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2016 DIGILAW 1296 (ALL)

Harihar Prasad Srivastava v. State of U. P.

2016-04-07

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. Heard Sri Harihar Prasad Srivastava, the petitioner who has appeared in person and Sri B.B. Paul for the caveator, respondent no.6. 2. The writ petition arises out of proceedings under Section 34 of the U.P. Land Revenue Act and seeks quashing of the orders passed by the Tehsildar Koraon, Allahabad, whereby the respondent no.6 was ordered to be mutated over the land in question and the order passed by the Sub Divisional Magistrate, Sadar, Allahabad and Additional Commissioner (First), Allahabad Division, Allahabad affirming the order passed by the Tehsildar in appeal and revision respectively. 3. The respondent filed an application seeking mutation on the basis of a registered sale deed dated 06.01.1993 executed by the petitioner in her favour regarding the northern portion of plot no.63-B, area 2.434 Hectare situated in village Bhausara Jagir, Tappa Manda, Pargana Kairagar, Tehsil Koraon, District Allahabad. 4. The mutation case was contested by the petitioner alleging therein that the sale deed was forged and the same has been got registered by setting up an imposter. This imposter was set up by the husband of the respondent no.6, who is an employee in the Collectorate. The petitioner came to know of the sale deed only when the mutation case was filed. 5. It is also contended that the respondents filed a suit No.1435 of 1993 for injunction in the Court of Civil Judge ( Junior Division), Allahabad. The application for interim injunction filed in the suit was rejected by the Trial Court on 30.07.2001. The appeal and the consequential writ petition were also dismissed. 6. The petitioner has also instituted a suit No.30 of 1996 for cancellation of the forged sale deed. The husband of respondent no.6, in collusion with the Court employees, managed to remove three pages of the plaint filed by him and after such tampering in the record, filed a tampered copy of the plaint in the mutation case and this tampered copy is the basis of the impugned orders, despite the fact that an inquiry was conducted wherein a finding was returned that tampering had been done with the plaint and one Ramesh Lal was found to be responsible for the same and a show cause notice were issued. 7. 7. It is next contended that a Civil Suit for injunction namely suit No.1435 of 1993 filed by the respondent was dismissed by the Trial court on 23.09.2005 with the finding that the plaintiff ( respondent no.6) had not been able to prove her exclusive possession over the land, alleged to have been purchased by her. On the basis of this fact, it is submitted that since the respondent no.4 was not found to be, in possession by the Civil Court, mutation in her favour could not have been granted, inasmuch as, the mutation proceedings are to be decided primarily on the basis of possession alone. 8. The next contention of the learned counsel for the petitioner is that the sale deed in favour of the respondent, apart from being forged and fabricated was for a specific portion in undivided property, and therefore was illegal. He has relied upon various decisions in support of this contention. The order impugned, therefore, are illegal and are liable to be set aside. 9. In rebuttal, Sri B.B. Paul, learned counsel for the respondent No.6 has submitted that a writ petition arising out of the proceedings under Section 34 of the U.P. Land Revenue Act is not maintainable as the proceedings are purely fiscal in nature and do not determine the title of the parties. The findings returned by the mutation courts are also not binding upon the Courts in regular title proceedings. He therefore submits that the writ petition is liable to be dismissed summarily. 10. I have considered the submissions made by learned counsel for the parties and have perused the record and also the voluminous case law furnished by the petitioner. 11. On the basis of the submissions made at the bar, two questions are found to be relevant and they require consideration. 12. The first is that the respondent no.6, in whose favour the impugned mutation orders have been passed has not been able to prove her possession over the land in question, is the injunction suit, filed by her. There is noting on record to show that this finding has either been reversed or set aside till date. It is also true that possession is the primary basis for mutation in proceedings under Section 34 of the Land Revenue Act. 13. There is noting on record to show that this finding has either been reversed or set aside till date. It is also true that possession is the primary basis for mutation in proceedings under Section 34 of the Land Revenue Act. 13. The second is that the sale deed which is the basis of the claim of the respondent no.6 is sought to be cancelled in a suit filed by the petitioner, being suit no.30 of 1996. Admittedly, this suit is pending consideration, as on date. 14. In view of the two aspects noticed above, it is clear that the sale deed which is the basis on which mutation was claimed, has still not been cancelled. The finding of the Civil Court in the suit for injunction filed by the respondent is merely that the plaintiff has not been able to prove her exclusive possession. The finding is not that the plaintiff is not in possession. 15. In such view of the matter and in view of the pendency of the suit for cancellation of the sale deed, I do not find any good ground to interfere with the impugned orders which have directed mutation on the basis of a registered sale deed, which has not been cancelled till date. 16. However, in view of the fact that the petitioner alleges to be in possession over the land in question along with the recorded co-tenure holders and also in view of the finding of the Civil Court that the respondent No.6 has not been able to prove her exclusive possession in a suit for injunction filed by her, in my considered opinion, interest of justice would stand served, in case this writ petition is disposed of directing the parties to maintain status-quo, as regards nature and possession over the property in question and by restraining them from creating any third party interest therein, the orders impugned being subject the final decision in the suit for cancellation of the sale deed instituted by the petitioner. 17. According and in view of the above, this writ petition is disposed of directing the parties to maintain status-quo as regards the nature and possession over the land in question. They are further restrained from creating any third party interest therein. 17. According and in view of the above, this writ petition is disposed of directing the parties to maintain status-quo as regards the nature and possession over the land in question. They are further restrained from creating any third party interest therein. The orders impugned in the writ petition shall abide by the final decision in the suit no.30 / 1996 instituted by the petitioner for cancellation of the sale deed dated 06.1.1993 which is the basis of the claim of the respondent before the mutation Courts.