Allahabad High Court
Krishan Kumar Sharma And Another vs State Of U.P. And 5 Others on 30 January, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- WRIT - C No. - 25035 of 2022
Petitioner :- Krishan Kumar Sharma And Another
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Raj Kumar Dhama
Counsel for Respondent :- C.S.C.,Pradeep Kumar Srivastav,Sunil Kumar Singh
Hon'ble Chandra Kumar Rai,J.
Heard Mr. Raj Kumar Dhama, Counsel for the petitioners, learned Standing counsel for respondents no. 1, 2 and 3, Mr. Pradeep Kumar Srivastava, Counsel for respondents No. 4 and 5 and Mr. Sunil Kumar Singh for respondent no. 6-Gaon Sabha.
Brief facts of the case are that petitioners are the tenure holders of agricultural land of Khata No. 311, Khasra No. 664/1 area 0.4890 hectare, Khasra No. 663/1 area 0.0700 hectare total area 0.6280 hectare situated at village Niwada Bangar, Tehsil and District- Baghpat. Contesting respondents no. 4 and 5 alleged that petitioners have executed a sale-deed dated 18.01.2019 in favour of contesting respondents no. 4 and 5 and on the basis of the alleged sale-deed dated 18.01.2019 contesting respondent Nos.4 and 5 applied for mutation under Section 34 of U.P. Revenue Code, 2006 and got the ex-parte order dated 27.02.2019. Petitioners applied for recall/restoration along with the application for condonation of delay under Section 5 of Indian Limitation Act against the order dated 27.02.2019. Naib Tehsildar vide vide order dated 07.02.2020 rejected the delay condonation application as well as restoration application on the ground of limitation as well as on merit. Petitioners challenged the order of Naib Tehsildar dated 07.02.2020 rejecting the recall/restoration application through revision before the Commissioner. The Commissioner vide order dated 15th July, 2022 dismissed the revision filed by petitioners, hence this writ petition.
Counsel for the petitioners submitted that sale-deed set up by the contesting respondents was manipulated as such the mutation application filed by contesting respondents on the basis of aforementioned sale-deed cannot be allowed. He further submitted that mutation order was passed in ex-parte manner as such petitioners are required opportunity to contest the case on merit. He further submitted that recall/restoration application filed by petitioners against the order of mutation Court has been dismissed on the ground of limitation. He further submitted that revision filed against the order of Naib Tehsildar was also dismissed without considering the case of the petitioners in accordance with law. He further submitted that impugned orders be set aside and matter be sent back before the Court of Tehsildar/Naib Tehsildar to decide the mutation application afresh on merits.
On the other hand, counsel appearing for respondents no. 4 and 5 as well as counsel for the State and Gaon-Sabha submitted that writ petition arises out of mutation proceeding is not maintainable. They further submitted that mutation application filed by respondents no. 4 and 5 on the basis of sale-deed executed in their favour has been allowed as such no interference is required against the order of mutation passed in favour of respondents no. 4 and 5, which has not been cancelled by any court as such the mutation on the basis of sale-deed executed in favour of respondents no. 4 and 5 cannot be refused. They further submitted that validity of the sale-deed cannot be examined by Mutation Court as such the arguments advanced by the learned counsel for petitioners that sale-deed is illegal and manipulated is misconceived. They submitted that writ petition is liable to be dismissed.
I have considered the arguments advanced for learned counsel for parties and perused the record.
There is no dispute about the fact that Naib Tehsildar vide order dated 27.02.2019 ordered for mutation of the name of respondents no. 4 and 5 on the basis of registered sale-deed executed in respect to disputed plot by the petitioners. There is also no dispute about the fact that recall/restoration application filed by the petitioners as well as the revision filed by petitioners have been dismissed by the Naib Tehsildar and the Additional Commissioner, Meerut Division, Meerut.
Since the mutation application has been allowed by the Naib Tehsildar on the basis of registered sale-deed executed in favour of respondents no. 4 and 5 as such the mutation order passed by Naib Tehsildar dated 27.02.2019 cannot be interfered with unless the sale-deed in question is cancelled by regular court in regular proceedings.
The sale-deed in question admittedly has not been cancelled by any court of law as such the exercise of jurisdiction in the summary proceeding for examining the mutation order again and again is abuse of process of law.
It is also material that civil suit in respect to the property in dispute is also pending before civil court.
Considering the entire facts and circumstances of the case, no interference is required against the impugned orders.
Writ petition is devoid of merit and is dismissed accordingly.
Needless to say that order/judgment passed in the summary proceedings as well as observation made in the body of the judgment shall not be decisive for the parties to establish their claim in regular proceeding.
Order Date :- 30.1.2023
Salman/ PS*
