Allahabad High Court

Masuda Begum vs State Of U.P. And 2 Others on 16 August, 2023

Bench: Chandra Kumar Rai





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:164059
 
Court No. - 51
 

 
Case :- WRIT - C No. - 13983 of 2023
 

 
Petitioner :- Masuda Begum
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- A.C.Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. A.C. Srivastava. Counsel for the petitioner and learned Standing Counsel for State-respondents.

2. Stamp reporter has reported laches of 427 days in filing the writ petition.

3. The instant writ petition has been filed for quashing the order dated 22.09.2021 passed by Additional Commissioner and order dated 26.10.2020 passed by Sub Divisional Magistrate under Section 34 of U.P.Revenue Code, 2006.

4. Brief facts of the case are that mutation proceeding under Section 34 of Land Revenue Act was initiated by respondent No.2 Mazeb Khan on the basis of registered will deed executed in his favour as well as his mother (respondent No.3) on 11.06.2015 by Gulam Mohd. Khan deceased recorded tenure holder. Tehsildar Vide order dated 16.12.2015 allowed the mutation case in favour of respondent Nos.2 and 3 in respect to plots of khata No.91, 92 and 93 situated at village-Balla Mazra, Tehsil-Oon, District-Shamli. Against the order dated 16.12.2015 petitioner filed a restoration application on 10.06.2016. Learned Tehsidar vide order dated 10.4.2018 set aside the order dated 16.12.2015 and restored the case to its original number for fresh decision in the mutation matter. Learned Tehsildar in pursuance of the order dated 10.04.2018 decided the mutation proceeding vide order dated 23.12.2019 by which petitioner was directed to be recorded along with respondent Nos.2 and 3 as well as one daughter over the disputed plot in place of recorded deceased tenure holder Gulam Mohd. Khan. Against the order dated 23.12.2019 an appeal has been filed by respondent Nos.2 and 3 which was allowed vide order dated 26.10.2020 setting aside the order dated 23.12.2019 and directed that name of respondent Nos.2 and 3 be recorded on the basis of will deed executed on 11.06.2015. Against the order dated 26.10.2020 petitioner filed revision under Section 210 of U.P. Revenue Code, 2006 which has been dismissed by Additional Commissioner vide order dated 22.09.2021, hence this writ petition on behalf of petitioner for quashing the order dated 22.09.2021 and 26.10.2020.

5. Counsel for the petitioner submitted that Tehsildar has rightly ordered to record the name of the petitioner as well as respondent Nos.2 and 3 on the basis of succession but in appeal, the order has been illegally interfered with and the name of the respondent Nos.2 and 3 were directed to be recorded on the basis of alleged will deed dated 11.06.2015. He further submitted that order passed by Tehsildar was in accordance with law as the finding was recorded that the will deed alleged to be executed in favour of respondent Nos.2 and 3 was surrounded by suspicious circumstances. He further submitted that appeal filed by respondent Nos.2 and 3 has been illegally allowed and respondent Nos.2 and 3 were ordered to be recorded on the basis of will deed, which has not been proved in accordance with law. He further submitted that revison filed by petitioner has been dismissed in arbitrary manner. He further submitted that impugned order passed in appeal and revision be set aside and the order passed by Tehsildar dated 23.12.2019, recording name of the petitioner along with respondent Nos.2 and 3 be affirmed.

6. In reply, learned Standing Counsel for the State submitted that writ petition arises out of mutation proceeding as such the same is not maintainable. He further submitted that appellate Court has rightly ordered to record the name of respondent Nos.2 and 3 on the basis of registered will deed, which has not been cancelled by any Court of law. He further submitted that finding of fact recorded by appellate court is in accordance with law and no interference is required by this Court in exercise of writ jurisdiction.

7. I have considered the arguments advanced by parties and perused the record.

8. There is no dispute about the fact that mutation of respondent Nos.2 and 3 was initially allowed by Tehsildar vide order dated 16.12.2015 but by subsequent order of Tehsildar dated 23.12.2019 both parties were ordered to be recorded . There is also no dispute about the fact that in appeal order of Tehsildar dated 23.12.2019 has been set aside and order was passed to record the name of respondent Nos.2 and 3 on the basis of registered will deed executed on 11.06.2015 in favour of respondent No.2.

9. The Sub-Divisional Magistrate while deciding the appeal has considered the entire controversy and has recorded the finding that respondent Nos.2 and 3 were living along with deceased Gulam Mohd. Khan. The finding of fact has also been recorded that deceased-recorded tenure holder Gulam Mohd. Khan has executed will deed in favour of respondent Nos.2 and 3 as such respondent Nos.2 and 3 is entitled to be recorded on the basis of will deed which has not been challenged in any other proceeding. The finding of fact recorded by the appellate court will be relevant for perusal, which is as under:"

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10. Considering the finding of fact recorded by the Sub Divisional Magistrate, there is no scope for interference against the order recording the name of respondent Nos.2 and 3 on the basis of registered will deed in exercise of summary proceeding. No interference is required against the impugned judgment and writ petition is hereby dismissed.

11. It is made clear that the order passed in mutation proceeding shall not prevent the petitioner to file a suit for declaration of her right and title in accordance with law.

Order Date :- 16.8.2023

PS*