Smt. Usha vs Additional Commissioner ...
2023 Latest Caselaw 6016 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 3
 

 
Case :- WRIT - C No. - 6435 of 2023
 
Petitioner :- Smt. Usha
 
Respondent :- Additional Commissioner Administration-2 Saharanpur Division And 4 Others
 
Counsel for Petitioner :- Anupam Kulshreshtha,Sudhir Kumar Kulshrestha
 
Counsel for Respondent :- C.S.C.,Kaushal Kishore Mani
 

 
Hon'ble Anish Kumar Gupta,J.

1. Heard Shri Anupam Kulshrestha, learned counsel for the petitioner, Shri Abhineet Jaiswal, learned Standing Counsel and Shri Kaushal Kishore Mani, learned counsel for Gaon Sabha.

2. The petitioner claims to be the daughter and the only successor of original tenure holder Rakkha Singh with respect to Gata Plot No.204 area 1.2510 hectare, situated in village Jataula, Damodarpur, Pargana-Nagal, Tehsil-Deoband, District Saharanpur. 

3. It is stated that a gift deed was allegedly executed by the said Rakkha Singh on 14.01.2020 bequeathing plot no.204 area 0.9765 hectare in favour of respondent no.5- Smt. Kemwati therein.

4. It is further stated that respondent No.5 has filed a Suit No.284 of 2020 (computerized No.T-202009600400284) claiming the mutation of her name on the basis of aforesaid gift deed dated 14.01.2020. The petitioner, thereafter, filed her objection and stated that the aforesaid gift deed executed by Rakkha Singh who was terminally ill since two and half years before his death. The petitioner had got him treated and Rakkha Singh had recovered and he again fell ill, when the said gift deed has been obtained by respondent no.5 by undue influence. After death of said Rakkha Singh, the Respondent No.5 filed the Suit No.284 of 2020 for mutation of her name on the basis of the said gift deed. The aforesaid Suit No.284 of 2020 (computerized no.T-202009600400284) (Smt. Kemwati Vs. Rakkha Singh and others) was allowed and on the basis of registered gift deed dated 14.01.2020, the name of respondent no.5 was mutated in place of original tenure holder late Rakkha Singh.

5. Against the aforesaid order dated 5.10.2020, the petitioner had filed an appeal, under section 35(2) of the U.P. Revenue Code,2006, which was dismissed by the Sub Divisional Magistrate, respondent no.2 vide its order dated 16.04.2021 and upheld the judgment and order dated 5.10.2020 passed by  respondent No.3, Tehsildar.

6. Against the aforesaid judgment and order dated 16.04.2021, the petitioner has filed a revision being Revision No.1452 of 2021, under section 210 of U.P. Revenue Code, 2006. The aforesaid revision has also been dismissed by the Additional Commissioner (Administration-II), Saharanpur Division, Saharanpur vide its order dated 15.12.2022. Aggrieved the same, the petitioner has filed the instant writ petition. 

7. Learned counsel for the petitioner vehemently submitted that without examining the registered gift deed in accordance with Section 67 of Evidence Act, the authorities below could not have mutated the name of respondent No.5. He has relied upon the paragraph No.7 of the judgment passed by the Hon'ble Supreme Court in Shri Ram Vs. Ist. Additional District Judge, reported in 2001 (3) SCC 24, which is as as under:

"7. On analysis of the decisions cited above, we are of the opinion that where a recorded tenure holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession."

8. Learned counsel for the petitioner has also relied upon paragrpah no.12 of the judgment of the Hon'ble Supreme Court in Kamla Kant Pathak Vs. Krishna Kant Pathak and others, reported in 2007 (4) SCC) 213, which is as under:

"12. In this connection, the learned counsel for the appellant rightly relied upon a decision of this Court in Shri Ram & Anr. v. Ist Addl. Distt. Judge & Ors., (2001) 3 SCC 24. In Shri Ram, A, the original owner of the land sold it to B by a registered sale deed and also delivered possession and the name of the purchaser was entered into Revenue Records after mutation. According to the plaintiff, sale deed was forged and was liable to be cancelled. In the light of the above fact, this Court held that it was only a Civil Court which could entertain, try and decide such suit. The Court, after considering relevant case law on the point, held that where a recorded tenure holder having a title and in possession of property files a suit in Civil Court for cancellation of sale deed obtained by fraud or impersonation could not be directed to institute such suit for declaration in Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. "

9. In the aforesaid judgments the Hon'ble Supreme Court has held that it was only a Civil Court which could entertain, try and decide such suit with regard to cancellation of a deed, which is alleged to have been executed by means of fraud etc.

10. It is submitted by the learned Standing Counsel that mutation proceedings, under sections 34 and 35 of U.P. Land revenue Act are summary proceedings and the tile of the petitioner questioning the validity of a gift deed cannot be decided in a summary proceedings, for which remedy lies before the Civil Courts.

11. Learned Standing Counsel has relied upon section 39 of the U.P. Revenue Code, 2006, which is as under:-

" 39. Certain orders of Revenue Officers not to debar a suit :- No order passed by a Revenue Inspector under Section 33, or by a Tehsildar under sub-section (1) of Section 35 or by a Sub-Divisional Officer under sub-section (3) of Section 38 or by a Commissioner under sub-section (2) of Section 35 or sub-section (4) of Section 38 shall debar any person from establishing his rights to the land by means of a suit under Section 144."

12. The learned Standing Counsel further referred to order dated 5.04.2022 passed by this Court in Writ B No.295 of 2022 (Smt. Kalawati Vs. The Board of Revenue and 6 others) while referring sections. Paragraph Nos.31 to 34 of the said judgment and order are reproduced below;  

"31. The aforementioned section clearly provides that no person shall be debarred from establishing his rights to the land by means of a declaratory suit under Section 144, irrespective of the fact that an order has been passed by; (i) a Revenue Inspector under Section 33 (mutation in case of succession), or (ii) a Tehsildar under sub-section (1) of Section 35 (mutation in case of transfer or succession), or (iii) a Sub-Divisional Officer under sub-section (3) of Section 38 (correction of error or omission), or (iv) a Commissioner under sub-section (4) of Section 38 (correction of error or omission).

32. Section 39 which expressly provides that the orders passed by revenue officers in cases of a mutation and correction of revenue entries would not debar filing of a declaratory suit, is a substantive provision, and corresponds to a similar provision contained under Section 40-A of the U.P. Land Revenue, 1901 (now repealed).

33. The language of the section emphasizes that it applies to all orders passed by the revenue officers in matters relating to mutation and correction of errors or omission of revenue entries and it provides in clear terms that such order shall not debar any person from establishing his rights to the land by means of a declaratory suit under Section 144.

34. The object of the section being to enable a person to seek declaration of his rights on questions of title irrespective of the orders passed in mutation proceedings with regard to correction of revenue entries, the remedy of seeking a declaration on questions of title by filing a declaration suit remains open. The existence of an efficacious statutory alternative remedy would therefore also be a reason for not entertaining a writ petition in exercise of discretionary jurisdiction under Article 226."

13. The learned Standing Counsel further submits that once a deed is properly executed and registered after the satisfaction of the registrar, the same shall be presumed to be a validly executed deed and the validity of the same can be challenged only before Civil Courts.

14. In the instant case, the petitioner is challenging the validity of execution of the registered gift deed dated 14.01.2020 executed by the registered tenure holder late Rakkha Singh, which is presumed to be a validly executed document, therefore the validity of the same cannot be challenged in the revenue proceeding for mutation, which are of summary nature.

15. The effective and efficacious remedy for the petitioner is available either under Section 144 of the U.P. Revenue Code, 2006 for declaration of her title or to challenge the validity of the gift deed executed by the original tenure holder by instituting the Civil Suit before the concerned court for cancellation of the said gift deed.

16. The Court has consciously gone through the orders passed by the respondent Nos. 3, 2 and 1, which were passed in revenue proceedings of summary nature. The Court do not find any illegality in the orders passed by the authorities below. Hence, the writ petition is dismissed.

Order Date :- 24.2.2023

SFH