Smt. Shakuntla And 2 Others vs State Of U.P. And 4 Others
2023 Latest Caselaw 143 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 5
 

 
Case :- WRIT - B No. - 3675 of 2022
 

 
Petitioner :- Smt. Shakuntla And 2 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Sheetla Sahai Srivastava
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Singh,Vivek Mishra
 

 
Hon'ble Dinesh Pathak,J.

Heard learned counsel for the petitioners, learned Standing Counsel for the respondent nos. 1, 2, 3 and learned counsel for the respondent no. 5.

The petitioners have invoked the extraordinary jurisdiction of this Court by filing the instant writ petition under Article 226 of the Constitution of India challenging the order dated 16.11.2022 passed by the Board of Revenue U.P., Circuit Court-1, Meerut.

Facts culled out from the averments made in the writ petition and its annexures are that the present writ petition is arising out of mutation proceeding under Section 34 of U.P. Land Revenue Act, 1901. Respondent no. 4 Smt. Ramshree (now deceased) had moved a mutation application claiming her right and title over the property in question being widow of Sardar Singh, who was the original tenure holder. She had also prayed for to delete the name of Naipal Singh (predecessor in the interest of the petitioners) whose name was recorded through P.A-11, vide order dated 11.04.1995, being son of Sardar Singh. It was averred in the application that Naipal Singh was not the real son of Sardar Singh, however, he was born with the previous husband of the applicant Smt. Ramshree, therefore, he is not entitled to inherit the property of Sardar Singh. The application was opposed by the present petitioners who claimed their right and title being successor of Naipal Singh. The Tehsildar, vide order dated 19.09.2016, has allowed the application filed on behalf of respondent no. 4. The petitioners have filed restoration application, which was allowed and later on fresh order dated 30.10.2018 was passed affirming the earlier order dated 19.09.2016. Having been aggrieved against the order passed by the Tehsildar, petitioners have preferred an appeal, which was dismissed by the Sub Divisional Officer vide order dated 16.04.2019. Having been aggrieved, petitioners have preferred revision before the Additional Commissioner which was allowed vide order dated 21.09.2019. On revision being filed on behalf of respondent no. 4, the Board of Revenue has allowed the revision and reversed the judgment passed by the Additional Commissioner. Having been aggrieved against the order passed by the Board of Revenue instant writ petition has been filed on behalf of the petitioners.

Learned counsel for the petitioners submits that the mutation application was moved at a belated stage. The mutation application was result of manipulation inasmuch as on the date of mutation application a will deed was also got executed in favour of respondent no. 5. It is further submitted that the revisional court has rightly decided the matter in favour of the petitioners after considering all the documentary evidence available on record, which has illegally been ignored by the Board of Revenue in deciding the revision filed on behalf of contesting respondent. It is further submitted that the Board of Revenue has illegally influenced with the factum of murder of Naipal Singh and incarceration of his wife (petitioner no. 1) in the murder case of Naipal Singh.

Per contra, learned counsel for the respondent no. 5 has contended that under Section 114(c) of U.P. Revenue Code 2006 a person, who has committed murder of the recorded tenure holder is not entitled to inherit the interest of the deceased in any holding being successor. It is further contended that the Board of Revenue has rightly reversed the judgment passed by the learned Additional Commissioner who has illegally allowed the revision without properly appreciating the evidence available on record. It is further submitted that there is no evidence on record to prove that Naipal Singh was the son of Sardar Singh born out of wedlock with respondent no. 4. It is further contended that instant writ petition is arising out of mutation application, which is a summary in nature, therefore, petitioners have an alternative remedy to file a declaratory suit before the court competent. It is next submitted that there is no illegality, perversity and ambiguity in the order passed by the Board of Revenue which may warrant indulgence of this court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, therefore, instant writ petition, being devoid of merits, may be dismissed in limine.

Having considered the rival submissions advanced by the learned counsel for the parties and perusal of record it reveals that the instant writ petition is arising out of mutation case initiated on behalf of respondent no. 4 under Section 34 of U.P. Land Revenue Act. Ultimately, mutation application moved on behalf respondent no. 4 was allowed directing her name to be recorded in the revenue record. Board of Revenue has returned finding of fact in discarding the claim of petitioners over the property in question and upholding the claim of respondent no. 4 being widow of recorded tenure holder namely Sardar Singh. No justifiable ground is made out to interfere in the judgment impugned. There is no illegality, perversity and ambiguity in the order passed by the Board of Revenue warranting indulgence of this court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.

Even otherwise 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 crystalise 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 is disposed of.

Order Date :- 3.1.2023

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