Prashant Kumar vs State Of U.P. And 11 Others
2023 Latest Caselaw 554 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 7
 

 
Case :- WRIT - C No. - 31692 of 2022
 

 
Petitioner :- Prashant Kumar
 
Respondent :- State Of U.P. And 11 Others
 
Counsel for Petitioner :- Sharad Chandra Upadhyay
 
Counsel for Respondent :- C.S.C.,Annapurna Devi,Bhupendra Kumar Tripathi,Brijesh Chandra Naik
 
along with
 
Case :- WRIT - C No. - 31612 of 2022
 

 
Petitioner :- Prashant Kumar
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Sharad Chandra Upadhyay
 
Counsel for Respondent :- C.S.C.,Annapurna Devi,Bhupendra Kumar Tripathi,Brijesh Chandra Naik
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Sharad Chandra Uapdhaya, learned counsel for the petitioner, learned standing counsel for respondents 1 to 4, Mr. Bhupendra Kumar Tripathi, learned counsel for respondent No.12 Gaon Sabha and Mr. B.C. Naik, learned counsel for respondent No. 11 in Writ C No.31692 of 2022 and for respondent No.5 in Writ B No.5 in Writ C No.31612 of 2022.

2. Writ C No. 31692 of 2022 has been filed for the following reliefs:-

"(i) Issue a writ in the nature of Certiorari quashing the Judgement and order dated 05.09.2022 passed by Commissioner, Varanasi Division Varanasi in Revision No. 710 of 2021 (Computerized No. c202114000000710) Prashant Kumar vs. Land Revenue Act 1901 (Annexure No. 23 to this writ petition).

(ii) Issue a writ in the nature of Certiorari quashing the order dated 23.11.2020 passed by Sub Divisional Magistrate Sadar, District Varanasi in appeal No. T201414700122172 under Section 210 of Land Revenue Act (Akbal Narayan vs. State) (Annexure No. 17 to this writ petition).

(iii) Issue a writ in the nature of Certiorari quashing the judgement and order dated 21.09.2013 passed by Tehsildar (Sadar), District Varanasi in suit No. 1556 of 2010 along with other suits under Section 34 of Land Revenue Act Akbal Narayan vs. Champa Devi, (Annexure No. 8 to this writ petition).

(iv) Issue appropriate writ or direction in the nature of Mandamus directing the Respondents to not give effect of the orders dated 05.09.2022, 23.11.2020 and 21.09.2013 passed by Respondent Nos. 2, 3 and 4."

3. Writ C No. 31612 of 2022 has been filed for the following reliefs:-

"(i) Issue a writ in the nature of Certiorari quashing the Judgement and order dated 05.09.2022 passed by Commissioner, Varanasi Division Varanasi in Revision No. 709 of 2021 (Computerized No. C202114000000709) Prashant Kumar vs. Shailendra Kumar Rai under Section 219 of U.P. Land Revenue Act 1901 (Annexure No. 26 to this writ petition).

(ii) Issue a writ in the nature of Certiorari quashing the order dated 23.11.2020 passed by Sub Divisional Magistrate Sadar, District Varanasi in appeal no. 1290 of 2017 (Computer Case No. D2017147001290) under Section 210 of Land Revenue Act read with Section 35 (2) of U.P. Revenue Code 2006 Prashant vs. Shailendra Kumar Rai whereby appeal filed against the mutation order has been rejected (Annexure No. 20 to this writ petition).

(iii) Issue a writ in the nature of Certiorari quashing the judgements and orders dated 03.06.2016 and 04.06.2016 passed by Tehsildar (Nyayik) Sadar, District Varanasi in suit No. T201514700171 of 2015 under Section 34/35 of Land Revenue Code, 2006 Shailendra Kumar Rai vs. State whereby mutation order has been passed rejecting the preliminary objection of the Petitioner in the Arazi in question (Annexure No. 15 and 16 to this writ petition).

(iv) Issue appropriate writ or direction in the nature of Mandamus directing the Respondents to not give effect of the orders dated 05.09.2022, 23.11.2020, 03.06.2016 and 04.06.2016 passed by Respondent Nos. 2, 3 and 4."

4. Since common questions are involved in both the writ petition as such, both the writ petitions are being heard and decided together.

5. Brief facts of the case are that one Ramjaddi Kunwar was the recorded tenure holder of the plots in dispute. Petitioner is claiming right on the basis of succession and one Champa Devi was claiming right on the basis of registered will deed executed in her favour by her mother Ramjaddi Kunwar. Champa Devi, grandmother of Shailendra Kumar Rai (contesting respondent in both the writ petition) filed an application under Section 34 of U.P. Land Revenue Act for mutation of her name in place of deceased-Ramjaddi Kunwar, the case was registered as case No. 782 of 1990 before Tehsildar Sadar, Varanasi. Some other cases were also filed for mutation of their names in the place of Ramjaddi Kunwar in respect to the holdings situated in Village Sirgovardhanpur and Village Dafi. In the aforementioned mutation case filed by Champa Devi, several sets of objections were filed claiming themselves to be successor of deceased Ramjaddi Kunwar. One land acquisition reference Case No. 251 of 1987 was also filed by one Badri Narayan, which is still pending before Additional District Judge VIth Varanasi. Champa Devi has filed application for her impleadment in aforementioned land acquisition reference Case No. 251 of 1987 on the basis of will deed executed in her favour. The record of mutation case No. 782 of 1990 was summoned before Land Acquisition Reference Court. On the basis of Pa. Ka. 11 name of Champa Devi was ordered to be recorded vide order dated 06.08.2009 passed by Revenue Inspector treating Champa Devi as successor of Ramjaddi Kunwar. One Trilok Narayan Singh moved an application dated 15.01.2010 for setting aside the order dated 06.08.2009, which was rejected vide order dated 03.02.2010. Trilok Narayan Singh challenged the order dated 03.02.2010 by filing revision, which was decided on 25.11.2010 directing Tehsildar Sadar Varanasi to decide the mutation case after giving opportunity of hearing to the parties. Against the order passed by revisional court dated 25.11.2010, Champa Devi filed a writ petition No. 15112 of 2011 before this Court, which was dismissed vide order dated 07.08.2013 with observation that Revisional Authority has remanded the matter before the court of Tehsildar as such, no interference is required. One contempt application No. 6845 of 2014 was filed for the non-compliance of the order dated 07.08.2013 passed in writ petition No. 15112 of 2011, which was disposed off vide order dated 04.12.2014 with a direction to Tehsildar to comply the order within two months. Tehsildar has already passed the order dated 21.09.2013 by which the name of deceased Ramjaddi Kunwar was ordered to be expunged and in her place the name of Champa Devi was ordered to be recorded.

6. Against the order dated 21.09.2013 passed by Tehsildar, an appeal was filed by one Akbal Narayan Singh (father of respondent Nos. 5 to 7) and during pendency of appeal, Champa Devi died on 03.12.2015.  After death of Champa Devi, an application under Order 22 Rule 4 of C.P.C. was filed by the other co-sharer to substitute the name of family members of Champa Devi as her heirs, which was allowed on 29.03.2016.

7. Against the order dated 29.03.2016, contesting respondent No. 11/5 (Shailendra Kumar Rai) filed his restoration application along with affidavit stating thereunder that he is the only heir of Champa Devi and he must be substituted only in place of Champa Devi. Accordingly he prayed for recalling the order dated 29.03.2016. Petitioner filed an application for his impleadment in appeal. Petitioner also filed his objection dated 26.09.2017. In the objection, petitioner has also mentioned that order dated 21.09.2013 is beyond jurisdiction as such, the same is liable to be recalled. In the objection, it is also mentioned that evidence of one Parmanand Rai was not completed as such the order passed for mutation of the name of Champa Devi on the basis of alleged will deed is illegal.

8. The Appellate Court vide order dated 23.11.2020 dismissed the appeal filed by Akbal Narayan Singh vide order dated 23.11.2020. Petitioner challenged the orders dated 23.11.2020 and 21.09.2013 through Writ C No. 4668 of 2021 and 4689 of 2021, which were disposed off vide order dated 18.03.2021 directing the petitioner to avail the alternative remedy of revision before the revisional court. On the basis of the order dated 18.03.2021, petitioner filed revision before respondent No. 2 as revision No. 709 of 2021 (Prashant Kumar vs. Shailendra Kumar Rai and others) and revision No. 710 of 2021 (Prashant Kumar vs. Shailendra Kumar Rai and others). In both the revisions, the stay applications were filed along with the revision on behalf of opposite party and objections were filed on 01.09.2021, which were admitted but stay applications were rejected.

9. Respondent No. 2 vide order dated 05.09.2022 dismissed the petitioner's Revision Nos. 709 and 710, hence Writ C No. 31612 of 2022 has been filed against the order passed in revision No. 709 of 2021 and Writ C No. 31692 of 2002 has been filed against the order passed in revision No. 710 of 2021.

10. Counsel for the petitioner submitted that petitioner is claiming right on the basis of succession but no proper opportunity has been afforded to the petitioner and the ex-parte mutation order has been passed in favour of Champa Devi. He further submitted that provisions contained under Rule-A 379 and 381 (Ga) of the Revenue Court, Manual has not been followed by the Tehsildar while passing the ex-parte mutation order dated 21.09.2013. He further submitted that one mutation case No. 782 of 1990 filed by Champa Devi is still pending, as such no further application for mutation should be entertained by the mutation court. He further submitted that claim of Champa Devi was sub-judice in land acquisition reference case 251 of 1987 as such her name cannot be recorded in place of Ramjaddi Kunwar. He further submitted that will allowed to be executed by Ramjaddi Kunwar in favour of Champa Devi has not been proved in accordance with law as such, the mutation order passed in favour of Champa Devi is illegal. He further submitted that appellate court as well as the revisional court has failed to examine the objection raised by petitioner and decided the appeal and revision in arbitrary manner. He finally submitted that writ petition be allowed, impugned orders be set aside and mater be sent back for fresh decision of mutation case on merit.

11. On the other hand, learned counsel for the contesting the respondent submitted that writ petition arises out of mutation proceedings, which are summary in nature as such, writ petitions under Article 226 of the Constitution of India against the order dated passed in the mutation proceedings are not maintainable in view of the judgment passed by this Court reported in (2022) 155 R.D. 169 Kalawati vs. Board of Revenue and others. He further submitted that claim of Champa Devi has been accepted by the Tehsildar vide order dated 21.09.2013 passed in case No.1556 of 2010 under Section 34 of the Land Revenue Act filed by other persons claiming themselves to be heir of Ramjaddi Kunwar, but petitioner has not filed any application for his mutation till date rather he started litigation in appeal filed in the year 2013 by one Akbal Narayan Singh, although Ramjaddi Kunwar has died long back in the years 1988. He further submitted in respect to the holdings situated in the village Dafi, the title dispute under Section 9 of the U.P. Consolidation of Holdings Act has been decided in favour of Champa Devi against which writ petition has been filed before this Court which is still pending but no interim order has been passed in the aforementioned writ petition. He further submitted that in Case No. 25 of 1989 filed by Ramjaddi Kunwar under Section 176 of U.P. Z.A. & L.R. Act Ramjaddi Kunwar has accepted that Champa Devi is her daughter & she has executed a will deed in favour of her daughter Champa Devi. He further submitted that although aforementioned suit under Section 176 of U.P. Z.A. & L.R. Act has been dismissed but the evidence adduced can be looked into in the subsequent proceedings. He further submitted that pendency of the land acquisition-reference case will not come in the way of the parties to press their claim before the mutation court as rightful claimant is to be recorded in place of deceased tenure holder. He further submitted that respondent No. 5/11 (Shailendra Kumar Rai) is heir of deceased Champa Devi on the basis of will deed dated 18.11.2008. He further submitted that no suit for cancellation of registered will deed dated 05.11.1988 has been filed in any court by petitioner as such the litigation at the instance of the petitioner in the summary proceeding is abuse of process of law. He next submitted that all the three courts have rightly decided the mutation case/appeal/revision as such, no interference is required against the impugned orders and writ petition is liable to be dismissed.

 12. I have considered the arguments advanced by learned counsel for the parties and perused the record.

13. There is no dispute about the fact that one Ramjaddi Kunwar was the recorded tenure holder of the plots in dispute and Champa Devi claims that she is daughter of Ramjaddi Kunwar and her mother Ramjaddi Kunwar has executed a registered will deed dated 05.11.1988 in her favour as such Champa Devi is the legal heir and entitled to be recorded in the revenue records. In case No. 25 of 1989 filed by Ramjaddi Kunwar under Section 176 of the U.P. Z.A. & L.R. Act. Ramjaddi Kunwar has accepted that Champa Devi is her daughter and she has executed a will deed dated 05.11.1988 in favour of her daughter Champa Devi. One Land Acquisition Reference No. 251 of 1987 is pending between the parties before the Additional District Judge, Varanasi. On the basis of Pa. Ka.11 the name of Champa Devi was ordered to be recorded in place of Ramjaddi Kunwar by Revenue Inspector vide order dated 06.08.2009, accordingly Trilok Narayan Singh initiated the proceeding which has resulted into passing of the order of Champs Devi under Section 34 of the U.P. Land Revenue Act for recording the name of Champa Devi in the place of Ramjaddi Kunwar vide order dated 21.09.2013. The order dated 21.09.2013 has been maintained in appeal and revision.

14. Since, in the consolidation proceedings, although in respect to another Village Dafi, the claim of Champa Devi in the title proceeding has been accepted and the writ petition against the order of Deputy Director consolidation is pending before this Court in which no interim order has been passed as such, the order of mutation court cannot be held to be illegal. The argument advanced by learned counsel for the petitioner that mutation matter be decided afresh as the order of consolidation court has been passed in respect to another village is misconceived as summary proceeding should not be dragged for unlimited period on misconceived ground; petitioner still has opportunity to file a suit for declaration of his right.

15. So far as the pendency of Land Acquisition Reference Case No. 251 of 1987 is concerned, the same is different proceeding and the pendency of that proceeding will not come in the way of mutation court to decide that who should be recorded in place of deceased tenure holder. It is also material that Ramjaddi Kunwar has died in the year 1988 and the petitioner has not filed any application for mutation of his name on the basis of succession as such,  the impleadment application/objection setup first time in appeal in the year 2013 is nothing but abuse of process of law.

16. It is also relevant to mention that even in the proceeding under Section 176 of the U.P. Z.A. & L.R. Act. Ramjaddi Kunwar has admitted that Champa Devi is her daughter and she has executed a will deed in favour of her daughter Champa Devi, which is also relevant piece of evidence, although the suit had been dismissed but the evidence can be examined in the subsequent proceeding in view of law laid down in 1994 R.D. 299 Ram Prashad (dead) by L.R.S. and others vs. Assistant Director of Consolidation & others.

17. Considering the entire facts and circumstances of the case,  no interference is required against the impugned orders passed by all the three courts below, in the summary proceedings under Section 34 of the U.P. Land Revenue Act. Writ petitions are devoid of merit and the same are hereby dismissed.

18. Needless to say that summary proceedings are always subject to decision of suit by competent court as such,  petitioner can file a suit for declaration of his right before the competent court.

Order Date :- 6.1.2023

Kalp Nath/PS*