Chainu @ Chaina And 6 Others vs State Of Up And 7 Others
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Allahabad High Court

Chainu @ Chaina And 6 Others vs State Of Up And 7 Others on 30 May, 2024

Author: Ashutosh Srivastava

Bench: Ashutosh Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:100743
 
Court No. - 5
 

 
Case :- WRIT - C No. - 7570 of 2024
 

 
Petitioner :- Chainu @ Chaina And 6 Others
 
Respondent :- State Of Up And 7 Others
 
Counsel for Petitioner :- Dhananjay Kumar Thakur
 
Counsel for Respondent :- C.S.C.,Deepak Gaur
 

 
Hon'ble Ashutosh Srivastava,J.
 

1. Heard Shri D.K. Thakur, learned counsel for the petitioners and learned Standing Counsel representing the State respondents.

2. Considering the nature of the order that is proposed to be passed notice upon the private respondent nos. 5 to 8 is being dispensed with.

3. The writ petition has been filed questioning the judgment and order dated 30.10.2023, passed by the Commissioner, Jhansi Division, Jhansi, in Revision, registered as Case No. 35 of 2023, Kamla (since deceased) Chainu and others vs. Kaliya @ Kathit (since deceased) Pyare Lal, under Section 219 of the UP Land Revenue Act as well as the order dated 18.11.2022, passed by the Sub Divisional Officer, Pali, Tehsil Pali, District-Lalitpur in appeal registered as Case No. 47 of 2012-13, Kamla Vs. Kaliya @ Kathit, under Section 210 of the UP Land Revenue Act.

4. A further prayer in the nature of mandamus commanding the respondents not to dispossess the petitioners from Arazi No. 534/2, 535/2 Min, 546/1, 548/2, situate in village Jamundhana Kala, Tehsil-Pali, District-Lalitpur and not interfere in the peaceful possession of the petitioners over the plot in question has been claimed.

5. It is the case of the petitioners that one Manka S/o Parma, who is stated to be dumb and a man of unsound mind, was the recorded Bhumidhari of Arazi No. 535/2 Minjumla, area 0.1500 Hectare, Arazi No. 534/2 area 0.4620 Hectare, Arazi No. 546/1 Area 1.2140 Hectare and Arazi No. 548/2 Area 0.0570 Hectare, situate in village Jamundhana Kala, Tehsil-Pali, District-Lalitpur. Said Manka is stated to have executed a Will Deed, in favour of his sister namely Smt. Kaliya W/o Balu Chamar, on 21.07.1995. It is alleged that Smt. Kaliya obtained the alleged Will, in her favour, by committing forgery. Manka is stated to have three brothers. The name of Smt. Kaliya was mutated in the Revenue records after the death of Manka on the basis of the Will, vide order dated 04.01.1999 passed by the Nayab Tehsildar, Tehsil-Pali, District-Lalitpur. The petitioners are the nephew of said Manka. It is submitted that the father of the petitioners nos. 1 to 3 and 5 to 7 filed an Appeal, being Appeal No. 36 of 1998-1999/31 Kamla & others vs. Kaliya @ Kathit, before the Sub Divisional Magistrate, Pali, District Lalitpur, under Section 210 of the Land Revenue Act, against the order dated 04.01.1999 recording the name of Smt. Kaliya on the basis of the Will dated 21.07.1995. The number of the Appeal was subsequently converted as Case No. 47 of 2012-13. The said Appeal came to be rejected vide order dated 18.11.2022. The orders dated 18.11.2022 and 04.01.1999 were put to challenge by the petitioners in Revision before the Commissioner, Jhansi Mandal, Jhansi. The Revision was registered as Case No. 35 of 2023. The revision has been rejected vide order dated 30.10.2023.

6. Learned counsel for the petitioners argued that the Appellate as well as the Revisional Court have manifestly erred in rejecting the Appeal and the Revision inasmuch as the said Manka was dumb and a man of unsound mind and was completely enable to speak and cannot have executed the alleged Will. The alleged Will is forged and fictitious document and could not have been relied upon for the purposes of mutating the name of Smt. Kaliya who is stated to be the beneficiary under the alleged Will. It is also argued that the said Manka, being dumb and a man of unsound mind, without appointment of a guardian and manager of his estate no Will could have been executed. It is further submitted that the petitioners are in possession over the property in dispute. However their rights are being curtailed on account of the impugned orders. It is accordingly prayed that the impugned orders be set aside and the writ petition be allowed.

7. Learned Standing Counsel appearing for the State respondents submits that the order dated 04.01.1999, passed by the Nayab Tehsildar concerned, mutating the name of Smt. Kaliya, in pursuance of the Will executed by Manka in favour of Smt. Kaliya has considered in detailed and recorded the findings of fact that the Will was duly proved and order dated 04.01.1999 is a reasoned order. The Appellate Authority as well as the Revisional Authority have committed no illegality in rejecting the Appeal and Revision, filed by the petitioners. Even otherwise the writ petition arises out of mutation proceedings which confer no title and are only for the fiscal purposes and no right title or interest can be said to flow from such summary proceedings and if the petitioners are aggrieved by execution of the Will in favour of Smt. Kaliya they can assail the same in appropriate proceedings.

8. I have heard learned counsel for the parties and have perused the record.

9. Admittedly, the present writ petition arises out of mutation proceedings. The Appellate as well as the Revisional Authority has recorded findings of fact that the name of Smt. Kaliya was recorded in the Revenue records and after her death, name of her legal heirs stand duly recorded in the Revenue records. Both the authorities have repelled the arguments of the petitioners that the Manaka was not possessed of the right to execute the Will and that the petitioners have not undertaken any proceedings till date to get the Will cancelled. The mutation has been ordered on the basis of the registered Will. As has been stated in the earlier preceding paragraphs that the mutation proceedings being summary in nature do not decide any question of title and the orders passed in such proceedings do not come in the way of a person getting his rights adjudicated in a regular suit and it is for the said reason that the consistent view taken by the Court is that such petitions are not to be entertained in exercise of powers under Article 226 of the Constitution of India. The question of maintainability of the writ petition arising out of mutation proceedings came to be considered by the coordinate Bench in Writ B No. 295 of 2022, Smt. Kalawati vs. Board of Revenue and 6 others, in which the Court after discussing the nature of the said mutation proceedings and the maintainability of the writ petition in paragraph 40 of the aforesaid judgment held as under:

"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. "

10. In the case at hand the grounds of challenge, on which the mutation order, in favour of the predecessor in interest of the private respondent nos. 5 to 8, has been laid is that the testator Manka was dumb and a man of unsound mind and as such could not execute Will in favour of Smt. Kaliya, the predecessor in interest of the private respondents, in absence of any Guardian appointed to manage his estate. In the opinion of the Court, the said factum as to whether Manka was in fact dumb and a man of unsound mind and lack the capacity to execute the Will is a matter of evidence which cannot be determined in summary proceedings such as mutation proceeding and any attempt to adjudicate the said issue in the summary proceedings would certainly be beyond the scope and purview of such proceedings. Admittedly, the alleged Will executed by Manka, in favour of Smt. Kaliya, has not been questioned before the appropriate forum till date. The mutation order passed by the Nayab Tehsildar, concerned, dated 04.01.1999 is a well reasoned order considering all aspects of the matter and the Appellate and Revisional Authority have rightly not interfered with the same.

11. In view of the above, this Court is not inclined to entertain the writ petition by exercising its discretionary jurisdiction, under Article 226 of the Constitution of India.

12. Accordingly, the writ petition is dismissed.

Order Date :- 30.5.2024

Deepak/