Allahabad High Court
Rakesh And 4 Others vs State Of U.P. And 4 Others on 5 January, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- WRIT - C No. - 28370 of 2022
Petitioner :- Rakesh And 4 Others
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Saurabh Kumar Pandey
Counsel for Respondent :- C.S.C.,S B Singh
Hon'ble Chandra Kumar Rai,J.
Heard Sri Saurabh Kumar Pandey, learned counsel for the petitioners, Sri S.B. Singh, learned counsel for respondent nos.4 & 5 and learned Standing Counsel for respondent nos.1 to 3.
Brief facts of the case are that one Awadhnath Singh was owner of disputed plot who died and the name of the petitioners was recorded vide order dated 7.1.2014 passed by Revenue Inspector. Respondent nos.4 & 5 applied for mutation of their names on the basis of Will-deed executed on 21.9.1996 by Awadnath Singh. Petitioners filed their objection in the aforementioned mutation case and respondent no.3 (Tahsildar) vide order dated 24.7.2017 allowed the mutation in favour of respondent nos.4 & 5 on the basis of Will-deed executed on 21.9.1996, the order of Revenue Inspector dated 7.1.2014 for recording the name of petitioners was set aside. Petitioners filed appeal against the order dated 24.7.2017 which was dismissed by Sub-Divisional Magistrate, Mehnagar, Azamgarh vide order dated 20.7.2022, hence this writ petition.
Learned counsel for the petitioners submitted that the mutation under Section 34 of the U.P. land Revenue Act has been arbitrarily decided in favour of the contesting respondents on the basis of alleged Will-deed.He further submitted that will-deed alleged to be executed on 21.9.1996 is suspicious as deceased has executed a sale-deed also in respect to the same property. He further submitted that the objection of the petitioners has not been considered by the Mutation Court. He next submitted that the civil suit for cancellation of the Will deed in question has been filed by the petitioners in the civil court which is pending. He finally submitted that mutation Court has not considered the case of the petitioner in accordance with law, as such, impugned order be set aside and matter be remanded back before the mutation Court for fresh decision.
On the other hand, learned counsel for respondent nos.4 & 5 submitted that civil suit for cancellation of the registered will deed in question has been filed by the petitioners, as such, no interference is required against the impugned orders passed in the summary proceeding. He further submitted that the writ petition against the order passed in the summary proceeding is not maintainable in view of the judgment of this Court passed in Smt. Kalawati Vs. Board of Revenue and Others, reported in (2022) 155 R.D. 169.
I have considered the argument advanced by learned counsel for the parties and perused the records.
There is no dispute about that there is registered Will deed in favour of the contesting respondents and the mutation order has been passed on the basis of Will deed in question.
Mutation Court (Tahsildar) after considering the oral and documentary evidence on record including the evidence of marginal witness of the will-deed has recorded finding that the respondent nos. 4 & 5 have proved the case of their mutation on the basis of the will-deed in question accordingly mutation application of respondent nos.4 & 5 was allowed.
Since the civil suit for cancellation of the Will deed in question has been filed by the petitioner in the year 2014, which is pending before the civil Court, as such, no interference is required against the impugned judgment.
Writ petition is devoid of merit and the same is accordingly, dismissed. It is needless to say that the order passed in the mutation proceeding is always subject to the decision by the competent Court which is pending in the present case before Civil Court.
Order Date :- 5.1.2023
Rameez
