may be dismissed in limini.
I have carefully considered the rival submissions advanced by learned counsel for the parties and perusal of record. It reveals that the present petition is arising out of mutation application moved by the contesting respondents on the basis of the registered sale deed dated 13.06.1990 said to have been executed in their favour. Mutation courts have recognized the right and title of the contesting respondents on the basis of said registered sale deed. There is nothing on record to show that aforesaid sale deed is cancelled by any court or validity of the said sale deed is challenged before any court competent. I do not find any justifiable ground to interfere in the orders impugned.
Even otherwise the legal proposition with respect to the nature and scope of proceeding under Section 34 of the Land Revenue 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."
In this conspectus as above, I am of the opinion that the petitioners have an alternative remedy to file a declaratory suit before the court having competent jurisdiction.
Accordingly, present writ petition is dismissed on the ground of availability of alternative remedy.
Order Date :- 27.7.2022
VR
