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2015 DIGILAW 3296 (ALL)

Tulsi Ram v. Addl. Commissioner (Jud. ), Lucknow

2015-10-16

DEVENDRA KUMAR UPADHYAYA

body2015
JUDGMENT Devendra Kumar Upadhyaya, J. Heard Shri Avadhesh Kumar, learned counsel for the petitioners, Shri Alok Kirti, learned counsel for respondents no.6, 7 & 8 and Shri Shiv Poojan Maurya, learned counsel for respondent no.4. 2. This writ petition under Article 226 of the Constitution of India has been preferred by the petitioners against the orders passed by the Revenue Courts in mutation proceedings. For the purposes of resolution of the controversy involved in this petition, following pedigree is relevant to be mentioned. Triloki Shyam BehariKalluRam DinBhawaniBisram Ram KumarSuraj Bali Smt. Ram Dei (opp. party no.4)Ram Swarup (opp party no.7)Ramesh (opp party no.8) Ganesh (opp party no.5)Shiv Shanker (opp party no.6) Tulsi Ram (petitioner no.1)Lallu Ram (petitioner no.2)Bhola Nath (petitioner no.3)Chandra Shekhar (petitioner no.4) 3. The original admitted tenure holder of the land in dispute was Bhawani, who died issue-less. After his death, an application under Section 34 of the U.P. Land Revenue Act was moved by the petitioners for mutation of their names in place of the deceased tenure holder Bhawani, on the basis of a Will allegedly executed by Bhawani on 28.04.1977. Another set of objections was filed by Ram Kumar, S/o Shyam Behari claiming mutation over the property in question on the basis of another alleged Will dated 18.05.1977. In addition to the aforesaid two claimants, namely, petitioners and Ram Kumar, two other set of claimants, namely Ramdin and Ram Swarup also filed objections claiming therein that they are entitled to get their names mutated over the property in dispute in place of the deceased tenure holder on the basis of succession in terms of the relevant provisions of U.P.Z.A. & L.R. Act. The matter was contested and after evaluation of the evidence, the Tehsildar passed an order on 27.02.1984, whereby he discarded both the Wills produced by the petitioners as well as Ram Kumar that is the Will dated 18.05.1977 and 28.04.1977. The Tehsildar, thus, ordered the mutation on the basis of succession in the name of the other brothers or heirs of the other brothers of the deceased tenure holder Bhawani. 4. Against the aforesaid order dated 27.02.1984, passed by the Tehsildar mutating the names of the persons concerned on the basis of succession, two appeals were preferred under Section 210 of the U.P. Land Revenue Act; (i) by the petitioners and (ii) by Ram Swaroop. 4. Against the aforesaid order dated 27.02.1984, passed by the Tehsildar mutating the names of the persons concerned on the basis of succession, two appeals were preferred under Section 210 of the U.P. Land Revenue Act; (i) by the petitioners and (ii) by Ram Swaroop. Both the appeals were dismissed by the Sub Divisional Officer by means of a common judgment and order dated 28.03.1984. 5. Against the aforesaid two orders dated 27.02.1984 and 28.03.1984, passed by the Tehsildar and Sub Divisional Officer respectively, the petitioners preferred revision petition under Section 218 of U.P. Land Revenue Act before the learned Additional Commissioner concerned. The Additional Commissioner also dismissed the revision petition by means of the order dated 18.09.2003. 6. In this petition, thus, these three orders dated 18.09.2003, 28.03.1984 and 27.02.1984, passed by the Additional Commissioner, Sub Divisional Officer and the Tehsildar are under challenge. 7. Admittedly, in the mutation proceedings since no right or title between the parties are decided hence, ordinarily writ petition under Article 226 of the Constitution of India against the orders passed in the mutation proceedings is not maintainable and is generally not entertained. 8. Learned counsel for the petitioners has, however, relied upon a judgment in the case of Smt. Sangeeta vs. Additional Commissioner, (Administration), Lucknow, Lucknow Division and others, reported in [ 2015 (33) LCD 559 ]. In the aforesaid judgment of Smt. Sangeeta (supra), it has been observed that as regards the maintainability of the writ petition against the orders passed in the mutation proceedings, the writ petition would not be maintainable under Article 226 of the Constitution of India unless the order is found totally without jurisdiction or contrary to the title already decided by the competent court. This Court in the aforesaid case of Smt. Sangeeta (supra) has also relied upon another judgment of this Court in the case of Neeresh Sharma vs. Board of Revenue, Lucknow and others, reported in [2011 (113) RD 82, wherein it has been held that the writ petition arising out of the orders passed under Section 34 of the U.P. Land Revenue Act is not maintainable. However, in three circumstances, the writ petition can be entertained; (i) if the orders impugned in the writ petition are found to be without jurisdiction, (ii) if the rights and title of the parties have already been decided by any competent authority and (iii) if the mutation has been directed not on the basis of possession or on the basis of some title deed but after entering into debate of the entitlement to succeed the property touching to the merits of the rival claims. 9. In the instant case, from a perusal of the orders passed by the Tehsildar, Sub Divisional Officer and Additional Commissioner, I do not find that this case falls under any of the exceptions carved out in the aforesaid judgments. It is not the case of the petitioners that the orders passed by the courts below are without jurisdiction. It is also not the case of the petitioners that it is a matter where the rights and title of the parties are already settled. What have been attempted to be emphasized by the petitioners is that this case falls under exception three as carved in the case of Neeresh Sharma (supra), that is to say, in this case mutation has been directed not on the basis of possession and not on the basis of any title deed but it has been ordered after entering into debate of entitlement to succeed the property touching into the merits of the rival claims. 10. The instant case, in my opinion, also does not fall in the third exception as mentioned in the judgment in the case of Neeresh Sharma (supra). The pedigree as quoted above between the parties is not being disputed. After the death of Bhawani, who died issue-less, a dispute had arisen as regards the genuineness of two Will deeds, one produced by the petitioners and the other produced by one Ram Kumar. The pedigree as quoted above between the parties is not being disputed. After the death of Bhawani, who died issue-less, a dispute had arisen as regards the genuineness of two Will deeds, one produced by the petitioners and the other produced by one Ram Kumar. Merely because the other two set of claimants , namely, Ramdin and Ram Swarup had filed some applications with regard to claim does not come to the rescue of the petitioners for the reasons that since the claim of the petitioners is based on a Will deed allegedly executed on 28.04.1977 as such unless and until the Will is proved before the learned trial court in terms of the provisions contained in Section 169 of the U.P.Z.A. & L.R. Act, no rights can be said to be conferred on the petitioners. 11. A perusal of the order passed by the Tehsildar reveals that the petitioners have clearly failed to prove the Will on the basis of they have been claiming the mutation in place of the deceased Bhawani. The appellate court has also not agreed with the contention of the petitioners and has affirmed the judgment of the learned trial court below. 12. It has further been contended by the learned counsel for the petitioners that the revisional court has not discussed any issue, material and the evidence and has passed the order which is cryptic in nature, hence, at least the revisional court has failed to exercise its jurisdiction vested under Section 218 of the U.P. Land Revenue Act. 13. So far as the aforesaid submission of the learned counsel for the petitioners is concerned, the scope of the revisional jurisdiction is well established. The revisional court is only required to see the legality on the touchstone of the provisions contained in the then existing Section 218 of the U.P. Land Revenue Act. 14. In my considered opinion, I do not find any illegality so far as the order passed by the revisional court is concerned. Further, I may also indicate that any order of mutation passed under the Land Revenue Act is always subject to any declaration of rights which may be sought by the party concerned by instituting regular suit in a competent court. Further, I may also indicate that any order of mutation passed under the Land Revenue Act is always subject to any declaration of rights which may be sought by the party concerned by instituting regular suit in a competent court. Section 40-A of the U.P. Land Revenue Act provides that no order passed under Sections 33, 35, 39, 40, 41 or 54 shall bar any suit in a competent Court for relief on the basis of a right in a holding. Accordingly, if the petitioners are still aggrieved by the orders passed in mutation proceedings by the courts below, it is always open to them to institute regular suit under Section 229-B of the U.P.Z.A.& L.R. Act seeking declaration of their rights. 15. Accordingly, in view of the discussions made and reasons given above, the writ petition is completely lacks merit and is hereby dismissed.