District Cooperative Federation ... vs Naib Tehsildar, Amroha Tehsil, ...
2023 Latest Caselaw 5494 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 7
 

 
Case :- WRIT - C No. - 21879 of 2022
 

 
Petitioner :- District Cooperative Federation Limited
 
Respondent :- Naib Tehsildar, Amroha Tehsil, Distt. Amroha And 6 Others
 
Counsel for Petitioner :- Ashok Kumar Lal,Ravindra Narayan Singh
 
Counsel for Respondent :- C.S.C.,Hina Shafiq,Sunita Sharma,Vijay Chandra Srivastava,Zulfikar Ali
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Ravindra Narayan Singh, learned counsel for the petitioner, Mr. Vijay Chandara Srivastava & Ms. Hina Shafiq, learned counsel for private respondent nos.5, 6 & 7 and learned Standing Counsel for the State-respondents.

2. Brief facts of the case are that the petitioner is a registered cooperative society. Petitioner purchased land bearing SP No.2157M area 0.53 acre, 2182 area 0.30 acre & 2157M area 0.51 acre , SP No.2157M area 0.58 acre and SP No.2161 area 0.17 acre by registered sale deed dated 8.8.1970 executed by Gulam Mustafa, father of respondent nos.4 to 7 through general power of attorney holder Anwar Hussain. It is also mentioned in the writ petition that the petitioner is in possession of the plot on the basis of sale deed executed in his favour. On 21.7.2015, petitioner applied for mutation of his name on the basis of aforementioned sale deed dated 8.8.1970 under Section 33/34/35 of U.P. Revenue Code, 2006. Against the aforementioned mutation application filed by the petitioner, three objections were filed on 20.6.2016 stating that no sale deed was executed in the year 1970 in favour of petitioner by their father. Respondent no.1 i.e. Nayab Tahsildar, Amroha vide order dated 28.1.2019 dismissed the mutation application filed by the petitioner with the finding that general power of attorney was not produced on the record as well as name of Gulam Mustafa was entered into revenue records in the year 1965, therefore, execution and registration of power of attorney in the year 1960 itself is doubtful. Against the order dated 28.1.2019 passed by respondent no.1, petitioner filed an appeal before respondent no.2, under Section 35 (2) of U.P. Revenue Code, 2006 which was dismissed by appellate order vide order dated 7.1.2021, petitioner filed a revision, under Section 210 of U.P. Revenue Code, 2006, which was dismissed vide order dated 4.5.2022, hence this writ petition.

3. Learned counsel for the petitioner submitted that respondent no.1 has illegally dismissed the mutation application filed by the petitioner on the basis of registered sale deed executed in his favour in the year 1970 although the sale deed has not been cancelled by any Court of law. He further submitted that burden to prove the sale deed lies upon respondent nos.5 & 6 but the same has been wrongly shifted upon the petitioner. He next submitted that the finding recorded by respondent no.1 for disbelieving the registered sale deed executed through power of attorney holder is wholly illegal in view of the provisions contained under Section 55 (3) of the Transfer of Property Act, 1882. He also submitted that as per Section 7 of Transfer of Property Act, 1882 every person is competent to contract and entitle to transfer the property either wholly or in part, as such, finding recorded by respondent no.1 for disbelieving the sale deed executed in the favour of the petitioner is wholly illegal. He also submitted that the according to the provisions contained under Section 32, 33, 34 & 35 of Indian Registration Act, the power of attorney holder can execute and present a sale deed for registration, as such, non-production of power of attorney in the course of mutation proceeding will not entitle the mutation Court to refuse the mutation. He further submitted that according to the proviso of Section 55 (3) of the Transfer of Property Act, 1882 executant of the sale deed is not under obligation to handover the general power of attorney. He further submitted that as per Section 90 of Indian Evidence Act, certified copy of the document which is more than 20 years old and it is registered in accordance with the provisions of law may be presumed by the Court as to the authenticity of the signature, content and execution which signifies that the burden to prove lies on the person who asserts as such. He also submitted that there is no limitation for filing the mutation application, as such, the rejection of petitioner's application on the ground of limitation is illegal. He next submitted that the impugned order passed by the courts below are wholly illegal and liable to be set aside.

4. On the other hand, learned Standing Counsel and counsel for the contesting respondents submitted that the writ petition arises out of mutation proceeding is not maintainable in view of the law laid down in Smt. Kalawati Vs. Board of Revenue and Others, reported in (2022) 155 R.D. 169. They further submitted that the mutation application has been filed by the petitioner after about 43 years from the execution of the alleged sale deed which creates doubt about the sale deed in question. He next submitted that the petitioner is a district cooperative federation limited and is not ordinarily litigant but mutation application has been filed after about 43 years without any reasonable explanation for filing after a such long period of time. They also submitted that the finding of fact has been recorded by the Tahsildar for rejecting the mutation application on the ground that original copy of the sale deed has not been produced before the Court as well as power of attorney has not been produced before the Court. They also submitted that the finding of fact has been also recorded that the sale deed is found to be suspicious, as such, mutation application is liable to be rejected.

5. I have considered the argument advanced by learned counsel for the parties and perused the records.

6. There is no dispute about the fact that the mutation application has been filed by the petitioner (District Cooperative Federation Limited) in the year 2015 on the basis of sale deed executed in his favour on 8.8.1970 i.e. after about 43 years. There is also no dispute about the fact that all the three courts have rejected the mutation application, appeal and revision filed by the petitioner recording finding of fact for rejecting the mutation application.

7. It is material to state that the petitioner who is district cooperative federation limited has filed the mutation application after 43 years from the execution of sale deed in his favour without giving reasonable explanation for the same.

8. This Court in the case reported in 2015 (129) RD 495, Shardul Ranjan and Others Vs. Dy. Director of Consolidation, Mau and Others has held that although that there is no limitation for filing mutation application but delay creates doubt about the authenticity of the document on the basis of which the mutation has been applied. The relevant paragraph no.11 of the judgment is as follows:

"11. Even if the version of the petitioners that Smt. Chiraita Devi died on 23.5.2003, is accepted then also from their own evidence, the Will was surrounded with suspicious circumstances namely (i) The death of executor of the will occurred within a week of the execution of the Will, (ii) The executor was of 90 years old and was seriously ill and she was not in condition even to sit on cot. According to statement of petitioner-2, she was ill at that time for about three months. There is no evidence to show that she was in fit mental condition and executed the Will out of her own free will, without any coercion and undue influence, (iii) From the statement of the witnesses of the petitioners, it was proved that the propounders of the Will had taken active part in execution of the Will inasmuch as he obtained stamp paper on which the Will was executed, called scribe and attesting witnesses of the Will, (iv) If Smt. Chiraita Devi could be taken on car for her treatment, she could have gone to Sub-Registrar Office for registration of the Will (v) Smt. Kamla in her statement has stated that photo affixed on the Will dated 16.5.2003 was not photo of her mother Smt. Chiraita rather it was photo of wife of Suryabali and consolidation authorities found that photo affixed on the Will was not of a ill lady of 90 years old and (vi) Smt. Chiraita Devi died on 23.5.2003 but claim on its basis has been set up by the petitioners on 29.2.2008 i.e. about five years of her death on the basis of unregistered Will. Although no limitation has been provided for mutation but in the case of inheritance on the basis of unregistered Will, delay in disclosing the Will itself create a doubt in respect of its genuineness. In these circumstances the Will was surrounded with suspicious circumstances and the propounders have failed to explain suspicious circumstances. Supreme Court in H. Venkatachala v. B.N. Thimbajamtna, AIR 1959 SC 443. S.R. Srinivasa v. S. Padmavathamma, 2010 (111) RD 675 (SC) and M.B. Ramesh v. K.M. Veeraje, 2013 (120) RD 438 (SC) held that in case, the propounder has taken active part in execution of the Will, then it create a suspicious circumstance."

9. Considering the finding of fact recorded by the Tahsildar regarding filing of mutation application by the petitioner after about 43 years and non-production of general power of attorney on the record, no ground of interference under Article 226 of the Constitution of India is made out against the impugned order passed in the summary proceedings.

10. The writ petition is devoid of merit and is hereby dismissed.

Order Date :- 20.2.2023

Rameez