Vijay Kumar vs State Of U.P. And 5 Others
2023 Latest Caselaw 4130 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 7
 

 
Case :- WRIT - C No. - 25296 of 2022
 

 
Petitioner :- Vijay Kumar
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Dileep Kumar Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Dileep Kumar Srivastava, learned counsel for the petitioner and Sri Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondent.

2. Brief facts of the case are that one Smt. Gena Devi @ Gaura Devi widow of Shaleshar was recorded tenure holder of the plot in dispute. According to the Petitioner, Gena Devi @ Gaura Devi has executed unregistered will deed dated 16.06.1997 in favour of petitioner. Gena Devi @ Gaura Devi has died on 09.04.1998. It is also mentioned in the writ petition that Gena Devi has also executed a registered will deed in favour of respondent Nos.5 and 6 on 21.06.1991, which has been cancelled by unregistered will deed alleged to be executed on 16.06.1997 in favour of the petitioner. On the basis of registered will deed dated 21.06.1991 mutation was applied by respondent Nos.5 and 6, which was allowed by the Tehsildar vide order dated 21.05.1998 following due procedure of law.

3. Petitioner filed a restoration application under Section 201 of U.P. Land Revenue Act for recalling of the order dated 21.05.1998, the Naib Tehsildar vide order dated 20.12.2000 recalled the mutation order dated 21.05.1998 and restored the mutation case on its original number. Against the order dated 20.12.2000 respondent Nos.5 and 6 filed a revision under Section 219 of U.P. Land Revenue Act before the Revisional Court on ground that mutation order dated 21.05.1998 was passed on merit following due procedure of law as well as on the basis of unregistered will deed executed by recorded tenure holder Smt. Gena Devi in favour of respondent Nos.5 and 6. Accordingly, revisional Court vide order dated 16.08.2003 allowed the revision setting aside the order dated 20.12.2000. Petitioner challenged the order dated 16.08.2003 through revision before the Commissioner and Commissioner Basti Division Basti vide order dated 03.03.2021 dismissed the revision hence this writ petition.

4.Stamp reporting Section has reported latchs of 78 days in filing the writ petition.

5. Counsel for the petitioner submitted that petitioner is claiming right on the basis of will deed executed by recorded tenure holder Smt. Gena Devi @ Gaura Devi although will deed is unregistered one, but without affording opportunity of hearing to the petitioner, the mutation order has been passed in favour of respondent Nos.5 and 6 who are claiming on the basis of registered will deed executed by recorded tenure holder Gena Devi @ Gaura Devi, as such the Naib Tehsildar has rightly set aside ex-parte mutation order and restored the mutation case for decision afresh on merit. He further submitted that revision against the order restoring the mutation case on its original number has been set aside in arbitrary manner with the finding that earlier order for mutation passed in favour of respondent Nos. 5 and 6 is on merit. He further submitted that will deed which is executed in favour of the petitioner although is unregistered will deed but the earlier will deed executed in favour of the respondent Nos.5 and 6 has been cancelled, as such the petitioner is entitled to be recorded on the basis of subsequent will executed by recorded tenure holder Smt. Gena Devi. He further submitted that impugned order be set aside and direction be issued that the mutation case be decided afresh on merit after affording opportunity of hearing to the petitioner also.

6. On the other hand, learned Additional Chief Standing Counsel for the State-respondent submitted that the writ petition arises out of mutation proceeding, which are summary in nature, as such no interference is required in the matter and writ petition is liable to be dismissed.

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

8. There is no dispute about the fact that recorded tenure holder of the plot in dispute was Smt. Gena Devi @ Gaura Devi, who executed a will deed on 21.06.1991 in favour of respondent Nos.5 and 6 accordingly, after death of Gena Devi, mutation application filed by respondent Nos.5 and 6 was allowed vide order dated 21.05.1998. There is also no dispute about the fact that petitioner claimed right on the basis of subsequent unregistered will deed alleged to be executed by Gena Devi on 16.06.1997. There is also no dispute about the fact that restoration application filed by the petitioner against the mutation order passed in favour of respondent Nos.5 and 6 has been recalled but in revision filed by respondent Nos.5 and 6 the order restoring the mutation case on its original number has been set aside and revision filed by petitioner has been dismissed.

9. Petitioner is claiming on the basis of unregistered will deed in which it is mentioned that Gena Devi is cancelling her earlier registered will deed which was executed in favour of respondent Nos.5 and 6. It is also material that mutation court has passed the order of mutation in favour of respondent Nos.5 and 6 in the year 1998 on the basis of registered will deed executed in favour of respondent Nos.5 and 6 after following due procedure of law i.e. issuance of notice/ proclamation etc. as such restoration of the mutation order passed in mutation case on the basis of registered will deed is abuse of process of law.

10. There is another aspect of the case that registered will deed executed in favour of respondent Nos. 5 and 6 has been alleged to be cancelled by unregistered will deed which is violation of provisions contained under Section 92 proviso (4) of the Indian Evidence act, 1872, which runs as follows:

?Proviso (4).--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.?

11. Hon'ble Apex Court in the case reported in 2000(91) RD 615, S. Saktivel (Dead) by L.R.s vs. M. Venugopal Pillai and Others has discussed the scope of Section 92 proviso 4, the paragraph no. 7 of the judgment is relevant which is as follows:-

"In sum and substance what proviso (4) to Section 92 provides is that where a contract or disposition, not required by law to be in writing, has been arrived at orally then subsequent oral agreement modifying or rescinding the said contract or disposition can be substantiated by parol evidence and such evidence is admissible. Thus if a party has entered into a contract which is not required to be reduced in writing but such a contract has been reduced in writing, or it is oral in such situations it is always open to the parties to the contract to modify its terms and even substitute a new by oral contract and it can be substantiated by parol evidence. In such kind of cases the oral evidence can be let in to prove that the earlier contract or agreement has been modified or substituted by new oral agreement. Where under law a contract or disposition are required to be in writing and the same has been reduced in writing, its terms cannot be modified or altered or substituted by oral contract or disposition. No parol evidence will be admissible to substantiate such an oral contract or disposition. A document for its validity or effectiveness is required by law to be in writing and, therefore, no modification or alteration or substitution of such written document is permissible by parol evidence and it is only by another written document the terms of earlier written document can be altered, rescinded or substituted. There is another reason why the defendant/appellant cannot be permitted to let in parol evidence to substantiate the subsequent oral arrangement. The reason being that the settlement deed is a registered document. The second part of proviso (4) to Section 92 does not permit leading of parol evidence for proving a subsequent oral agreement modifying or rescinding the registered instrument. The terms of registered document can be altered, rescinded or varied only by subsequent registered document and not otherwise. If the oral arrangement as pleaded by the appellant if allowed to be substantiated by parol evidence it would mean re- writing of Ex.A/1 and, therefore, no parol evidence is permissible."

12. Considering the facts and circumstances of the case as well as ratio of law laid down by Apex Court in Saktivel (Supra) no interference is required against the impugned orders passed in the summary proceeding arises out of Section 34 of the U.P. Land Revenue Act. The writ petition is devoid of merit and it is accordingly, dismissed.

13. It is needless to say that judgment/ observation occurring in the order impugned as well as any observation in the order of this Court essentially pertaining to mutation proceeding, which shall not be decisive of the material issue arising for determination of civil suit, which is alleged to be pending before Civil Court.

Order Date :- 9.2.2023/PS*