Lautan vs State Of U.P. And 4 Others
2022 Latest Caselaw 8513 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Reserved on 26.07.2022
 
Delivered on 29.07.2022 
 
Court No. - 32
 

 
Case :- WRIT - B No. - 1656 of 2022
 

 
Petitioner :- Lautan
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Bhagwan Dutt Pandey,Jitendra Pratap Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dinesh Pathak,J.

Heard learned counsel for the petitioner, learned Standing Counsel and perused the record, at admission stage.

Challenge in the present writ petition is the order dated 02.03.2022 passed by the Board of Revenue (respondent no. 2) and order dated 14.09.1983 passed by Naib Tehsildar in proceeding under Section 34 of U.P. Land Revenue Act.

Facts culled out from the averment made in the writ petition are that the property in question belongs to one Lakhai. After the death of Lakhai, name of his wife Smt. Jhulari came to be recorded in the revenue record. After the death of Jhulari, dispute arose with respect to her succession. It appears that after her death, respondent no. 5 has filed an application for mutation under Section 34 of U.P. Land Revenue Act. During pendency of mutation application name of the present petitioner is recorded in the revenue record through PA-II on 03.02.1983. The Naib Tehsildar has allowed the aforesaid application filed on behalf of respondent no. 5, vide its order dated 14.09.1983, issuing a direction to record the name of respondent no. 5 in the revenue record in place of Smt. Jhulari and quashed the order dated 03.02.1983. Feeling aggrieved, petitioner has preferred an appeal before the Sub Divisional Officer, who has allowed the appeal, vide order dated 30.10.1986, and quashed the order dated 14.09.1983. Having being aggrieved, respondent no. 5 has filed a revision, which was allowed by the Additional Commissioner (respondent no. 3), vide order dated 10.06.1987, and referred the matter before the Board of Revenue for accepting the reference. Initially Board of Revenue has accepted the reference and allowed the revision, vide order dated 26.10.2018, but subsequently aforesaid order was recalled, vide order dated 18.12.2018, on the recall application filed on behalf of petitioner and finally, vide order dated 02.03.2022, Board of Revenue has accepted the reference made by Commissioner to allow the revision and set aide the order dated 30.10.1986 passed by the Sub Divisional Officer in appeal.

Learned counsel for the petitioner submits that the Additional Commissioner as well as Board of Revenue have lost sight of the factor that respondent no. 5 is claiming his right and title on the basis of the will deed dated 03.02.1982 said to have been executed by Jhulari whereas she herself had died on 31.01.1982 prior to the date of execution. It is further submitted that Sub Divisional Officer in its order dated 30.10.1986 has discussed the matter in detail and came to a conclusion that Jhulari was died on 31.01.1982, therefore, will deed dated 03.02.1982 is doubtful. It is further submitted that the Additional Commissioner as well as Board of Revenue have illegally allowed the revision filed on behalf of respondent no. 5 on the ground that the death certificate was not filed proving the date of death of Jhulari to be dated 31.01.1982. It is further submitted that both the courts have illegally ignored the family register wherein date of death was mentioned. It is next submitted that the family register is a public document and the same should be relied upon by the respondent nos. 2 and 3. In support of his contention learned counsel for the petitioner has relief upon the case of Mohammad Salim (D) vs. Shamsudeen (D) decided by the Hon'ble Supreme Court, reported in 2019(4) SCC 130. To strengthen the right and title of the petitioner over the property in question, counsel for the petitioner has also relied upon the case of Mursuthi vs. Deputy Director of Consolidation, Varanasi and others, reported in 2018 (10)ADJ 793 and the case of Shahzad vs. State of U.P., reported in 2019(4) ADJ 502.

Per contra, learned Standing Counsel has contended that the Additional Commissioner has given a categorical finding that there was no direct evidence with respect to the date of death of Jhulari, who according to the petitioner had died on 31.01.1982. It is further submitted that the respondent nos. 2 and 3 have rightly decided the matter. There is no illegality, perversity and infirmity in the order passed by the respondent nos. 2 and 3 in discarding the claim of the petitioner and the present petition deserves to be dismissed in limine.

Having regard to the documents on board and submissions advanced on behalf of the counsel for the parties, it is evident that the present matter has arisen out of mutation proceeding, which relates to the property of Jhulari, who was the recorded tenure holder. After the death of Jhulari, two sets of claim were filed. Present petitioner is claiming his right and title over the property in question on the basis of succession, whereas the respondent no. 5 is claiming his right and title over the property in question on the basis of the will deed dated 03.02.1982 said to have been executed by Jhulari, the recorded tenure holder.

Date of death of Jhulari and genuineness of the will deed are the important issues which are in controversy. As per the case of the petitioner, Jhulari had already died on 31.01.1982 prior to the date of execution of will, therefore, will deed dated 30.02.1982 set up by respondent no. 5 is a forged and fictitious document. Contention of the petitioner with regard to the date of death of Jhulari to be 31.01.1982 has been accepted by the Sub Divisional Officer on the basis of the entry made in the family register but Additional Commissioner and the Board of Revenue have discarded such entry for want of proper death certificate issued by the competent authority. Additional Commissioner as well as Naib Tehsildar have given a categorical finding that report of A.D.O. Panchayat shows that Jhulari had died in the month of Jeth (May) not in the month of January, 1982. Further finding recorded that will was duly registered and its execution has also been proved by the marginal witness Mahatma. The Additional Commissioner has given a finding that the date of death mentioned in the family register appears to be an after thought and subsequent fabrication. The reference made by the Additional Commissioner to allow the revision filed on behalf of respondent no. 5 has legally been accepted by the Board of Revenue, vide impugned order dated 02.03.2022, affirming the order dated 14.09.1983 passed by the Naib Tehsildar. There is no justifiable ground to interfere in said orders. Perusal of order dated 10.06.1987 and 02.03.2022 reveals that the same have been passed after going through all the documents available on record.

So far as the cases cited by the counsel for the petitioner are concerned, they are not fully applicable in the present case. Instant writ petition is arising out of a mutation case, therefore, same cannot be tried or examined as a full fledged title suit, as desired by learned counsel for the petitioner in citing the aforesaid judgments. I do not find any justifiable ground to interfere in the orders passed by respondent nos. 2, 3 and 4.

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 crystallize 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 petitioner has an alternative remedy to file a declaratory suit before the court having competent jurisdiction.

Accordingly, present writ petition, being misconceived and devoid on merits, is dismissed with no order as to costs.

Order Date :- 29.7.2022

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