Uttarakhand High Court
WPMS/2009/2022 on 5 September, 2022
Office Notes,
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Date COURT'S OR JUDGES'S ORDERS
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WPMS No. 2009 of 2022
Hon'ble Manoj Kumar Tiwari, J.
Mr. Pawan Mishra, learned counsel for
the petitioner.
Heard learned counsel for the petitioner
and perused the record.
Respondent nos. 1 & 2 filed application
seeking mutation of their name in place of
petitioner, in revenue records, on the strength
of a sale deed dated 17.03.2008, alleged to
have been executed in their favour.
Respondent no. 3 also filed another mutation
application in which he relied upon a sale deed
dated 25.07.2008 alleged to have been
executed by respondent no. 1 in his favour.
Both mutation applications were allowed by
Tehsildar, Roorkee, District Haridwar vide
order dated 11.09.2012. Petitioner filed a
restoration application, which was rejected by
Tehsildar, Roorkee vide order dated
19.12.2012. Petitioner thereafter filed Appeal,
which was dismissed by Assistant Collector,
Roorkee vide judgment dated 25.01.2016.
Revision filed by petitioner too was dismissed
by Additional Commissioner, Garhwal vide
judgment dated 12.02.2020. Thus feeling
aggrieved, petitioner has approached this
Court.
It is a fact that petitioner had filed suit
for cancellation of sale deed contending that
he had not executed any sale deed in favour of
respondent nos. 1 & 2 and the sale deed was
prepared by trick photography. The said suit
was dismissed by learned Civil Judge (J.D.),
Roorkee, District Haridwar and petitioner's
Appeal is pending before District Judge,
Haridwar.
Mutation of name in respect of
agricultural land in revenue records is
governed by U.P. Land Revenue Act, 1901.
Proviso to Section 33 (2) (b) of the said Act
provides that the power to record a change
under clause (b) shall not be construed to
include the power to decide a dispute involving
any question of title. Similar stipulation is
made in proviso to Section 39 (2) of the said
Act. Section 40-A of the said Act provides that
order of mutation shall not come in the way of
any party if he approaches a competent court
for declaration of his right. Section 40-A of the
said Act reads as under:-
"Section 40-A Saving as to title suits- No order
passed under Section 33, Section 35, Section 39,
Section 40, Section 41 or Section 54 shall bar any
suit in a competent court for relief on the basis of
a right in a holding."
Hon'ble Supreme Court in the case of
Jitendra Singh Vs. The State of Madhya
Pradesh & others, reported in 2021 SCC Online
SC 802, has considered & discussed the scope
of mutation proceedings. The relevant extract
of the said judgment is reproduced below:
"6. It is not in dispute that the dispute is with
respect to mutation entry in the revenue records.
The petitioner herein submitted an application to
mutate his name on the basis of the alleged will
dated 20.05.1998 executed by Smt. Ananti Bai.
Even, according to the petitioner also, Smt. Ananti
Bai died on 27.08.2011. From the record, it
emerges that the application before the Nayab
Tehsildar was made on 9.8.2011, i.e., before the
death of Smt. Ananti Bai. It cannot be disputed
that the right on the basis of the will can be
claimed only after the death of the executant of
the will. Even the will itself has been disputed. Be
that as it may, as per the settled proposition of
law, mutation entry does not confer any right, title
or interest in favour of the person and the
mutation entry in the revenue record is only for
the fiscal purpose. As per the settled proposition of
law, if there is any dispute with respect to the title
and more particularly when the mutation entry is
sought to be made on the basis of the will, the
party who is claiming title/right on the basis of the
will has to approach the appropriate civil
court/court and get his rights crystalised and only
thereafter on the basis of the decision before the
civil court necessary mutation entry can be made.
7. Right from 1997, the law is very clear. In the
case of Balwant Singh v. Daulat Singh (D) By Lrs.,
reported in (1997) 7 SCC 137, this Court had an
occasion to consider the effect of mutation and it is
observed and held that mutation of property in
revenue records neither creates nor extinguishes
title to the property nor has it any presumptive
value on title. Such entries are relevant only for
the purpose of collecting land revenue. Similar
view has been expressed in the series of decisions
thereafter.
8. In the case of SurajBhan v. Financial
Commissioner, (2007) 6 SCC 186, it is observed
and held by this Court that an entry in revenue
records does not confer title on a person whose
name appears in record-of-rights. Entries in the
revenue records or jamabandi have only "fiscal
purpose", i.e., payment of land revenue, and no
ownership is conferred on the basis of such
entries. It is further observed that so far as the
title of the property is concerned, it can only be
decided by a competent civil court. Similar view
has been expressed in the cases of Suman Verma
v. Union of India, (2004) 12 SCC 58; Faqruddin v.
Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State
of J&K, (2008) 9 SCC 368; Municipal Corporation,
Aurangabad v. State of Maharashtra, (2015) 16
SCC 689; T. Ravi v. B. ChinnaNarasimha, (2017) 7
SCC 342; BhimabaiMahadeoKambekar v. Arthur
Import & Export Co., (2019) 3 SCC 191;
PrahladPradhan v. SonuKumhar, (2019) 10 SCC
259; and AjitKaur v. Darshan Singh, (2019) 13
SCC 70."
Thus, mutation of name in respect of
agricultural land 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 land revenue. The
proceedings under Section 34/35 of Land
Revenue Act 1901 are summary in nature,
which are subject to provision contained in
Section 40-A of the said Act.
In the present case, the mutation
application filed by respondents was allowed
by Tehsildar. The Appellate as well as
Revisional Authority has affirmed the order
passed by Tehsildar, whereby he ordered
mutation of names of respondent nos. 1, 2 &
3, based on the sale deeds executed in their
favour.
Petitioner contends that he had not
executed any sale deed in favour of
respondent nos. 1 & 2. The revenue authority
while considering mutation application cannot
go into the validity of sale deed and such
question can only be decided by a competent
Court of law.
Petitioner had approached Civil Court
seeking cancellation of sale deed executed in
favour of respondent nos. 1 & 2 however, his
suit was dismissed. Now, the matter is
pending before the Appellate Court.
From the legal position, as discussed
above, it is apparent that mutation
proceedings are summary in nature, which are
subject to finding recorded in a regular suit.
Since the question of title cannot be gone
in summary proceedings, therefore, I do not
find any reason to interfere with the order
passed by Tehsildar, as affirmed by Assistant
Collector and Additional Commissioner,
Garhwal. Thus, there is no scope of
interference.
Accordingly, writ petition fails and is
dismissed. However, mutation entries, made
pursuant to impugned orders, shall abide by
the decision in pending appeal before District
Judge, filed by petitioner.
(Manoj Kumar Tiwari, J.)
05.09.2022
Aswal
