Uttarakhand High Court
Ashutosh Sharma And Another ... vs Madhav Samarpan Samiti on 1 August, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
HIGH COURT OF UTTARAKHAND AT
NAINITAL
THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL
Writ Petition (M/S) No. 1448 of 2024
Ashutosh Sharma and Another ........Petitioners
Versus
Madhav Samarpan Samiti ....Respondent
Counsel for the petitioners : Mr. Piyush Garg, learned counsel
Counsel for the respondent : Mr. Sunil Khera, learned counsel along with
and Mr. Lalit Sharma, learned counsel and Mr.
Yogesh Kumar Sharma, learned counsel
Reserved on : 18.06.2024
Delivered on : 01.08.2024
Hon'ble Rakesh Thapliyal, J. (Oral)
1. By the instant petition, preferred under Article 227 of
the Constitution of India, the petitioners are praying for the
following reliefs:-
"(a) Issue a writ, order or direction in the nature of certiorari
quashing the impugned judgment and order dated 24.04.2024
(contained as Annexure No.1 to the writ petition) passed by
Board of Revenue, Dehradun, in Revision No. 89/2020-21, U/s
219 of L.R. Act, Madhav Samarpan Samiti Vs. Ashutosh Sharma
and another.
(b) Issue a writ, order or direction in the nature of certiorari
quashing the order dated 30.09.2020 passed by Assistant
Collector 1st Class, Haridwar, in appeal no.04/2018, Ashutosh
Sharma and another Vs. Madhav Samarpan Samiti and the order
dated 08.05.2018 passed by Tehsildar Haridwar, in case no.
69/2015-16, Ashutosh Sharma and another Vs. Madhav
Samarpan Samiti.
(c) Issue any other suitable writ order or direction which this
Hon'ble Court may deem fit, just and proper under the facts and
circumstances of the case.
(d)Cost of the petition be awarded in favor of the petitioner."
2. Brief facts of the case are that the father of the
petitioners namely late Shri Bhushan Sharma was the
absolute owner of property measuring 0.6330 hectare and
0.4420 hectare falling in khasra Nos. 175M, 186M, 187M,
188M and 192 situated in village Shekhpura @ Kankhal,
Pargana Jwalapur, Tehsil and District Haridwar.
3. The issue in the present writ petition pertains to the
mutation of respondent in the revenue records in place of
the petitioners' father pursuant to a Will dated 25.10.1995,
registered on 26.10.1995, whereby the petitioners' father
Bhushan Sharma, being the testator bequeathed the
property in favour of Madhav Samarpan Samiti (a society
formed by Rashtriya Swayamsevak Sangh members).
4. Learned counsel for the petitioners submits that in the
mutation proceedings initiated pursuant to an Application
moved by the respondent under Section 34 of the Land
Revenue Act, neither the petitioners were impleaded nor any
proclamation was issued and earlier mutation application,
filed by the respondent was dismissed in default by order
dated 15.01.2016 and subsequently a Restoration
Application was filed and by order dated 25.02.2016, the
Tehsildar allowed the Restoration Application, as well as
allowed the mutation proceedings in favour of the
respondent and directed to mutate the name of the
respondent in place of the deceased father of the petitioners.
5. It is submitted by the learned counsel for the
petitioners that the petitioners were completely unaware
about the said mutation proceedings and thereafter, the
petitioners moved an Application under Section 201 of the
Land Revenue Act on 04.08.2017 after more than one and
half year, seeking recall of the order dated 25.02.2016,
wherein the fact about the Will dated 25.10.1995, registered
on 26.10.1995 was completely denied and contended therein
that the father of the petitioners executed a registered Will
on 20.09.2000 in favour of the petitioners in respect of his
entire property.
6. In the said application, preferred under Section 201 of
the Land Revenue Act, it was prayed that the order dated
25.02.2016 be recalled and the mutation application be
heard on merits after grant of opportunity of hearing to the
petitioners.
7. Learned counsel for the petitioners further submits that
the Restoration Application was filed on 04.08.2017, seeking
recall of the order dated 25.02.2016 and a separate Delay
Condonation Application was also filed under Section 5 of the
Limitation Act, seeking condonation of delay in filing of the
Restoration Application in which the objections were filed by
the respondent and in response thereto the reply was also
filed.
8. By order dated 08.05.2018, the Tehsildar dismissed the
Restoration Application by holding that the petitioners have
not filed any mutation application on the basis of the Will
dated 20.09.2000 and the Restoration Application is barred
by limitation.
9. Thereafter, the petitioners, feeling aggrieved with the
order dated 08.05.2018 passed by the Tehsildar, preferred
an Appeal under Section 210 of the Land Revenue Act,
bearing Appeal No. 4 of 2018 before the Assistant Collector,
Ist/SDM, Haridwar; however, the said Appeal was also
dismissed by order dated 30.09.2022, by holding therein
that petitioner No. 2 Atharv Sharma is shown to be one of
the witness in the Will dated 26.10.1995 relied upon by the
respondent and the petitioner No. 2 has not denied his
signatures on the said Will. The Assistant Collector further
held that the Restoration Application is barred by limitation.
10. Being aggrieved with the order passed by the Assistant
Collector dated 30.09.2022, a Revision, bearing Revision No.
20 of 2020-21 was filed by the petitioners under Section 219
of the Land Revenue Act before the Additional Commissioner
and the Additional Commissioner allowed the Revision by
order dated 21.01.2021 by holding that as per law, the
Delay Condonation Application filed by the petitioners along
with the Restoration Application was to be decided first and
no order on the Delay Condonation Application was passed
by the Tehsildar. Further, the Additional Commissioner also
observed that the procedure as prescribed under Section 34
of the Land Revenue Act were not followed and complied
with and no proclamation was issued before passing
mutation order. It is further observed by the Additional
Commissioner that there were two Wills set up by the parties
and the Revisional Court had no jurisdiction to scrutinise the
Wills and since the petitioners were not parties to the
mutation proceedings, they had no knowledge of the
proceedings initiated by the respondent and as such there is
no delay. The Additional Commissioner, by order dated
21.01.2021 remanded the matter back to the Tehsildar, by
directing the parties to maintain status quo.
11. Thereafter, the respondent preferred a Revision under
Section 219 of the Land Revenue Act, bearing Revision No.
89 of 2020-21 against the order dated 21.01.2021, passed
by the Additional Commissioner before the Board of Revenue
and the Board of Revenue allowed the revision preferred by
the respondent by order dated 24.04.2024.
The Board of Revenue, while allowing the Revision hold
that the Additional Commissioner while remanding the
matter back, have not set aside the order passed by the
Tehsildar dated 25.02.2016 and the matter cannot be kept
pending for indefinite period.
The Board of Revenue further hold that Mr. Atharv
Sharma, petitioner No. 2 herein, himself is one of the
signatory as witness in the Will dated 26.10.1995 and he
never denied his signature in the registered Will dated
26.10.1995, which in fact was the sole basis of initiation of
mutation proceedings by the respondent.
The Board of Revenue further observed that the
respondents who are petitioners herein never moved an
application for mutation on the basis of the subsequent Will
dated 20.09.2000 under Section 34 read with Section 35 of
the Land Revenue Act after the death of their father though
as a matter of fact they should have immediately moved an
application for their mutation, which they failed to do so.
The Board of Revenue further holds that the application
under Section 201 of the Land Revenue Act can be moved
only by a person who was the party to the proceeding and
against whom the ex-parte proceedings have been initiated
and in this particular case, the respondents i.e. the
petitioners herein were not party to the mutation
proceedings initiated by the respondent.
The Board of Revenue further hold that the
proceedings under Sections 34 and 35 of the Land Revenue
Act are summary proceedings and any mutation entry does
not confer any right, title or interest over the property and
the mutation entry in the revenue record is only for the fiscal
purposes.
The Board of Revenue further observed in the order
impugned that the Assistant Collector, Ist/SDM, Haridwar
rightly dismissed the Appeal preferred by the petitioners
under Section 210 of the Land Revenue Act and there is no
any infirmity in the order passed by the Tehsildar on
08.05.2018.
12. Being aggrieved with the order dated 24.04.2024,
whereby the Revision filed by the respondent was allowed by
the Board of Revenue, the instant writ petition has been
preferred.
13. Learned counsel for the petitioners submits that the
Board of Revenue erred in law and failed to appreciate that,
by the restoration application, the petitioners were only
praying for recall of the ex-parte order and also for grant of
opportunity of hearing and the findings recorded are
completely unwarranted in view of the nature of the
proceedings viz. restoration application alone.
14. He further submits that the Board of Revenue has
recorded a finding that the petitioners had not disputed their
signature on the Will and the petitioners have not taken any
action in respect of the Will and such findings are absolutely
perverse and the petitioners have nowhere admitted their
signature and the petitioners have categorically stated in the
Recall Application that the Will relied upon by the Madhav
Samarpan Samiti is an act of forgery. He further submits
that the occasion to deny the signature would have arisen
only in case restoration application was allowed and the
matter is heard on merits and the petitioners cannot be
expected to lead their evidence at the time of filing of and
disposal of the restoration application itself.
15. Learned counsel for the petitioners submits that the
Board of Revenue erred in law and failed to appreciate that
even if the Will relied upon by the respondent is considered
though specifically denied, the same is of no consequences
as the registered Will in favour of the petitioners is
subsequent in time and it is settled position of law that it is
last Will executed by the testator which prevails in law.
16. Learned counsel for the petitioners further submits that
the Board of Revenue had erroneously held that the Will
dated 26.10.1995 has not been challenged by the petitioners
since the Will in question is a void document and a void
document is not required to be challenged and if that be so
the fact remains that the Will dated 20.09.2000 similarly has
never been challenged by the respondents.
17. Learned counsel for the petitioners submits that the
Tehsildar, Assistant Collector, Ist/SDM, as well as Board of
Revenue erred in law and they failed to appreciate that the
petitioners are real sons of late Shri Bhushan Sharma and
have a registered Will executed by late Shri Bhushan
Sharma in their favour and their serious rights were thus
involved in the matter.
18. Learned counsel for the petitioners submits that the
mutation in favour of respondent took place without serve of
any notice upon the petitioners and thus the order dated
25.02.2016 was liable to be recalled and the petitioners
were required to be given opportunity of hearing.
19. Learned counsel for the petitioners submits that all the
authorities had erred in law and failed to appreciate that the
alleged Will dated 20.10.1995 was surrounded with
suspicious circumstances and no mutation on the basis of
the said Will could have been directed.
20. Mr. Sunil Khera, learned counsel for the respondent
raised a preliminary objection about the maintainability of
the present writ petition and submits that the subject matter
of the writ petition admittedly arises from the mutation
proceedings which are summary in nature, which do not
decide any rights or title of the parities.
21. Mr. Sunil Khera, learned counsel for the respondent,
first of all, placed reliance on a judgment rendered by the
Hon'ble Apex Court in the case of Suraj Bhan Vs. Financial
Commissioner, (2007) 6 SCC 186, wherein it is observed
and held 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 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. Chinna
Narasimha, (2017) 7 SCC 342; Prahlad Pradhan v.
Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v.
Darshan Singh, (2019) 13 SCC 70."
22. Mr. Sunil Khera, learned counsel for the respondent
submits that it is settled principle of law that the writ
petition is not maintainable arising out of mutation
proceedings and in reference to this, he further placed
reliance on the judgment rendered by this Court in the case
of Bharat Dei and another Vs. Additional Commissioner
Garhwal Mandal and others, decided on 21.11.2020 in
Writ Petition (M/S) No. 73 of 2013, wherein this Court
held that it the settled law that the proceedings under
Sections 34 and 39 of the Land Revenue Act, are summary
in nature and any adjudication which is made on the same,
does not decide a title of the parties litigating over an issue
for getting themselves to be recorded in the revenue
records. Learned counsel for the respondent placed reliance
on para 2 and 3 of the said judgment, which are being
reproduced herein as below:-
"2. It is the settled law that the proceedings under Sections 34
and 39 of the Land Revenue Act, are summary in nature and any
adjudication which is made on the same, does not decide a title
of the parties litigating over an issue for getting themselves to be
recorded in the revenue records. Rather to the contrary, the Law
contemplates that any entries which are made as a consequences
of the orders passed under the proceedings which are provided
under Sections 34 and 39 of the Land Revenue Act, would only
be having a fiscal affect because it only determines the
entitlement of the State and liability of a person/revenue holder,
to ensure the remittance of the Land Revenue, payable towards
the land which was the subject matter of the proceedings under
Section 34 of the Land Revenue Act. Hence, it has been
consistently held by the High Courts, that no Writ Petition, as
against the aforesaid judgments would be maintainable before
the High Court. Some of the judgments, the reference of which
has been made by the counsel for the respondents in relation to
the aforesaid subject, have been reported in 2004 (97) RD 696,
Smt. Manorma Devi and others vs. Board of Revenue U.P.
Lucknow and others; 2002 (93) RD 510, Smt. Gyan Mati Vs.
Additional Commissioner (Admn.), Basti Division and others;
1996 (6) SCC 223, Sawarni (Smt) vs. Inder Kaur (Smt) and
others as well as 1999 (4) A.W.C. 3038, Smt. Rani Devi vs.
Board of Revenue, U.P. at Lucknow and others.
3. In view of the aforesaid ratio, it has been consistently held by
the Courts, that, any adjudication which is made in a mutation
proceedings under the Land Revenue Act, 1901 would always be
a subject to the provisions contained under Section 40A of the
Land Revenue Act, i.e. if any person is aggrieved against the
determination made or on a denial made to record, his name in
the Revenue records, under Section 34 of the Land Revenue Act,
the effected person will have had to resort the proceedings of
instituting the regular suit for deciding their rights.
23. Another judgment which has been relied by the learned
counsel for the respondent is in the case of Girish Chandra
Vs. Apar Ayukt (Prakashan) Garhwal Mandal and
others, 2004 (2) UD 325, wherein this Court dismissed
the petition by holding that the mutation proceedings do not
confer a title and are summary in nature and therefore a writ
petition is not maintainable and opportunity was given to the
petitioner to approach the appropriate Court for redressal of
rights. The relevant paras of the said judgment are also
being reproduced herein as below :-
"3. Mutation proceedings do not decide rights or title of
parties. These proceedings are just fiscal in nature and no
writ petition under Article 226 of the Constitution of India
is maintainable. Division Bench of Allahabad High Court in
a case Jaipal vs. Board of Revenue, AIR 1957 Allahabad
205 has held as under:
"The only exception to this general rule is in those cases in
which the entry itself confers a title on the petitioner by
virtue of the provisions of the U.P. Zamindari Abolition and
Land Reforms Act. This petition does not fall in that class
and we think, therefore, this Court should not entertain it.
It is accordingly dismissed with costs.
4. Reference was also made to the decision in Smt.
Amrendra Kaur vs. Collector, Rampur and others, R.D.
2003 (95) 211, it has been held by Allahabad High Court
as under:
"A reference in this regard may be made to the decisions
in Avadhesh Pratap Singh and others vs. Pahupat Pratap
Singh and others 1941 RD 1068, Smt. Lakhpati and
another vs. Board of 1984, RD 378, Chhedi Lal vs. Board
of Revenue, 1982 RD 201, Mohar Tewari vs. Board of
Revenue, V.P. and another 1990 RD 20, and Nagai and
another vs. Board of Revenue and others, 2002 (93) RD
365. In all the aforesaid decisions, it has consistently been
held that the mutation proceedings are summary in
nature. The findings recorded and observations made by
the authorities in those proceedings have got no binding
effect on the regular side either upon the parties or upon
the Courts. In the present case, as stated above, the
petitioner has already filed suit for cancellation of sale
deeds in question and has, thus, already availed of the
alternative remedy thus the present petition filed under
Article 226 of the Constitution of India is legally not
maintainable. It is, however, observed that the findings
recorded and observations made by the Courts below on
the merits of the case, will have no adverse effect upon
the parties or upon the Courts below while deciding the
said suits. They will be at liberty to decide the said suits on
the basis of the evidence produced by the parties ignoring
the orders passed in the mutation proceedings."
24. Another judgment which has been relied upon by the
learned counsel for the respondent is in the case of Jia-Ul-
Haq & Others Vs. Sri Walidin and another, 2016 (1) UD
447, decided on 12.10.2015, wherein this Court held that
the mutation proceedings are summary in nature and does
not confer any right and title in favour of the persons whose
names have been mutated, and Section 40 (a) of the U.P.
Land Revenue Act provides that if a person is aggrieved by
any order passed in mutation proceedings, the aggrieved
party has an efficacious remedy to get its title declared from
the competent Court.
25. Learned counsel for the respondent submits that
Section 40 (a) of the Land Revenue Act gives an elaborative
right to an aggrieved party to get its right declared from the
competent Court and the orders passed in mutation
proceedings are not final and the same are fiscal in nature
and therefore the writ petition against the proceedings
arising out of a mutation proceeding is not maintainable.
26. The Allahabad High Court, in the case of Smt. Rani
Devi Vs. Board of Revenue, 1999 (90) RD, 633, has
held that the writ petition arising out of mutation
proceedings is not maintainable. In another case, i.e. in the
case of Ram Bharose Lal Vs. State of U.P., 1991 RD 72,
the Allahabad High Court held that the mutation proceedings
under Section 34 of the U.P. Land Revenue Act, 1900, do not
decide rights or title of the parties and proceedings are just
fiscal in nature and the High Court need not to interfere
under Articles 226 and 227 of the Constitution of India and
the remedy can be availed by aggrieved party in appropriate
Court.
27. Learned counsel for the respondent further placed
reliance upon the judgment in the case of Bindeshwari Vs.
Board of Revenue U.P. at Lucknow and others, reported
in (2002) 93 RD 134, wherein the Allahabad High Court
held that the mutation proceeding does not adjudicate the
rights of the parties and hence the writ petition is not
maintainable.
28. Learned counsel for the respondent further placed
reliance on a recent judgment of this Court i.e. in the case of
Iqbal Hasan Vs. State of Uttarakhand and others, in
Writ Petition (M/S) No. 1495 of 2022, 2022 Supreme
(UK) 230, decided on 30.08.2022.
29. In response to the preliminary objections as raised by
the respondent, the learned counsel for the petitioners
submits that the maintainability of a writ petition is self
imposed restriction and has not an absolute rule. There are
exceptions where the writ petition is maintainable even in
respect of mutation proceedings and the present case is not
the case of any final order passed in mutation proceedings
but is the case wherein the Restoration Application filed by
the petitioner against the ex parte order has not been
considered by the trial Court.
30. Learned counsel for the petitioner placed reliance on
the judgment rendered by the Allahabad High Court in the
case of Smt. Kalawati Vs. The Board of Revenue and
others, decided on 05.04.2022 in WRIT-B No. 295 of 2022.
He refers para 40 of the said judgment which is being
reproduced herein as below:-
"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.
As it appears from the said judgment there are seven
categories of cases in which it has been held by the
Allahabad High Court that the writ petition may be
entertained against orders passed in mutation proceedings.
31. I have gone through the seven categories of cases but
in the opinion of this Court, the present case does not fall in
any of the categories. Though, learned counsel for the
petitioners placed reliance on the said judgment, but what
ultimately has been held in this judgment is reflected from
para 44 of the said judgment which is also being reproduced
herein as below:-
"44. At this stage, learned counsel for the petitioner
seeks to urge that the findings returned in the mutation
proceedings may prejudice the petitioner's case in a suit
pertaining to claim of title. The aforesaid apprehension is
wholly without basis since findings returned by mutation
courts in summary proceedings are for the limited purpose
of correction of revenue records and do not have any
presumptive value on a question of title which is required
to be adjudicated by the court of competent jurisdiction
without being influenced by any finding returned in
mutation proceedings. In this regard the provision
contained under Section 39 of the Code has already been
taken note of wherein it is provided in unequivocal terms
that order passed under Section 35 would not debar any
person from establishing his rights to the land by means of
a suit under Section 144.
Thus, the said judgment is of no help to the
petitioners.
32. Apart from this, learned counsel for the petitioners
placed reliance on another judgment of this Court in the case
of Kehar Singh Vs. State of U.P. and Another, 2011 (2)
UC 1083 decided on 31.06.2010.
33. I perused the judgment; however, the facts of this case
are not applicable since those who filed their objections in
the mutation proceedings, they were the party to the
mutation proceedings.
34. Learned counsel for the petitioners submits that filing
of objections/restoration application by the petitioners itself
amounts to filing of mutation application and therefore, the
Revenue Authorities were duty bound to recall the correct
entries in the records are totally misconceived and not
acceptable.
35. Learned counsel for the petitioners submits that unless
the Restoration Application is decided, separate mutation
application could not have been filed. He submits that it is
settled principle of law that restoration application could not
have been decided without deciding the delay condonation
application first and in a reference to this, he has placed
reliance upon various judgments i.e. in the case of Beena
Kumari Vs. Raj Kumar, 2016 0 Supreme (Del) 2999
and in the case of Mohanram Vs. Mohanram & Another,
2008 2 RLW (R) 983.
36. I perused both the judgments and of the view that
these judgments have no relevance, since the facts of the
present case are entirely on different footing. The present
case is arising out of a mutation proceedings which were
concluded in favour of the respondent and if the petitioners
are aggrieved, at all in reference to those entries then they
have to approach to the Civil Court, seeking remedies for the
purposes of deciding their title over the property in question.
37. Learned counsel for the petitioners submits that since
only a restoration application was filed and therefore while
deciding the restoration application, the merit of the matter
could not have been gone into. He further submits that there
are two Wills on record; one is relied by the petitioners
which is of dated 20.09.2000, whereas another Will, in which
the respondent moved mutation proceeding which was
allowed in their favour is of 25.10.1995, registered on
26.10.1995. Learned counsel for the petitioners submits that
even if the earlier Will is not specifically revoked the same
stand impliedly revoked and in the case of more than one
Will executed by the testator the last Will shall prevail. In a
reference to this, he has referred the judgment in the case
of Jasbir Singh Vs. Jaspal Singh and others, 2016 SCC
OnLine P&H 3416 and in the case of Pramila Tiwari Vs.
Anil Kumar Mishra and others, 2024 SCC OnLine All
1588.
38. So far as the case of Jasbir Singh (supra) is
concerned, the same case is arising out of a regular suit,
seeking declaration on the basis of a Will. This case has no
relevance in respect of the issue as involved in this petition
since on the basis of the subsequent Will, the petitioners are
seeking recall of the order passed in a mutation proceedings
initiated by the respondent on the basis of earlier Will.
Neither the earlier Will has been challenged by the
petitioners nor any declaration has been sought by filing a
regular suit. Thus, this judgment is not at all applicable.
39. Another judgment, i.e. in the case of Pramila Tiwari
(supra), also have no relevance since in this case a
reference was made by the Chief Justice to answer the
reference made by another Judge, which is being extracted
herein as below:-
"Whether the provision of compulsory registration of will, as
introduced in the form of Section 169(3) of U.P.Z.A. & L.R.
Act, 1950 by the Amendment Act namely U.P. Act No. 26 of
2004, is perspective or retrospective in nature?"
Thus, from the reference itself, it is clear that the said
judgment has no relevance since the entire subject matter of
the present petition is pertaining to the mutation proceeding
which was initiated by the respondent on the basis of a
registered will dated 26.10.1995.
40. Undisputedly, the petitioners have not filed any
mutation application on the basis of subsequent Will dated
20.09.2000 and furthermore, they were not the party to the
mutation proceedings initiated by the respondent herein.
41. The Board of Revenue clearly observed in the order
impugned that if there was a subsequent Will in favour of
the petitioners then they have to move a proper application
under Sections 34/35 of the Land Revenue Act after the
death of their father which they have not done.
42. On the basis of the subsequent Will, intervening by
moving an application for recalling the order in a mutation
proceedings initiated by the respondent herein is wholly
unwarranted.
43. In opinion of this Court, if the mutation proceedings
initiated by the respondent were concluded and if there was
a subsequent Will, the only remedy available to the
petitioners to approach to the Civil Court either to challenge
the Will dated 26.10.1995 on the basis of which the
mutation application was filed by the respondent or to file a
regular suit claiming title over the property on the basis of
the subsequent Will.
44. Neither the Will dated 26.10.1995 was challenged nor
any regular suit was filed by the petitioners for claiming title
over the property pursuant to a subsequent Will. It is settled
principle of law that mutation proceedings are summary in
nature and it does not confer any title over the property and
this is only for the fiscal purposes.
45. After hearing the arguments of the learned counsel for
the parties and further after gone through the judgments as
relied upon by the learned counsel for the parties, this Court
is of the view that the present writ petition is not
maintainable since the order passed in mutation proceedings
is not final on the question of title and title can only be
decided by competent Court of law, therefore, this Court is
not inclined to interfere with the order passed by the
Tehsildar, in Case No. 69 of 2015-16, as well as with order
passed by the Assistant Collector, Ist/SDM, Haridwar dated
30.09.2022 in Appeal No. 04 of 2018, and with order passed
by the Board of Revenue in Revision No. 89 of 2020-21,
while exercising its supervisory powers conferred by Article
227 of the Constitution of India.
46. Accordingly, the writ petition fails and dismissed.
However, any observations as made above, will not come on
the way of the petitioners if they approach a competent
Court of law for adjudication of their rights over the property
in question.
___________________________
Rakesh Thapliyal, J.
Dt: 01.08.2024
Mahinder/
