Allahabad High Court
Mohammad Faraz Ali Khan And Others vs Addl. Commissioner, Lko. Division Lko. ... on 14 May, 2024
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:36867
Court No. - 18
Case :- WRIT - C No. - 4291 of 2024
Petitioner :- Mohammad Faraz Ali Khan And Others
Respondent :- Addl. Commissioner, Lko. Division Lko. And Others
Counsel for Petitioner :- Surendra Kumar Mishra,Ajay Kumar Chuabey,Prabhat Kumar
Counsel for Respondent :- C.S.C.,Yogesh Chandra Srivastava
Hon'ble Manish Kumar,J.
1. The present writ petition has been preferred for quashing of the impugned Revisional order dated 23.04.2024 passed under Section 210 of the U.P. Revenue Code, 2006; impugned order dated 29.08.2022 passed by respondent no. 2 i.e. Sub-Divisional Officer (Judicial), Bilgram, District Hardoi and the order dated 02.04.2014 passed by respondent no. 3 i.e. Naib Tehsildar, Shahabad, District Hardoi and with a further prayer to direct the opposite party no. 1 to 3 to mutate the name of the petitioners in place of deceased Aabid Ali upon his property i.e. Khata No. 1574, Gata No. 1631 & 1632, situated at village Shahabad, District Hardoi.
2. Learned counsel for petitioner has submitted that the petitioners are the grandson of late Aabid Ali i.e. the original tenure holder. Shri Aabid Ali had two sons namely Sajid Khan (who dies issueless) and Shahid Khan. The petitioners are the sons of Shahid Khan i.e second son of late Aabid Ali.
3. After the demise of their grandfather, the petitioners had moved an application under Section 34 of the Land Revenue Act, 1901 and the same was rejected by order dated 02.04.2014, against the petitioners by not accepting of will executed by late Aabid Khan, in favour of the petitioners. Against the said order, the petitioners had preferred an appeal under Section 210 of the Land Revenue Act, 1901 which was allowed by judgment and order dated 19.08.2014 with a specific finding that the will is proved and the petitioners are in possession.
4. Against the said appellate order, the respondent preferred a revision under Section 219 of the Land Revenue Act, 1901 which was partly allowed by judgment and order dated 21.08.2020 and remanded the matter to the appellate Court to decide the same in pursuance of the observations made in the judgment.
5. It is further submitted that it is not out of place to mention here that the revision preferred by respondents on a limited point of genuineness of the will and revision was not filed on the finding given by the appellate court regarding possession of the petitioners. While remanding the matter, the revision preferred by the respondents was partly allowed and as mentioned above, it was remanded to the appellate authority to consider the same in the light of the findings given in the judgment and those findings are nothing but findings on the genuineness of the will so, the finding of possession is intact in favour of the petitioners. After the remand, the appellate Court had decided the matter against the petitioners by judgment and order dated 29.08.2022. Against the said appellate order, the petitioners had preferred a revision which is dismissed by impugned order dated 23.04.2024 and feeling aggrieved by the same, the present writ petition has been filed.
6. After arguing at some length, learned counsel for petitioner has confined his prayer to the extent that the findings given in the impugned order dated 02.04.2014 passed by the Naib Tehsildar, in the proceedings under Section 34 of the L.R. Act, 1901, the impugned appellate order dated 29.08.2022 and the impugned revisional order dated 23.04.2024 as far as the findings given on the will produced/relied by the petitioner as the Revenue Courts are not competent to look into the genuineness of the will as the proceedings are summary in nature.
7. It is further submitted that the findings regarding the genuineness of the will relied upon by the petitioners before the authorities, for the same will a the suit for cancellation of the will has already been preferred by the respondent no. 4 before the competent court and placing reliance on the same findings given in the order of the Tehsildar, the appellate order and the revisional order which may affect or cause prejudice to the petitioner.
8. It is further submitted that the findings given in the above mentioned impugned orders may not be taken into consideration in the suit preferred by the respondent no. 4 for cancellation of the will executed in favour of the petitioners by their grandfather, the original tenure holder, late Aabid Ali.
9. Learned counsel for respondents, Shri Mohd. Arif Khan, learned Senior Advocate, assisted by Shri Yogesh Chandra, has submitted that it is not disputed that the proceedings of mutation under the L.R. Act, 1901 and the consequential proceedings upto the stage of revision are the summary proceedings and as per the law settled, the respondent no. 4 is not in a position to dispute that the genuineness of the will could only be seen by the competent Court of law and for that, a suit has already been filed in the Civil Court.
10. After hearing learned counsel for the parties and going through the records of the case, the position which emerges out is that the petitioners were claiming their rights for the purpose of mutation on the basis of the will executed by their grandfather late Aabid Ali, the mutation proceedings are summary in nature and it could only be decided on the basis of possession of the parties as provided under Section 40 of the L.R. Act, 1901. It is also an admitted case by both the counsels that the proceedings are summary in nature and the genuineness of the document could not be seen as the genuineness of the document is to be seen by the competent court of law.
11. It is also admitted by learned counsel for respondent no. 4 that for cancellation of will, the respondent no. 4 has already preferred a suit against the petitioners and the same is pending. Once the position is admitted to both the parties as mentioned above, the findings given in the impugned orders dated 02.04.2014, 29.08.2022 and 23.04.2024 with regard to the genuineness of the will to the effect that the will is suspicious, will not cause any prejudice or read against the petitioner in the suit preferred by respondent no. 4 for cancellation of the will executed in favour of the petitioners and the matter shall be decided by the competent court on the merits of the case.
12. In view of the facts, circumstances and discussion made hereinabove, the present writ petition is partly allowed.
Order Date :- 14.5.2024
DiVYa
