Allahabad High Court
Om Prakash vs Secy., Board Of Revenue, Lucknow ... on 21 September, 2023
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:60901
Court No. - 18
Case :- WRIT - B No. - 825 of 2023
Petitioner :- Om Prakash
Respondent :- Secy., Board Of Revenue, Lucknow And 9 Others
Counsel for Petitioner :- Shitla Prasad Tripathi,Jai Prakash Yadav
Counsel for Respondent :- C.S.C.,Pradeep Kumar Tiwari
Hon'ble Saurabh Lavania,J.
Heard learned Counsel for the parties.
In view of the order proposed to be passed by this Court, notice to the private-respondents is dispensed with.
The present petition has been filed for the following main relief:-
"(i) Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 24.07.2023 as well as order dated 23.06.2015 passed by opposite party no. 1 and 2 contained as Annexure No. 1 & 2 to the writ petition."
By means of the present petition, the petitioner has challenged the order dated 24.07.2023 passed by respondent no.1- Board of Revenue, Lucknow, in Revision No. 255 (Ved Prakash Versus Lalit Ram and Others) and connected Revision No. 1685 of 2015 (Om Prakash Versus Lalit Ram and Others), which were filed under Section 219 of U.P. Land Revenue Act, 1901 (in short "Act of 1901") and the order dated 23.06.2015 passed in appeal No. 70/98/117 (Jeeva Ram and Others Versus Ved Prakash and Others), passed by respondent no.2/Additional Officer First, Basti.
In nutshell in this petition the order(s) under challenge relates to mutation proceedings.
It would be apt to take note of the fact, which has been indicated by the learned counsel for the parties, that the claim of opposite party no.4-Sri Kant is based on registered gift deed dated 08.05.1970 executed by one Ganpat in favour of Lalit Ram (father of opposite party no.4) and others and the claim of the petitioner is based on unregistered will dated 19.02.1973 executed by Ganpat in favour of Om Prakash (petitioner), Ved Prakash and Ravindra Prakash.
It would also be relevant to indicate, at this stage, that learned counsel for the Caveator/contesting opposite party no.4 namely Sri Kant son of Late Lalit Ram stated that order dated 24.07.2023 and 23.06.2015, challenged in the present petition have also been challenged by Ved Prakash and Ravindra Prakash before this Court at Allahabad by preferring Writ - B No.3060 of 2023, which is pending consideration. He also very fairly submitted that in that petition Om Prakash is not the petitioner and he can, as per law, institute a writ petition and the fact related to pending petition before this Court at Allahabad, has also not been disputed by the learned counsel for the petitioner.
It is also to be noted that a suit for cancellation of registered gift deed dated 19.03.1973, which, is the basis of the claim of opposite party No.4, instituted by the petitioner and two others namely Ved Prakash and Ravindra Prakash, is pending as OS No.000164 of 2015 before competent court of jurisdiction at Basti.
The case for mutation instituted under Section 34 of the Act of 1901 as Case No.355 (Ved Prakash vs. Ganpat & Others) was decided finally on 17.11.1975 by the Tehsildar concerned and this order was passed in favour of the petitioner and two others namely Ved Prakash and Ravindra Prakash.
Challenging the order dated 17.11.1975, an appeal was filed i.e. Appeal No.70/98/117 under Section 210 of the Act of 1901 and the Appellate Court, after taking note of the gift deed dated 08.05.1970 and judgment of the Hon'ble Apex Court passed in the case of Renikuntala Rajamma (Dead) Through L.Rs. vs. K. Sarwanamma; reported in 2015 (126) RD 616 allowed the same vide order dated 23.06.2015.
This order was challenged by the petitioner by way of filing the Revision bearing No.1685 of 2015 under Section 219 of the Act of 1901 and the revisional authority, after observing that the appellate court has not committed any material irregularity as also that the entries in the revenue record are fiscal in nature and they do not confer any right or title and based upon the same, the title cannot be presumed, dismissed the revision vide impugned order dated 24.07.2023.
In the aforesaid background of the case, present petition has been filed.
Mutation proceedings are summary in nature and they do not decide any right or title between the parties; rather they are drawn only for fiscal purposes.
Furthermore, the order passed in mutation proceedings are always subject to declaration of rights which may be sought by the parties concerned by instituting a regular suit.
Section 40A of the U.P. Land Revenue Act, 1901, (now repealed) as also Section 39 of U.P. Revenue Code, 2006, which is applicable w.e.f. 11.02.2016, make it clear that no mutation order shall debar any person from establishing his rights in the land by means of a regular suit. Mutation of a property in revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue. The mutation proceedings do not adjudicate the rights of the parties and orders passed in mutation proceedings are always subject to adjudication by competent Court.
Considering the aforesaid facts indicated, in brief, hereinabove, including that a suit for cancellation of the gift deed dated 08.05.1970 is pending consideration as also the law related to the mutation proceedings and an opportunity to get the title declared under the law itself is available to the aggrieved party, this Court is not inclined to entertain the present petition.
Accordingly, the present petition is disposed of finally with liberty to the petitioner to press the suit for cancellation of gift deed pending as O.S. No. 000016 of 2015 and he is also at liberty to press the application seeking interim protection in the said suit. The liberty is also granted to the petitioner to prefer a suit for declaration in terms of Section 144 of U.P. Revenue Code 2006 as also to prefer an application under Section 146 of the Code of 2006, seeking interim protection.
At this stage, learned counsel for the petitioner states that opposite party No.4 would alienate or transfer or create charge over the property in dispute.
In response, learned Counsel for the side opposite Sri Pradeep Kumar Tiwari, says that opposite party no. 4 would neither alienate nor transfer or create charge over the property in dispute for a period of three months as it would be sufficient time to get interim protection from the competent court. Ordered accordingly.
It is also expected from the trial court, where the case for cancellation of gift deed is pending, the trial court shall make all endeavour to decide the case at the earliest as the dispute between the parties is pending since 1975, as initial order passed was in mutation case, on 17.11.1975 .
Order Date :- 21.9.2023
Jyoti/-
