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2023 DIGILAW 1369 (ALL)

Amit Dixit v. State of U. P.

2023-05-19

KSHITIJ SHAILENDRA

body2023
JUDGMENT : KSHITIJ SHAILENDRA, J. 1. Heard Shri Arvind Srivastava, learned counsel for the petitioner, learned Standing Counsel for the State-respondents, Shri Sudhir Bharti, learned counsel for respondent nos. 6 and 7 and Shri Rishi Kant Rai, learned counsel for the respondent nos. 4 and 5. 2. One Mewa Dixit alias Mewa Prasad was “bhumidhar” of certain agricultural land and he died on 10.05.2003. It is stated that mutation proceedings were instituted and contested on the basis of two Wills allegedly executed by Mewa Prasad. The case of the petitioner is that Mewa Prasad executed Will in favour of mother of the petitioner on 12.08.1999 whereas the case of the private respondents is that the said Will is not genuine, rather, manufactured. The only Will executed by Mewa Dixit was dated 16.11.1998 in favour of respondent nos.4 and 5 who are daughters of the testator. 3. The petitioner applied for mutation on the basis of alleged Will dated 12.08.1999 and the Tehsildar by order dated 28.08.2008 directed making of entry in his name. Needless to say that petitioner is son of Pushpa Devi in whose favour the Will of 1999 is alleged to have been executed. The daughters of Mewa Dixit challenged the order of Tehsildar in appeal. The appeal was allowed by order dated 09.01.2009 and the order of Tehsildar was set aside and direction was issued that in place of Mewa Dixit, names of his daughters i.e. respondent nos.4 and 5 be recorded on the basis of registered Will dated 16.11.1998. The petitioner filed revision against the said order which was dismissed by order dated 02.04.2009. 4. The present writ petition has been filed challenging the orders dated 09.01.2009, 02.04.2009 & 23.04.2021. 5. Learned counsel for the petitioner submits that appeal was decided without summoning the record from the Tehsildar. He further submits that whereas the petitioner fully proved Will dated 12.08.1999, the contesting respondents failed to prove their Will and, therefore, the order of Tehsildar could not be reversed in appeal and revision. 6. Per contra, learned counsel for the respondents have vehemently opposed the writ petition stating that Will relied upon by the petitioner was shown to have been executed in Calcutta and there are various infirmities in the Will namely that the testator therein alleged as if his wife had died and no description of daughters of the testator was given in the Will. It is further argued that no one in the family of Mewa Dixit has any concern with Calcutta and the execution of the alleged Will at Calcutta is surrounded by suspicious circumstances. Learned counsel further submits that the Will dated 16.11.1998 executed by Mewa Dixit was the only registered Will whereas alleged Will dated 12.08.1999 relied upon by the petitioner is an unregistered document. He further argues that Mewa Dixit in the registered Will of 1998 had clearly described that his wife was alive on the date of execution of the Will and psroperty rights would devolve upon his daughters i.e. respondent nos.4 and 5. 7. During the course of arguments, it has been argued that two suits are pending between the parties. Both the suits are said to have been filed by the petitioner side, one of which is in the nature of suit for declaration under Section 144 of the U.P. Revenue Code-2006 (in short ‘the Code 2006’) and the other, in the nature of civil suit being Original Suit No. 1459 of 2008. Learned counsel for the petitioner has produced a certified copy of the plaint of Original Suit No. 1459 of 2008 as well as interim order dated 30.07.2022, in which, taking note of interim order passed by this Court in the present writ petition, it has been observed that there is no justification to pass any order on the interim injunction application and the case was posted for framing of issues. 8. Learned Standing Counsel has argued that writ petition arising out of mutation orders is not maintainable as these are summary proceedings which are subject to result of regular proceedings. 9. Having heard learned counsel for the parties, I find that the proceedings were initiated under the U.P. Land Revenue Act-1901. Section 40-A of the said Act reads as follows: “40A. 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.” 10. The aforesaid Act of 1901 was repealed with promulgation of U.P. Revenue Code-2006 and provision identical under Section 40-A of the Act 1901 now finds place as Section 39 of the Code-2006 which reads as follows: “39. Certain orders of revenue officers not to debar as suit. The aforesaid Act of 1901 was repealed with promulgation of U.P. Revenue Code-2006 and provision identical under Section 40-A of the Act 1901 now finds place as Section 39 of the Code-2006 which reads as follows: “39. Certain orders of revenue officers not to debar as suit. No order passed by a Revenue Inspector under Section 33, or by a Tahsildar under sub-section (1) of Section 35 or by a Sub-Divisional Officer under sub-section (3) of Section 38 or by a Commissioner under [sub-section (4) of Section 38] shall debar any person from establishing his rights to the land by means of a suit under Section 144.” 11. A perusal of provisions of law shows that orders passed by the mutation courts are always subject to regular proceedings. 12. The question of the maintainability of a writ petition against orders passed in mutation proceedings has come up before this Court earlier and it has consistently been held that normally the High Court in exercise of its discretionary jurisdiction does not entertain writ petitions against such orders which arise out of summary proceedings. In the case of Jaipal vs. Board of Revenue, Allahabad and Others, AIR 1957 All. 205 , notice was taken of the consistent practice of this Court not to interfere with the orders made by the Board of Revenue in cases in which the only question at issue was whether the name of the petitioner should be entered in the record of rights. The observations made in the judgment in this regard are as follows: “3....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. Such an entry does not ordinarily confer upon the person in whose favour it is made any title to the property in question...” 13. 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...” 13. Reiterating a similar view in the case of Bindeshwari vs. Board of Revenue and Others, 2002 (1) AWC 498 , it was stated that mutation proceedings do not adjudicate the rights of parties and orders passed in the said proceedings are always subject to adjudication by the competent Court and therefore a writ petition against an order in mutation proceedings would not be entertainable. It was observed as follows: “11......The present writ petition arising out of the summary proceeding of mutation under Section 34 of U.P. Land Revenue Act, cannot be entertained under Article 226 of the Constitution of India. The mutation proceedings do not adjudicate the rights of the parties and orders passed in the mutation are always subject to adjudication by the competent Court.” 14. The settled legal position that orders of mutation are passed on the basis of possession and since no substantive rights of the parties are decided, ordinarily a writ petition would not be entertainable against such orders unless the same are found to be wholly without jurisdiction or have the effect of rendering findings which are contrary to title already decided by a competent court, was reiterated in the case of Vinod Kumar Rajbhar vs. State of U.P. and Others, 2021 (1) ADJ 792: 36. Taking note of the nature and scope of mutation proceedings which are summary in nature and also the fact that orders in such proceedings are passed on the basis of possession of the parties and no substantive rights are decided, this Court in Buddh Pal Singh vs. State of U.P. and Others, 2012 (5) ADJ 266 , restated the principle that ordinarily a writ petition in respect of orders passed in mutation proceedings is not maintainable. It was observed as follows: “7. It is equally settled that the orders for mutation are passed on the basis of the possession of the parties and since no substantive rights of the parties are decided in mutation proceedings, ordinarily a writ petition is not maintainable in respect of orders passed in mutation proceedings unless found to be totally without jurisdiction or contrary to the title already decided by the competent Court. The parties are always free to get their rights in respect of the disputed land adjudicated by competent Court.” 15. The proposition that mutation entries in revenue records do not create or extinguish title over land nor such entries have any presumptive value on title has been restated in a recent decision in the case of Bhimabai Mahadeo Kambekar vs. Arthur Import and Export Company and Others, (2019) 3 SCC 191 , placing reliance upon earlier decisions in Balwant Singh vs. Daulat Singh, (1997) 7 SCC 137 and Narasamma vs. State of Karnataka, (2019) 5 SCC 591 . The observations made in the judgment are as follows: “6. This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor has it any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. [See Sawarni vs. Inder Kaur, Balwant Singh vs. Daulat Singh and Narasamma vs. State of Karnataka].” 16. Reference may also be had to the judgment in Faqruddin vs. Tajuddin, (2008) 8 SCC 12 , wherein it was held that the revenue authorities cannot decide questions of title and that mutation takes place only for certain purposes. The observations made in this regard are as follows: “45. Revenue authorities of the State are concerned with revenue. Mutation takes place only for certain purposes. The statutory rules must be held to be operating in a limited sense...It is well-settled that an entry in the revenue records is not a document of title. Revenue authorities cannot decide a question of title.” 17. A similar observation was made in Narain Prasad Aggarwal vs. State of Madhya Pradesh, (2007) 11 SCC 736 wherein it was held as follows: “19. Record-of-right is not a document of title. Entries made therein in terms of Section 35 of the Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable...” 18. Record-of-right is not a document of title. Entries made therein in terms of Section 35 of the Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable...” 18. In Union of India and Others vs. Vasavi Cooperative Housing Society Limited and Others, (2014) 2 SCC 269 , the principle that entries in revenue records do not confer any title was reiterated and referring to the previous decisions in Corporation of the City of Banglore vs. M. Papaiah, (1989) 3 SCC 612 , Guru Amarjit Singh vs. Rattan Chand, (1993) 4 SCC 349 and H.P. vs. Keshav Ram, (1996) 11 SCC 257 , it was stated thus: “21. This Court in several judgments has held that the revenue records do not confer title. In Corporation of the City of Bangalore vs. M. Papaiah this Court held that: (SCC p. 615, Para 5) “5.....It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law.” In Guru Amarjit Singh vs. Rattan Chand this Court has held that: (SCC p. 352, Para 2) “2....that entries in the Jamabandi are not proof of title. “In State of H.P. vs. Keshav Ram this Court held that: (SCC p. 259, Para 5) “5....an entry in the revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs.” 19. A similar view was taken in the case of Smt. Sawarni vs. Smt. Inder Kaur and Others, (1996) 6 SCC 223 and it was observed that the mutation of name in the revenue records does not have the effect of creating or extinguishing the title nor has any presumptive value on title and it only enables the person concerned to pay land revenue. It was stated thus: “7...Mutation of a property in the revenue record 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 the land revenue in question...” 20. It was stated thus: “7...Mutation of a property in the revenue record 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 the land revenue in question...” 20. The principle that an entry in revenue records is only for fiscal purpose and does not confer title on a person whose name appears in record-of-rights and title to the property can only be decided by a competent Civil Court was reiterated in the decision of Suraj Bhan and Others vs. Financial Commissioner and Others, (2007) 6 SCC 186 and it was stated as follows: “9...It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. It is settled law that 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. So far as title to the property is concerned, it can only be decided by a competent Civil Court...” 21. The legal position that entries in revenue records do not confer any title has been considered and discussed in a recent decisions of this Court in Harish Chandra vs. Union of India and Others, 2019 (5) ADJ 212 (DB) and Mahesh Kumar Juneja and Another vs. Additional Commissioner Judicial Moradabad Division and Others, 2020 (3) ADJ 104 and it was restated that ordinarily orders passed by mutation courts are not to be interfered in writ jurisdiction as they are summary proceedings, and as such subject to a regular suit. 22. 22. The settled legal position that an entry in revenue records does not confer title on a person whose name appears in record-of-rights and that such entries are only for “fiscal purpose” and no ownership is conferred on the basis thereof and further that the question of title of a property can only be decided by a competent Civil Court has again been restated in a recent decision of the Supreme Court in Jitendra Singh vs. State of Madhya Pradesh and Others, 2021 SCC Online SC 802; wherein after referring to the previous authorities on the point in Suraj Bhan vs. Financial Commissioner, (2007) 6 SCC 186 , Suman Verma vs. Union of India, (2004) 12 SCC 58 , Faqruddin vs. Tajuddin, (2008) 8 SCC 12 , Rajinder Singh vs. State of J&K, (2008) 9 SCC 368 , Municipal Corporation, Aurangabad vs. State of Maharashtra, (2015) 16 SCC 689 , T. Ravi vs. B. Chinna Narasimha, (2017) 7 SCC 342 , Bhimabai Mahadeo Kambekar vs. Arthur Import and Export Co. (2019) 3 SCC 191 , Prahlad Pradhar vs. Sonu Kumhar, (2019) 10 SCC 259 and Ajit Kaur vs. Darshan Singh, (2019) 13 SCC 70 , it was observed thus : “8. In the case of Suraj Bhan vs. 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 vs. Union of India, (2004) 12 SCC 58 , Faqruddin vs. Tajuddin, (2008) 8 SCC 12 , Rajinder Singh vs. State of J&K, (2008) 9 SCC 368 , Municipal Corporation vs. State of Maharashtra, (2015) 16 SCC 689 , T. Ravi vs. B. Chinna Narasimha, (2017) 7 SCC 342 , Bhimabai Mahadeo Kambekar vs. Arthur Import and Export Co. (2019) 3 SCC 191 , Prahlad Pradhan vs. Sonu Kumhar, (2019) 10 SCC 259 and Ajit Kaur vs. Darshan Singh, (2019) 13 SCC 70 .” 23. (2019) 3 SCC 191 , Prahlad Pradhan vs. Sonu Kumhar, (2019) 10 SCC 259 and Ajit Kaur vs. Darshan Singh, (2019) 13 SCC 70 .” 23. The aforesaid proposition of law has recently been reiterated by this Court in the case of Smt. Kalawati vs. Board of Revenue and Others, 2022 (4) ADJ 578 . Similar view has been taken in another recent decision of this Court in the case of Alladin vs. State of U.P. and Others, 2023 (3) ADJ 41 . 24. In the present case, I find that mutation was claimed on the basis of two Wills relied upon by rival parties. However, none of the learned counsel has shown to the Court that any suit for cancellation of any Will has been instituted or pending before any court of law. 25. Insofar as, the suit under Section 144 of the Code-2006 is concerned, while considering the relief for declaration, the question of validity of Will would be impliedly gone into and simultaneously even in the injunction suit being Original Suit No. 1459 of 2008, the question with regard to validity of either of Wills or both of them would arise. 26. One of the interesting features of the Will relied upon by the petitioner is that the testator had alleged that his wife namely Champa Devi had died but the statement of Champa Devi was recorded in the civil suit who was also cross-examined by the other side. 27. The petitioner has seriously disputed about the genuineness of the said statement by taking stand in the rejoinder affidavit that Champa Devi never appeared before the court for getting her statement recorded; rather some imposter was produced by the respondent side and got her statement recorded pretending herself to be Champa Devi. 28. Keeping in view the nature of proceedings and the orders, I do not find any error in the view taken by the appellate and revisional courts where detailed discussion has been made by both the courts. 29. 28. Keeping in view the nature of proceedings and the orders, I do not find any error in the view taken by the appellate and revisional courts where detailed discussion has been made by both the courts. 29. Once in the light of the aforesaid Authorities referred to hereinabove, it is clear that mutation entries do not have any impact on the title of the parties and even otherwise, the orders passed by the mutation courts are subject to the result of regular proceedings either on civil or revenue side, this writ petition is disposed off in the following terms: (a) Challenge made to the order dated 09.01.2009 passed by the Sub Divisional Officer, Rudrapur, District-Deoria (respondent no. 3), order dated 02.04.2009 passed by the Additional Commissioner (Administration), Gorakhpur, Division-Gorakhpur and order dated 23.04.2021 passed by the Additional Commissioner (Judicial) I, Gorakhpur, Division-Gorakhpur fails and prayer in this regard is hereby refused. (b) It is observed that orders impugned in the present writ petition shall remain subject to the ultimate decision taken in the regular proceedings. (c) The orders impugned shall be given effect to in the revenue records within a period of one month from today.