Allahabad High Court
Khurshid Ahamad Khan vs State Of U.P. Thru. Addl. Chief Secy., ... on 26 May, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:31139
Court No. - 7
Case :- WRIT - B No. - 472 of 2025
Petitioner :- Khurshid Ahamad Khan
Respondent :- State Of U.P. Thru. Addl. Chief Secy., Revenue Deptt., Lko. And Others
Counsel for Petitioner :- Suresh Kumar Upadhyay,Ashutosh Pandey
Counsel for Respondent :- C.S.C.,Jitendra Maurya,Sandeep Kumar Mishra
Hon'ble Saurabh Lavania,J.
1. Heard Shri Suresh Kumar Upadhyay, learned counsel for the petitioner, Shri Sandeep Kumar Mishra, learned counsel for the caveator, Shri Badrish Kumar Tripathi, learned State Counsel and perused the material on record.
2. By means of this petition the petitioner has sought the following main relief:-
"(i) To set aside the order dated 04.04.2025 passed by the Board of Revenue U.P. Lucknow, order dated 18.04.2024 passed by Additional District Magistrate Sultanpur and the order dated 14.02.2023, 12.06.2023 and 07.08.2023 passed by Tehsildar, Sadar Sultanpur, contained as Annexure no.1, 2, 3, 4 and 5 with the petition.
(ii) To direct the Tehsildar Sadar, Sultanpur to stop the proceedings of caes no.1118 /2007 till the conclusion of Regular Suit No.887/2008 pending in the court of Civil Judge (J.D.) south court no.24, Sultanpur."
3. Brief facts of the case as appears from the record are as under.
(i) In a mutation case an order was passed on 05.05.2007 in terms of P.A.11 in favour of the petitioner which itself was unjustified in view of the relevant provision of U.P. Zamindari Abolition & Reforms Act, 1950 (in short 'Act 1950'). It is for the reason that the mother of the petitioner died on 21.02.2007 leaving behind the petitioner and opposite party no.6-Waseem Jahan alias Kallo, being son and daughter respectively.
(ii) On coming to know about the aforesaid, the opposite party no.6 preferred an application in terms of Section 34 of U.P. Land Revenue Act, 1901 (in short 'Act 1901'). This application was registered as Case No.1118/2006-2007, Computerized Case No.T202304680606995 (Wasim Jahan Vs. Kulsum Bibi).
(iii) The case aforesaid was dismissed for want of prosecution on 14.03.2011.
(iv) After the aforesaid, the opposite party no.6 preferred a second application under Section 34 of Act 1901, which was rejected on 16.07.2014 and in relation to this order an application for recall was preferred by opposite party no.6.
(v) Seeking recall of order dated 14.03.2011 whereby the first case instituted under Section 34 of Act 1901 was dismissed for want of prosecution, the opposite party no.6 preferred an application on 16.03.2021. This application was rejected by the Tehsildar concerned vide order dated 11.05.2022.
(vi) The opposite party no.6 thereafter preferred an application on 19.05.2022 for recalling of order dated 11.05.2022 passed by Naib Tehsildar concerned.
(vii) Thereafter the opposite party no.6 preferred an application dated 25.05.2022 for recalling of order dated 14.03.2011. This application was opposed by the petitioner basically indicating therein that opposite party no.6 is not a pardanasheen lady based upon the fact that opposite party no.6 is graduate and discharging duties of Teacher in Aaganwari. This application of opposite party no.6 was allowed vide order dated 14.02.2023.
(viii) At this juncture, it is relevant to point out that the application seeking condonation of delay was not preferred along with the application dated 25.05.2022 which was preferred for recalling of order dated 14.03.2011.
(ix) Challenging the order dated 14.02.2023, the petitioner approached the Board of Revenue by means of Revision No.REV/713/2023/Sultanpur, Computerized Case no.R2023046800713 (Khursheed Ahmed Khan Vs. Waseem Jahan), under Section 219 of Act, 1901. This revision has been dismissed by the Revisional Authority namely Member (Judicial), Board of Revenue vide impugned order dated 04.04.2025.
4. Before proceeding further it would be apt to indicate that 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.
5. 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.
6. 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.
7. Upon due consideration of the aforesaid, this Court is of the view that in the instant petition indulgence of this Court is not required in exercise of power under Article 226 of the Constitution of India for the following reasons:-
(i) Prima facie, the petitioner is not a bonafide litigant for the reason that he got his name mutated/entered into revenue record in terms of P.A.11 though the name of petitioner along with his sister who at the relevant point of time was unmarried ought to have been entered into the revenue records.
(ii) Regular Suit No.887 of 2008 filed by the petitioner for cancellation of registered will, the basis of the claim of the opposite party no.6 in the mutation proceeding, is pending consideration before the competent court of jurisdiction.
(iii) The genuineness of the Will can only be adjudicated by the Civil Court and not in mutation case as observed recently by Hon'ble Apex Court in the case of Jitendra Singh Vs. State of M.P. reported in 2021 SCC OnLine SC 802 and this observation should be considered by the Tehsildar concerned in the pending proceedings despite of the order of Full Bench of Board of Revenue which was passed after taking note of para 478 of Revenue Court Manual for the reason that judgment of Apex Court would prevail over the order of Board of Revenue as also over provision related to the same.
8. With the aforesaid observation, this petition is dismissed.
9. Cost made easy.
Order Date :- 26.5.2025
Anand/-
