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2016 DIGILAW 4064 (ALL)

Raghunath Saran v. State of U. P.

2016-12-16

B.AMIT STHALEKAR

body2016
JUDGMENT B. Amit Sthalekar, J. Heard Sri Saral Singh, learned counsel for the petitioner and Sri Ghanshyam Yadav, learned Standing Counsel for the respondents no.1 to 4. 2. In view of the nature of the order sought to be passed, it is not necessary to issue any notice to the respondents no.5,6 and 7. 3. The petitioner is seeking quashing of the orders dated 18.11.2016, 13.6.2014 and 15.01.2014. The property in dispute belongs to one Mahendra Pal. His wife Kaikayee divorced him and married another person. Mahendra Pal has died. Upon his death an application under Section 34 of the U.P. Land Revenue Act was filed by Nanhi Devi, mother of Mahendra Pal for mutation of names and the application was allowed on 14.12.2011. Kaikayee is stated to have sold the property to the petitioner through a sale deed dated 22.03.2010 and on the basis of the sale deed the petitioner is stated to have initiated mutation proceedings which was allowed by order dated 11.3.2011. The respondent no.5-Nanhi Devi challenged the order in appeal before the SDM which was dismissed by the order dated 18.11.2011 which was not challenged by her and therefore, it is stated that the order dated 11.3.2011 has become final. Thereafter in 2014, Nanhi Devi initiated mutation proceedings before the Naib Tehsildar. The petitioner moved transfer applications dated 4.1.2014 and on 6.1.2014 seeking transfer of the proceedings as well as stay of the same. In the meantime, an order was passed on 15.1.2014, Annexure-3 to the writ petition, allowing the mutation application of Nanhi Devi. In this order, there is a clear finding recorded that Kaikayee had married one Suraj Pal in 2008 and was living with Suraj Pal, therefore she could not have sold the property of Mahendra Pal to the petitioner. This order was challenged by the petitioner in appeal which has also been dismissed by order dated 13.6.2014. Thereafter, the petitioner filed revision which has also been dismissed by the order dated 18.11.2016. According to the petitioner, he has a valid sale deed in his favour executed by Kaikayee and the proceedings initiated by the respondent no.5 were fraudulent proceedings in order to grab the property. 4. Be that as it may, the proceedings under section 34/35 of the Land Revenue Act are merely summary proceedings in which right and title of the parties cannot be decided. 5. 4. Be that as it may, the proceedings under section 34/35 of the Land Revenue Act are merely summary proceedings in which right and title of the parties cannot be decided. 5. If the claim of the petitioner is that the sale deed executed by Kaikayee in his favour is valid, it is open for him to obtain a declaration in his favour from the appropriate court. A writ petition on disputed questions of fact is not maintainable. 6. The law in this regard has been already settled by a Division Bench of this Court in the case of Jaipal Vs Board of Revenue and ors. reported in AIR 1957 ALL 205 , which is reproduced below: - "1. This is a petition under Article 226 of the Constitution challenging the validity of an order of the Board of Revenue dated the 17-18th July, 1956. 2. The facts are these. On the 3rd of January 1955 the second respondent made an application under Sec. 34 of the United Provinces Land Revenue Act to the Tahsildar of Koil, in the District of Aligarh, that her name be entered in the annual register maintained under that Act as being in possession of a particular holding as the successor of one Smt. Dewalia deceased. 3. The application was opposed by the petitioner who claimed to be the true owner, but an order was made by the Tahsildar directing that mutation of names be effected as asked for by the second respondent. That order was however set aside by the Commissioner on appeal by the petitioner. The second respondent then filed an application in revision before the Board of Revenue; and the Board by the order which is now being challenged allowed the application, set aside the order of the Additional Commissioner and restored that of the Tahsildar. 4. The contention of learned counsel for the petitioner is that the Board of Revenue in passing this order exceeded its jurisdiction. It has however been the consistent practice of this Court not to interfere with orders made by the Board of Revenue in cases in which the only question at issue is whether the name of the petitioner should be entered in the record of rights. That record is primarily maintained for revenue purposes and an entry therein has reference only to possession. That record is primarily maintained for revenue purposes and an entry therein has reference only to possession. Such an entry does not ordinarily confer upon the person in whose favour it is made any title to the property in question, and his right to establish his title thereto is expressly reserved by Sec. 40(3) of the Act. 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." 7. This judgment has been validated by this Court in the case of Lal Bachan Vs Board of Revenue and others reported in 2002 (93) R.D. 6. Relevant paragraph 16 reads as under: - "16.The cases in which the writ petition can also be entertained arising out of mutation proceeding may be cases in which an authority not having jurisdiction has passed an order or interfered with an order passed in the proceedings. The writ petition challenging an order passed without jurisdiction can be entertained by the Court despite availability of an alternative remedy. However, in that case also the Court will interfere only when it appears that substantial injustice has been suffered by a party. In view of the above discussion it is held that the writ petition arising out of the mutation proceedings under Section 34 U.P. Land Revenue Act cannot be entertained by this Court subject to only exception as laid down by the Division Bench in Jaipal's case (supra). The writ petition may also be entertained where authority passing the order had no jurisdiction." 8. For reasons aforesaid and the law laid down by this Court, I do not find any illegality or infirmity in the impugned orders. 9. The writ petition lacks merit and is accordingly, dismissed.