Phulwasi Devi vs Judicial Magistrate
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Allahabad High Court

Phulwasi Devi vs Judicial Magistrate on 18 November, 2025

Author: Irshad Ali

Bench: Irshad Ali

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 



 

 

 
Neutral Citation No. - 2025:AHC-LKO:74238
 

 
Reserved on: 28.8.2025
 
Delivered on: 18.11.2025
 

 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW
 
WRIT - C No. - 1001760 of 1999
 

 
Phulwasi Devi
 

 

 
..Petitioner(s)
 

 

 

 

 
Versus
 

 

 

 

 
Judicial Magistrate
 

 

 
..Respondent(s)
 

 

 
Counsel for Petitioner(s)
 
:
 
M.A.siddiqui, Ankit Pande, Ichchha Singh, Kiran Singh, M.a. Siddiqui
 
Counsel for Respondent(s)
 
:
 
C.S.C., Adarsh Kumar Maurya, Jitesh Yadav, Phool Badan Singh, Ram Nath Pandey
 

 

 
Court No. - 4 
 

 
       HON'BLE IRSHAD ALI, J.

1. Heard Shri A.K. Pande, learned Senior Advocate assisted by Ms. Ichchha Singh, learned counsel for the petitioner, learned Standing Counsel for the respondent nos.1 and 2 and Shri R.N. Pandey, learned counsel for the respondent nos.3 to 5.

2. By means of the present writ petition, the petitioner has prayed for issuance of a writ in the nature of Certiorari quashing the impugned order dated 18.9.1998 passed by opposite party no.1 as contained in Annexure No.1 and the reference/ order dated 19.9.1997 passed by opposite party no.2 as contained in Annexure no.2 to the writ petition.

3. Factual matrix of the case is that Ram Samujh Singh son of Radhika Singh expired issueless on 8.3.1988 and the name of petitioner being real sister was mutated in his place as per provision contained in P.A.11 on 8.3.1988. Opposite party nos.3 to 5 claimed mutation on the basis of a Will dated 5.2.1988 in their favour and in favour of opposite party no.6, however opposite party no.6 denied the status of wife.

On 26.6.1991, Naib Tehsildar passed an order of mutation in favour of opposite party nos.3 to 5, although a restrain Will for alienation by the father of deceased was there and a regular suit was also going on from 1987. In the appeal filed by the petitioner, the order dated 26.6.1991 has been set aside vide order dated 5.4.1995.

On 18.8.1997, law regarding reference has been amended. Absolutely beyond the above law the opposite party no.2 made a reference to Board of Revenue on 19.9.1997 in the revision which is without jurisdiction. On 18.9.1998 the opposite party no.1 accepted the reference made by opposite party no.2 which is also beyond jurisdiction. As such, the writ petition is being filed.

4. Learned counsel for the petitioner submitted that Section 218 of U.P. Land Revenue Act, 1901 has been omitted and Section 219 of the above Act has been substituted, the order/ recommendation of opposite party no.2, as contained in Annexure No.2 and thereafter the order of opposite party no.1 as contained in Annexure No.1 are per se without jurisdiction, after commencement of the new provisions.

5. Learned counsel for the petitioner next submitted that the powers of revisional authority are quite limited and narrow, and the finding of fact recorded by the appellate authority could at all not be upset by the opposite party no.2 and he could not at all record the fresh findings while exercising the revisional powers.

6. Learned counsel for the petitioner next submitted that the Honble Supreme Court has constantly are absolutely akin to the powers conferred by Section 115 of CPC and the revising authority can not travel beyond and in the instant case, besides the order being without jurisdiction, reappraisal of evidence has been made, by the revising authority, which is not permissible under law.

7. Learned counsel for the petitioner next submitted that the reference made by the opposite party no.2 on 18.9.1997 after the commencement of U.P. Act No.20 of 1997 as the reference made by the opposite party no.2 is illegal and the decision thereafter by the opposite party no.1 is also bad, illegal and unjust.

8. Learned counsel for the petitioner next submitted that the petitioner is the only heir and successor of the deceased and the Will in favour of opposite party nos.3 to 6 is absolutely forged one, which could not be proved by the contrary evidence and in no circumstances on the basis of the said Will the mutation could be allowed in favour of opposite parties.

9. Learned counsel for the petitioner next submitted that a restrain Will regarding the alienation of the property is already there and a case regarding the same also going on and in no circumstance the alienation of the property could be made.

10. Learned counsel for the petitioner next submitted that the attesting witness of the said Will has denied regarding the execution of such Will, and the registration of the said Will before the Sub-Registrar on stamp paper itself shows that the Will in question is a fabricated and forged one.

11. Learned counsel for the petitioner next submitted that the opposite party no.2 realized the mistake in the order, passed by the Naib Tehsildar, regarding allowing mutation in favour of opposite parties no.3 to 5 because the Will in question being in favour of two sets of person, and further wrongly directed the correction to that extent that the mutation be allowed in favour of opposite party no.6 also, who does disown and disclaim the very relationship with the deceased, which is the very basis of the will and the opposite party no.1 has accepted such a recommendation, ignoring the provisions, contained in the law of succession.

12. Learned counsel for the petitioner next submitted that the will in question describing Smt. Rubi Singh as wife of testator and she denied the said status, therefore the Will in question stood absolutely effected as per law of succession, and the said will which has been obtained by fraud, cannot be relied.

13. Learned counsel for the petitioner next submitted that the order of reference made by the opposite party no.2, as contained in Annexure No.2 and the order of opposite party no.1, as contained in Annexure No.1 are absolutely without jurisdiction, bad, illegal and unjust and are violative of the statutory provisions which causes hardship to the petitioner.

14. Learned counsel for the petitioner next submitted that the S.D.M. rightly held that the order dated 26.06.1991 was defective and without jurisdiction and further set aside the entries made in the revenue records in favour of private respondent and also directed to enter the name of the petitioner namely Smt. Phulwasi in the mutation proceeding.

15. Learned counsel for the petitioner next submitted that the order dated 26.6.1991 was passed by the Sub Divisional Magistrate, Sadar, District Faizabad on the ground that one of the respondent namely Smt. Rubi Devi (opposite party no.6 of the present writ petition) in another suit for permanent injunction pending between the parties in Regular Suit No.533/1997 pending before the Additional Civil Judge, III(CD), Faizabad had denied by way of nortarized affidavit that she is not the wife of the late Ram Singh. She also filed family registered (Kutumb register) along with the said affidavit and said that she is the wife of one Hari Lal and no Ram Singh. The aforesaid statement of opposite party no.6 has already been annexed as Anexure no.6 of the present writ petition.

16. Learned counsel for the petitioner next submitted that the S.D.M. vide order dated 5.4.1995 also rightly considered that if so called wife namely Rubi Singh of the deceased Ram Singh was alive at the relevant point of time, then why the said Ram Singh also executed an alleged will deed dated 6.10.1989 in faovur of the other alien persons like Ajay Kumar Singh and others.

17. Learned counsel for the petitioner next submitted that the said Ajay Kumar Singh in his statement dated 30.11.1990 given in case no.3/17/50/94 under Section 34 of U.P. Land Revenue Act, 1901 (Smt. Phulwasi Devi v. Ram Singh), in which in the cross examination on 14.12.1990 he admitted that he has filed objection against the petitioner in mutation proceeding on behalf of his other two brothers who have given power of attorney in his favour to file such objection (the aforesaid statement is already annexed as Annexure No.9 of the writ petition).

18. Learned counsel for the petitioner next submitted that the marginal witness of the aforesaid alleged registered will deed dated 06.10.1989 namely Shyam Sundar Singh given a notarized affidavit in Regular Suit No.533/1987, in which he specifically stated that the said Ram Singh was a criminal minded person and he was habitual to illegal encroach upon properties of others and he has produced as a witness in the alleged will deed dated 06.10.1989 under the pressure of said Ram Singh.

19. Learned counsel for the petitioner next submitted that the another marginal witness of the alleged will deed dated 06.10.1989 namely Shri Deen Dayal Chauhan also filed an affidavit in Regular Suit No.533/1987 in which he has said that he has given statement under the pressure of said Ajay Singh who had threatened him of his life.

20. Learned counsel for the petitioner next submitted that the said Ajay Kumar Singh is a fraudulent person and unnecessary created the legal impediment in the mutation proceeding just to grab the property of late Ram Singh, who died issueless and was the real brother of the petitioner.

21. Learned counsel for the petitioner next submitted that both revenue courts exceeded their jurisdiction and tried to justify the validity of the alleged register will deed dated 06.10.1989 executed by late Ram Singh.

22. Learned counsel for the petitioner next submitted that both the courts below failed to give specific reasoning and finding on the reason given by the Sub Divisional Magistrate, Sadar, Faizabad vide its order dated 5.4.1995.

23. Learned counsel for the petitioner next submitted that as per the settled legal propositions, the revenue authorities/ courts have limited powers/ jurisdiction related to mutation and if there is any dispute about the Will deed, then the revenue authorities may refer the parties to the Civil Court, which has original jurisdiction to decide the same.

24. Learned counsel for the petitioner next submitted that the Civil Court has the original jurisdiction to testify the registered will, but in the case in hand, the revenue Courts while passing the impugned orders exceeded their jurisdiction, thus they are liable to be quashed by this Court.

25. Learned counsel for the petitioner next submitted that the Section 218 of the U.P. Land Revenue Act, 1901 has been omitted and Section 219 of the above Act has been omitted and Section 219 of the above Act has been substituted, thus the reference made by the opposite party no.2 contained as Anneuxre No.2 of the writ petition was per-se illegal and without any authority of law.

26. Learned counsel for the petitioner next submitted that on 16.08.1964 the late Radhika Singh (father of the petitioner and opposite party no.3) executed an unregistered will deed in favour of the petitioner and provided that in case of his death her augher will be owner of his property as the said Ram Singh was an unmarried and alcoholic person. It is further clarified that in the year 1964 there was no requirement of registration of will deed.

27. Learned counsel for the petitioner next submitted that the reference made by the Additional Commissioner on 19.09.1997 after the implementation of U.P. Act No.20 of 1997 as a reference made by the opposite party no.2 was illegal and thus, subsequent decision taken by the Board of Revenue vide the impugned order dated 18.09.1998 is not tenable in law.

28. Per contra, learned counsel for the respondents submitted that the Tehsildar, Gosainganj, Faizabad passed a mutation order dated 28.01.1991 in favour of opposite party no.3 on the basis of the registered will deed and the Board of Revenue has been modified the order passed by Tehsildar to extent that name of opposite party no.6 i.e. Rubi Singh would be mutated in pursuance of Will deed dated 05.02.1988 along with opposite party nos.3 to 5.

29. Learned counsel for the respondents next submitted that Section 5(2) of U.P. Act No.20 of 1997 provided that if an application under this Section has been moved by any person either to the Board, or to the Commissioner, or to the Record Officer or to the Settlement Officer, no further application by the same person shall be entertained by any other of them but in the present case opposite party nos.3 to 5 filed only on revision before the Additional Commissioner, Faizabad and learned Additional Commissioner, Faizabad made reference and forwarded file to the Board of Revenue, U.P., Lucknow for decision, hence the order dated 18.09.1998 passed by the Board of Revenue is not without jurisdiction.

30. Learned counsel for the respondents next submitted that in the U.P. Act No.20 of 1997, no bar to reference the cases. Section 10 of U.P. Act No.10 clearly provided that notwithstanding anything contained in this Act all cases referred to the Board under Section 218 of the U.P. Land Revenue Act, 1901, or under Section 333-A of Uttar Praesh Zamindari Abolition and Land Reforms Act, 1950 as they stood immediately before the commencement of this Act and pending before the Board on the date of such commencement shall continue to be heard and decided by the Board as if this Act has not been enacted.

31. Learned counsel for the respondents next submitted that Will deed in favour of opposite party nos.3 to 6 has been proved by giving the witnesses statement on 5.2.1988. Another witness of the will Shyamsunda has proved the execution of the Will. This evidence is the basis for the preliminary proceedings of filing t he Will. Under Section 68 in India Evidence Act, it has been provided that if the execution of the will is provided by giving a statement before a marginal Court, then there is no illegality in passing the mutation order on its behalf.

32. Learned counsel for the respondents next submitted that Ram Singh was the original tenure holder of land in question, who was issueless and executed a registered Will deed dated 5.2.1988 in favour of opposite party nos.3 to 6 and on the basis of above-noted registered will deed dated 5.2.1988 opposite party nos.3 to 5 filed a mutation case before the Tehsildar, Gosainganj, District Faizabad.

33. Learned counsel for the respondents next submitted that the petitioner filed mutation on the basis of forged unregistered will deed and the Tehsildar Gosainganj, Faizabad passed a mutation order dated 28.01.1991 in favur of opposite party nos.3 to 5 on the basis of registered will deed.

34. Having heard the rival submissions of learned counsel for the parties, I perused the material available on record as well as case-law cited by learned counsel for the petitioner.

35. To resolve the controversy involved in the present writ petition, Section 10 of U.P. Act No.20 of 1997 is extracted here-in-below:

"Section 10 of the Act No.20 of 1997-Translatory provisions.-

Notwithstanding anything contained in this Act all cases referred to the Board under Section 218 of the U.P. Land Revenue Act, 1901, or under Section 333-A of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 as theystood immediately before the commencement of this Act and pending before the Board on the date of such commencement shall continue to be heard and decided by the Board as if this Act has not been enacted."

36. Perusal of the above-extracted shows that the case referred under Section 218, pending before the commencement of this Act shall be heard and decided as per unamended provision and U.P. Act 20 of 1997.

37. Learned counsel for the petitioner relied upon a judgment in the case of Shri Ram (supra), operative portion of which is extracted here-in-below:

"2. The impugned order dated 11.1.1999 has been passed by the Board of Revenue which has been filed as Annexure 2 to this writ petition without giving any opportunity of hearing to the petitioner. The U.P. Land Laws (Amendment) Act, 1997 (U.P. Act No.20 of 1997) cacme into force on 18.8.1997 and Section 218 was omitted from the Land Revenue Act and Section 219 was substituted in the Act which gave power to the Board of Revenue or the Commissioner or the Additional Commissioner or the Collector etc. To decide the revisions. The effect of this amendment was that w.e.f. 18.8.1997 the Commissioner or the Additional Commissioner had power to decide the revision. The revision was decided by Additional Commissioner by his order dated 16.11.1998 under the amended Section 219 which came into force on 18.8.1997. The Board of Revenue has remanded the matter to the Additional Commissioner for deciding it afresh as revision was filed before the Additional Commissioner before coming into force of U.P. Act No.20 of 1997 were to be decided under the Old Section 218 of the Land Revenue Act. This view of the Board of Revenue does not appear to be correct as in the amending Act itself a translatory (sic: transitory) provision has been given under Section 10 which is being quoted below-

"Nothwithstanding anything contained in this Act all cases referred to the Board under Section 218 of the U.P. Land Revenue Act, 1901, or under Section 333-A of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 as they stood immediately before the commendment of the Act and pending before the Board on the date of such commencement shall continue to be heard and decided by the Board as if this Act has not enacted."

In view of this translatory (sic:translatory) provision only references which were pending before the Board of Revenue were saved and revisions pending before the Commissioner or the Additional Commissioner were not saved and as such a Commissioner or the Additional Commissioner ought to have decided the revisions pending before them on 18.8.1997 under Section 219 of the Act. Under the circumstances the judgment passed by the Board of Revenue on 11.1.1999 cannot be sustained.

38. On perusal of the above-extracted judgment it is crystal clear that only references which were pending before the Board of Revenue were save and revisions pending before the Commssioner or the Addditional Commissioner were not save, and as such a Commissioner or the Additional Commissioner ought to have decided the revisions pending before them on 18.8.1997under Section 219 of the Act.

39. Perusal of the material on record shows that on the basis of registered will deed dated 5.2.1988, the Tehsildar, Gosainganj, Faizabad passed a mutation order dated 28.01.1991 in favour of opposite party nos.3 to 5, against which Phulwasi Devi (petitioner) filed an appeal before the Sub-Divisional Magistrate which was accepted and allowed on 5.4.1995. Feeling aggrieved by the order dated 5.4.1995, opposite party nos.3 to 5 filed a revision before the learned Addiional Commissioner, Faizabad Mandal, Faizabad and learned Additional Commissioner referred the revision of the opposite party nos.3 to 5 before the learned Board of Revenue, U.P., Lucknow, who passed the order in favour of opposite party nos.3 to 5.

40. I have examined the materials available on record in the light of judgment relied upon by learned counsel for the petitioner.

41. On examination, it is found that the cases referred under Section 218 pending before the Commissioner of this Act shall be heard and decided as per unamended provisions and this implies that the cases, which were not referred prior to commencement of this Act, shall be decided under the provisions of new law and U.P. Act No.20 of 1997 received the assent of His Excellency Honble the Governor on 16.8.1997 and was published, when the opposite party no.2 passed the impugned order commending the reference to opposite party no.1, although the said provision was not applicable and the recommendation made by the opposite party no.2 on 19.9.1997 being after the commencement of U.P. Act No.20 of 1997 and the subsequent order dated 18.9.1999 passed by the opposite party no.1 are absolutely without jurisdiction and are liable to be quahsed.

42. It is also found on perusal of the record that on 16.8.1964, late Radhika Singh (father of the petitioner and opposite party no.3) executed an unregistered will deed in favour of the petitioner and provided that in case of his death her daughter will be the owner of his property as the said Ram Singh was a unmarried and alcoholic person; the status of Ruby Singh as wife of Ram Singh has been deined in Regular Suit No.533/1997 pending before the Additional Civil Judge, III (CD), Faizabad through notorized affidavit annexing Kutumb register and stated that she is the wife of one Hari Lal and not Ram Singh; and the finding recorded by appellate Court in appeal that the Will in question is not at all genuine and could not be relied in view of the law relating to succession and the petitioner being undisputedly the real sister of the deceased inherited the property, was not considered in revision while passing the order impugned. The said facts and findings were required to be considered before passing any impugned orders in regard to mutation of inherited property. In this view of the matter, the impugned orders vitites in law and are liable to be quashed.

43. The provision of Section 10 clearly stipulates that only references which were pending before the Board of Revenue were saved and revisions pending before the Commissioner or the Additional Commissioner were not saved, and as such a Commissioner or the Additional Commissioner ought to have decided the revisions pending before them on 18.8.1997 under Section 219 of the Act.

The aforesaid observation was made in the judgment rendered in the case Shri Ram (supra) relied upon by learned counsel for the petitioner which is squarely covered in the present facts and circumstances of the case.

44. It is admitted position between the parties that the consolidation proceedings between the parties are pending before the Consolidation Court.

45. Considering in totalities of facts and circumstances of the case, impugned order dated 18.9.1998 passed by opposited party no.1 as contained in Annexure no.1 and reference/ order dated 19.9.1997 passed by opposite party no.2 as contained in Annexure no.2 to the writ petition are hereby quashed.

46. In the result, the writ petition succeeds and is allowed.

47. No order as to costs.

48. However, the petitioner is at liberty to move an application along with material available with him and take grounds taken before this Court along with a certified copy of this order before the Consolidation Court within one month from the date of production of a certified copy of this order and in case such an application is made, the Consolidation Officer shall consider and pass an appropriate order while taking into acount the observations made above and in accordance with law as expeditiously as possible.

(Irshad Ali,J.)

November 18, 2025

GK Sinha