Allahabad High Court
Rajbali vs State Of Up And 9 Others on 7 July, 2025
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:105776
Court No. - 34
Case :- WRIT - C No. - 33836 of 2024
Petitioner :- Rajbali
Respondent :- State Of Up And 9 Others
Counsel for Petitioner :- Prem Narayan Rai
Counsel for Respondent :- Bhupendra Kumar Tripathi,C.S.C.
Hon'ble Rohit Ranjan Agarwal,J.
1. The petitioner before this Court claims to be a beneficiary of the alleged Will executed by his father late Salikram in the year 2007 alongwith his three brothers and his wife. In the mutation proceedings instituted by the petitioner, objections were filed by one Chandra Bali on the ground that the Will was not executed by late Salikram and he did not have competence to execute the Will in favour of the alleged beneficiary. it was further alleged by Chandrabali that late Salikram, during his lifetime, filed a civil suit No.121 of 2007 in which settlement was filed on 11.4.2007. The said objections were turned down by the Tehsildar and order for mutation was passed on 09.02.2015 against which an appeal was preferred before the Assistant Collector, First Class/Additional City Magistrtate-II, Varanasi which was dismissed against which a revision was preferred under Section 219 of the U.P.Land Revenue Act, 1901 before the Additional Commissioner (Administration), which has been allowed by the order impugned and the matter has been remitted back for consideration afresh.
2. Learned counsel for the petitioner submitted that the order of remand is against the provision of law and once the finding has been recorded by the Tehsildar as well as first Appellate Court, the order of remand should not have been passed. He further contends that there is an admission on behalf of the parties as to the execution of registered Will as such there is no necessity to get the Will proved by the attesting witness.
3. Sri B.K.Tripathi, learned counsel appearing for Gaon Sabha submits that the present writ petition has been filed against the remand order and the Will, as required under the proviso to Section 68 of the Evidence Act has not been proved.
4. Sri Abhishek Shukla, learned Additional Chief Standing Counsel has placed before Court the judgment rendered by coordinate Bench of this Court in Writ-B No.295 of 2022 (Smt. Kalawati vs. The Board of Revenue & 6 Ors.) decided on 05.04.2022 wherein it was held that writ petition against the mutation proceedings is not maintainable and would arise only in exceptional circumstances. He has relied upon para 40 of the judgment which is extracted hereasunder :
"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."
5. He has also placed reliance upon judgment of this Court in Writ-C No.16362 of 2021 (Subhash vs. State of U.P. & 8 others) decided on 10.08.2021 and Writ -B No.2465 of 2012 (Mathura vs. State of U.P. & 8 others) decided on 13.01.2012. Reliance has also been placed upon coordinate bench of this Court in Mathura vs. State of U.P. & Ors. 2012(4)AWC 3825.
6. I have heard respective counsel for the parties and perused the material on record.
7. The short controversy engaging attention of the Court is as to whether the writ petition against a remand order is maintainable in view of findings recorded by the revisional Court or not?
8. It is a case that late Salikram, father of the petitioner, had executed a registered Will in the year 2007. There was a dispute between late Salikram and objector Chandrabali. A civil suit No.121 of 2007 is also pending before Civil Judge (Junior Division), Varanasi which was filed by Salikram. It appears from the record that registered Will, which was executed by Salikram in favour of his sons and daughter-in-law was admitted by them during mutation proceedings pending before Tehsildar. The said Will was never proved in terms of proviso to Section 68 of Evidence Act. The procedure envisaged under Section 68 of Evidence Act is for proving of the document which are to be admitted in evidence on behalf of the party claiming it.
9. In the instant case, the entire claim of the petitioner as well as some of the respondents in favour of whom the Will was executed by late Salikram needs to be proved in terms of Section 68 of Evidence Act before mutation proceedings are allowed. The Will was never proved and only on the assumption that it was a registered Will and was admitted to both the parties that there was no need for proving the same.
10. Proviso to Section 68 of Evidence Act clearly provides for proving the Will by the attesting witness before the said document is admitted by any Court and taken as an evidence. The Court concerned had committed illegality in relying upon the registered Will without getting it to be proved on behalf of the parties claiming the same. The Revisional Court has rightly remanded the matter back to the Tehsildar to decide the same afresh in terms of Section 68 of the Evidence Act.
11. Moreover, from reliance placed by learned Standing Counsel as to the decision of coordinate Bench of this Court rendered in case of Smt. Kalawati (supra), Mathura (supra) and Subhash (supra), it is clear that the proceedings under Section 34 are summary in nature and writ petition against the proceedings is not maintainable and it is only in exceptional circumstances that the Court can intervene in such matters exercising power under Article 226 of the Constitution of India.
12. In the instant case, there is no such exceptional circumstances for entertaining the writ petition as the petitioner has failed to prove the Will in terms of Section 68 of the Evidence Act and the Revisional Court has rightly remanded the matter to the Tehsildar for dealing the mutation case afresh.
13. No case for interference is made out. Writ petition is misconceived and stands dismissed.
Order Date :- 7.7.2025
Kushal
