Krishna Singh And Another vs Addl. Commissioner Gorakhpur And ...
2023 Latest Caselaw 7913 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 22.02.2023
 
Delivered on 20.03.2023
 
Court No. - 9
 

 
Case :- WRIT - C No. - 26953 of 2000
 

 
Petitioner :- Krishna Singh And Another
 
Respondent :- Addl. Commissioner Gorakhpur And Others
 
Counsel for Petitioner :- R.C. Singh,Deepak Kumar Jaiswal,Omkar Nath Rai,Virendra Singh
 
Counsel for Respondent :- C.S.C.,O.P. Pandey,Santosh Kumar Singh
 

 
Hon'ble Rohit Ranjan Agarwal,J.

In Re: Civil Misc. Recall Application No. NIL of 2023

1. This application has been filed by counsel for respondent no. 3 for recalling/expunging the observation made on 14.02.2023 against respondent counsel as he has not appeared in the Court on that date.

2. I have heard the respondent counsel and perused the material on record.

3. Cause shown sufficient.

4. The observation made against counsel for respondent no. 3 on 14.02.2023 is hereby recalled.

5. In view of above, application stands disposed of.

In Re: Writ Petition

1. Heard Sri A.P. Tewari, learned counsel for the petitioners, learned Standing Counsel for respondent nos. 1 and 2 and Sri Santosh Kumar Singh, learned counsel appearing for respondent no. 3.

2. This writ petition has been filed for quashing the entire proceedings initiated by respondent no. 3 under Section 34 of U.P. Land Revenue Act, 1901 (hereinafter called as "Act of 1901") and orders dated 15.10.1999, 02.02.2000 and 06.05.2000.

3. This case has a chequered history. Initially, one Raj Bali Singh was the bhumidhar of plot of Khata No. 203, 203Aa, 203Sa, 204, 61, 61Aa, 61Ba, 62, 134 and 26 situated in Village- Raja Pakad, District- Kushinagar. After death of Raj Bali Singh, one Madhurani claiming to be daughter filed Suit No. 1660/1980 under Section 229-B of the U.P.Z.A. and L.R. Act for declaring her as co-tenure holder along with one Sri Vilas, Lallan and Indrajeet. On the admission of the defendants, suit was decreed on 10.06.1980. A recall application was moved by petitioners under Order 9 Rule 13 CPC. During the pendency of the application, the village in question was brought under consolidation operation and notification under Section 4 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter called as "Act of 1953") was published. The Sub-divisional Officer on 26.08.1988 allowed the recall application and restored the case to its original number and further held the proceedings to be abated in view of Section 5(2) of the Act of 1953. Against the said order, Madhurani filed revisions before the Commissioner and thereafter before the Board of Revenue which were dismissed and thereafter the said order was carried to this Court through Writ Petition No. Nil of 1993 wherein this Court on 07.07.1993 while disposing of the writ petition found that the order passed by Sub-divisional Officer on 26.08.1988 setting aside the ex-parte order dated 10.06.1980 needs no interference however the Court deleted the words that, ''file is restored to original number'.

4. In the meantime, father of petitioners, Sri Vilas had filed objections under Section 9-A(2) of the Act of 1953 challenging the entry which existed in the name of Madhurani. Other objections were filed by Dharma, Virendra and Harkesh claiming right over the plot in question. The Consolidation Officer decided the objections on 28.09.1985 and rejected the claim of father of petitioner, however, he recorded finding that Madhurani was not the daughter of Raj Bali Singh and Dharma is the daughter of Raj Bali. Against the order passed by Consolidation Officer, several appeals under Section 11(1) of the Act were preferred before the Assistant Settlement Officer Consolidation, Gorakhpur being Appeal No. 3142 to 3147. In the meantime, publication under Section 52 of the Act was made in respect of Mauja- Raja Pakad, Tehsil- Tamkuhiraj, Kushinagar on 09.09.1989. The Assistant Settlement Officer, Consolidation on 25.06.2002 decided the appeal and held that Sri Vilas, father of petitioners was entitled to only half the share. Against the order of the Assistant Settlement Officer Consolidation revision was filed under Section 48(1) of the Act of 1953 before the Deputy Director Consolidation, which is still pending. Sri Vilas had died during the pendency of the appeal and names of petitioners were substituted on the records. During the pendency of appeal, Madhurani executed a registered Will in favour of present respondent no. 3 on 11.11.1993 and thereafter she died on 12.03.1994. No substitution application was moved by present respondent no. 3 on the basis of the Will before the SOC in the appeal.

5. However, an application under Section 34 of the Act of 1901 was moved for mutating the name of respondent no. 3 on the revenue records. The said application was allowed on 15.10.1999. Petitioners moved a recall application and Tehsildar- Tamkuhiraj on 31.12.1999 passed a conditional order staying the order dated 15.10.1999 if the same was not complied with. The said order was challenged by respondent no. 3 in revision and vide order dated 02.02.2000 order passed by Tehsildar on 31.12.1999 was stayed. Against this order, petitioners filed an appeal under Section 210 of the Act of 1901 along with a stay application and on 25.02.2000, the order dated 15.10.1999 was stayed. Aggrieved by the said order, respondent no. 3 preferred a revision and by order dated 06.05.2000, operation of order dated 25.02.2000 was stayed. Hence, the present writ petition.

6. Learned counsel for the petitioners states that once the proceedings launched during the pendency of the consolidation proceedings, mutation proceedings cannot proceed and rights and title of the parties shall be decided by consolidation authorities and not by the revenue authorities under Section 34 of the Act of 1901. According to him, proceedings under Section 34 are summary in nature and does not decide the right and title of the parties and is only for fiscal purpose. Reliance has been placed upon the decision of co-ordinate Bench of this Court in case of Kalawati vs. Board of Revenue and 6 others, 2022 (4) ADJ 578.

7. Per contra, counsel appearing for respondent no. 3 submitted that claim of respondent no. 3 is on the basis of the Will of Madhurani which was executed in the year 1993 and has been proved in proceeding under Section 34 before the Tehsildar and as such it is independent of the consolidation proceedings and the name of respondent no. 3 was mutated after a detailed order was passed. According to him, Madhurani was the daughter of Raj Bali and as the declaratory suit was abated in view of Section 5(2), the objections filed by father of petitioners was not accepted by Consolidation Officer and their right till date has not been perfected and the revision is pending before the Deputy Director, Consolidation.

8. I have heard respective counsel for the parties and perused the material on record.

9. The present writ petition challenges the mutation proceedings initiated by respondent no. 3 during the subsistence of the consolidation proceedings though it is a settled law that mutation proceedings being summary in nature drawn on the basis of possession of the parties do not decide any question of title and orders passed in such proceedings do not come in the way of person getting his rights adjudicated in a regular suit. This has been constant view of this Court in catena of judgments.

10. However, in the present case, respondent no. 3, Sanjiv Kumar claims to be the heir of Late Madhurani on the basis of the Will dated 11.11.1993. The declaratory suit filed by Madhurani under Section 229-B was initially decreed, but on a recall application moved by petitioners the order dated 10.06.1980 was recalled and the proceedings stood abated in view of Section 5(2) of the Act of 1953. Thereafter, the parties had filed objections under Section 9-A(2) of the Act before the Consolidation Officer which were decided on 28.09.1985 wherein it was held that Madhurani was not the daughter of Late Raj Bali Singh. Against the order of Consolidation Officer, number of appeals were filed by different parties before the Assistant Settlement Officer, Consolidation. The orders passed by Assistant Settlement Officer, Consolidation have been carried in revision before the Deputy Director of Consolidation through Revision No. 145 of 2002 which is still pending consideration.

11. It was during pendency of appeal that Madhurani had died and respondent no. 3 instead of filing a substitution application in the appeal filed by Madhurani filed application under Section 34 of the Act of 1901. The Will executed by Madhurani was to be proved before the consolidation authorities as it was the only competent authority/court to decide the right and title of the parties and Will was to be proved in view of Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act.

12. Mutation proceedings are summary proceedings and no right and title is decided in the said proceedings. Usually, this Court does not interfere in mutation matters and the order passed by revenue authorities exercising power under Section 34 and thereafter an appeal is not entertained while exercising jurisdiction under Article 226 of the Constitution of India. However, in exceptional case, the writ petitions are entertained against orders passed in mutation proceeding.

13. Co-ordinate Bench of this Court in case of Kalawati (supra) had in detail provided as to when a writ petition could be entertained against orders in mutation proceedings. Relevant para 40 of the judgment is extracted hereasunder:-

"40. Having regard to the foregoing discussion the exceptions under which a writ petition may be entertained against orders passed in mutation proceedings would arise where :

(i) the order or proceedings are wholly without jurisdiction;

(ii) rights and title of the parties have already been decided by a competent court, and that has been varied in mutation proceedings;

(iii) mutation has been directed not on the basis of possession or on the basis of some title deed, but after entering into questions relating to entitlement to succeed the property, touching the merits of the rival claims;

(iv) rights have been created which are against provisions of any statute, or the entry itself confers a title by virtue of some statutory provision;

(v) the orders have been obtained on the basis of fraud or misrepresentation of facts, or by fabricating documents;

(vi) the order suffers from some patent jurisdictional error i.e. in cases where there is a lack of jurisdiction, excess of jurisdiction or abuse of jurisdiction;

(vii) there has been a violation of principles of natural justice."

14. From perusal of the aforesaid judgment, it is clear that court can enter into questions relating to entitlement to succeed to property, which touches the merit of rival claims. In the instant case, the objections filed under Section 9-A(2) of the Act of 1953 decided by Consolidation Officer was carried in appeal and thereafter the matter is pending before Deputy Director, Consolidation through revision filed by the parties.

15. The pendency of the revision before the DDC is admitted to both the parties. Deputy Director of Consolidation is the last fact finding court which is empowered to decide the claim of parties giving a finding on the factual aspect as well on the legal issue. Once, the revision is pending before the Deputy Director of Consolidation where the right and title of the parties has to be adjudicated the proper remedy for respondent no. 3 is to get his Will tested before the consolidation authorities as revenue court would not decide the title in a summary proceedings under Section 34.

16. Therefore, this Court finds that the mutation proceedings pending before the revenue court is unsustainable in the eye of law and the same are hereby quashed. The rights and title of the parties are to be finally decided by Deputy Director Consolidation in revision which is the last fact finding court.

17. Considering the facts and circumstances of the case, this Court finds that orders impugned dated 15.10.1999, 02.02.2000 and 06.05.2000 are unsustainable in the eyes of law and the same are hereby set aside.

18. Writ petition succeeds and is allowed. However, no order as to costs.

Order Date :- 20.3.2023

V.S.Singh