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2023 DIGILAW 2163 (ALL)

Prafull Kumar Singh v. State Of U. P.

2023-09-19

CHANDRA KUMAR RAI

body2023
JUDGMENT : (Chandra Kumar Rai, J.) 1. Supplementary affidavit filed today is taken on record. 2. Heard Mr. Pankaj Kumar Ojha, Counsel for the petitioner and Mr. Gyanendra Pratap Singh for respondent no.4 and Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents. 3. Brief facts of the case are that one Gajraj Singh was the recorded tenure holder of the plot in dispute. Gajraj Singh has alleged to execute a registered will deed on 23.12.1992 in favour of Usha Singh. On 9.1.1993., Gajraj Singh has alleged to execute another unregistered will deed on 9.1.1993 in favour of his nephew-Digvijay Singh and others. Tehsildar initially allowed the mutation in favour of Vijay Bahadur and others vide order dated 15.7.1993 but later on the order for mutation dated 15.7.1993 was recalled and fresh order was passed on 12.11.2018 in favour of Usha Singh on the basis of registered will deed executed on 23.12.1992. The order of Tehsildar was maintained in revision by Revisional Court while dismissing the revision filed by petitioner vide impugned order dated 21.11.2022 hence this writ petition for quashing the order dated 12.11.2018 and 21.11.2022 in the proceeding under Section 34 of the U.P. Land Revenue Act. 4. Counsel for the petitioner submitted that Gajraj Singh has executed the unregistered will deed in favour of Vijay Bahadur and others which was the last will of the deceased-Gajraj. He further submitted that during pendency of the mutation proceeding, compromise has taken place by which the respondent no.4-Usha Singh has admitted the execution of subsequent will deed dated 9.1.1993 but the Court has arbitrarily ignored the compromise taken place during pendency of the proceeding. He further submitted that Revisional Court has also failed to consider the points set up in the revision and argued before the Revisional Court. He further submitted that although petitioner filed a civil suit No. 221 of 2021 against the Usha Singh before the Court of Civil Judge Junior Division, Chunar, Mirzapur for declaring will deed dated 24.12.1992 as null and void but the order of mutation passed by Tehsildar on the basis of alleged will deed dated 23.12.1992 cannot be sustained. He further submitted that impugned orders be set aside and mutation matter be considered afresh in the light of the compromise taken place between the parties before the Tehsildar. He further submitted that impugned orders be set aside and mutation matter be considered afresh in the light of the compromise taken place between the parties before the Tehsildar. He further placed reliance upon the judgment of Apex Court reported in 2021 (0) Supreme Court (SC) 487 Jitendra Singh Vs. State of Madhya Pradesh. 5. On the other hand, Mr. Gyanendra Pratap Singh, learned Counsel appearing for respondent no.4 submitted that Gajraj Singh has executed a registered will deed in favour of Usha Singh which has not been cancelled in accordance with law, as such, the mutation order was rightly passed by Tehsildar in favour of the respondent no.4-Usha Singh. He further submitted that revision filed by the petitioner has also been dismissed and no interference is required in the matter. He submitted that petitioner has already filed suit for declaration in respect to the will deed executed in favour of respondent no.4, as such, petitioner should press his pending civil suit and no interference is required against the impugned order passed in the summary proceeding under Section 34 of U.P. Land Revenue Act. 6. Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents supported the impugned orders and submitted that writ petition is liable to be dismissed in view of the ratio of law laid down by this court in the case reported in Smt. Kalawati Vs. Board of Revenue and Others, reported in (2022) 155 R.D. 169. 7. I have considered the arguments advanced by learned Counsel for the parties and perused the records. 8. There is no dispute about the fact that Tehsildar has passed the order of mutation in favour of respondent no.4, Usha Singh on the basis of registered will deed dated 24.12.1992. There is also no dispute about the fact that revision filed by the petitioner has also been dismissed. There is also no dispute about the fact that civil suit No. 221 of 2021 filed by petitioner in respect to the will deed dated 24.12.1992 is pending before the Civil Court. 9. It is material that Tehsildar while passing the order of mutation on the basis of registered will deed dated 24.12.1992 has recorded finding of fact for passing order of mutation in favour of the respondent no.4-Usha Singh and the order of Tehsildar has been maintained in revision. 10. 9. It is material that Tehsildar while passing the order of mutation on the basis of registered will deed dated 24.12.1992 has recorded finding of fact for passing order of mutation in favour of the respondent no.4-Usha Singh and the order of Tehsildar has been maintained in revision. 10. The finding recorded by Tehsildar while passing the order of mutation in favour of Usha Singh will be relevant for perusal which is as under:- ^^i=koyh dk lE;d ifj'khyu fd;kA i=koyh ij miyC/k lk{;kuqlkj xtjkt flag e`rd }kjk lxh iq=h m"kk flag ds i{k esa iathd`r olh;rukek rgjhj fd;k x;k gS] ftlds vk/kkj ij olh;rxzfgrk m"kk flag }kjk ukekUrj.k fjiksVZ nkf[ky fd;k gS rFkk viathd`r olh;rukek ds vk/kkj ij fnfXot; flag }kjk ukekUrj.k fjiksVZ nkf[ky fd;k x;k gSA olh;rxzfgrk m"kk flag dh rjQ ls iathd`r olh;r ds ckor lk{; iw.kZ dj mls iq"V djk;k x;k gSA fnfXot; flag vkfn izLrqr djus gsrq fnukad 23-05-2008 ls gh i;kZIr volj iznku fd;k x;k fdUrq muds }kjk dksbZ lk{; izLrqr ugh fd;k tkuk ek= okn dks foyfEcr fd;k tkuk ifjyf{kr gksrk gSA okn i=koyh fnukad 13-06-2008 ls gh cgl esa fu;r gksrh pyh vk jgh gSA iz'uxr okn i=koyh ds fuLrkj.k gsrq ekŒ mPp U;k;ky; bykgkckn esa fjV uaŒ 57098 o"kZ 2016 ;ksftr djk;k x;k ftlesa ekŒ U;k;ky; }kjk ,d o"kZ esa fuLrkfjr djus gsrq funsZf'kr fd;k x;k gSA iz'uxr oknk esa mHk; i{k dks ;k{; o lquok;h dk i;kZIr volj iznku fd;k tk pqdk gS vc vkSj volj iznku fd;s tkus dk dksbZ fof/kd vkSfpR; ugha gSA izfroknh }kjk nkf[ky vkifRr i= cyghu gksus dh n'kk esa fujLr fd;k tkrk gS] rFkk fnfxot; flag vkfn }kjk viathd`r olh;rukek ds vk/kkj ij nkf[ky ukekUrj.k fjiksVZ fujLr fd;k tkrk gSA m"kk flag tks xtjkt flag e`rd dh lxh iq=h ;kfu LokHkkfod okfjl gksus ds lkFk&lkFk muds i{k esa e`rd xtjkt flag }kjk iathd`r olh;r Hkh rgjhj gS] ftls xokgksa }kjk iq"V Hkh djk;k x;k gS] ds i{k esa tkekUrj.k vkns'k ikfjr fd;s tkus esa dksbZ fof/kd vM+pu izrhr ugh gksrk gSA vkns'k vr% vkns'k gqvk fd fLFkr ekStk cxgka ijxuk d`;kr rglhy pqukj ftyk ehjtkiqj dh [krkSuh lu~ 1423 ls 1428 QŒ ds [kkrk laŒ126 HkwŒjkŒ ijrk [kkrk o xzkx frxklkuh ijxuk d`;kr rglhy pqukj ftyk ehjtkiqj dh [krkSuh lu~ 1423 ls 1428 QŒ ds [kkrk laŒ 50 HkwŒjkŒijrk [kkrk ls iathd`r olh;rukek fnukad 12-12-1992 bZŒ ds vk/kkj ij ohl;rdrkZ e`rd xtjkt flag iq= xqykc flag ckgnw vafdr uke pUnzHkku flag o gkSflyk izlkn flag iq=x.k lwjt izlkn flag o txr cgknwj flag iq= LoŒ jkeyxu flag o fot; cgknqj flag o vt; cgknqj flag iq=x.k nsosUnz ujk;u flag o izQqYy dqekj o jkts'k dqekj o uhjt flag iq=x.k fnfXot; flag o izsek nsoh iRuh fnfXot; flag o fuŒx.k cxgka ijxjk d`;kr rlhy pqukj ftyk ehjtkiqj dk uke fujLr djds olh;rxzfgrk m"kk flag iRuh yYyw flag fuŒxzke fcgM+k i=ky; BBjk ftyk ikjk.klh dk uke crkSj mRrjkf/kdkjh ntZ dkxtkr eky gksA okn veynjken gksA i=koyh nkf[ky nrg gksA ¼vkse izdk'k ik.Ms;½ rglhynkj pqukj] ehjtkiqj^^ 11. It is also relevant that the registered will deed executed by Gajraj Singh is alleged to be substituted by unregistered will deed, as such, perusal of Section 92 Proviso (4) of the Indian Evidence Act 1872 will be relevant which is as under:- "92. Exclusion of evidence of oral agreement.—When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso (1).—Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law. Proviso (2).—The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3).—The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4).—The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5).—Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract. Proviso (6).—Any fact may be proved which shows in what manner the language of a document is related to existing facts." 12. Proviso (6).—Any fact may be proved which shows in what manner the language of a document is related to existing facts." 12. Hon'ble Apex Court in the case reported in 2000(91) RD 615 , S. Saktivel (Dead) by L.R.s vs. M. Venugopal Pillai and Others has discussed the scope of Section 92 proviso 4, in the paragraph no. 7 of the judgment which is as follows:- "In sum and substance what proviso (4) to Section 92 provides is that where a contract or disposition, not required by law to be in writing, has been arrived at orally then subsequent oral agreement modifying or rescinding the said contract or disposition can be substantiated by parol evidence and such evidence is admissible. Thus if a party has entered into a contract which is not required to be reduced in writing but such a contract has been reduced in writing, or it is oral in such situations it is always open to the parties to the contract to modify its terms and even substitute a new by oral contract and it can be substantiated by parol evidence. In such kind of cases the oral evidence can be let in to prove that the earlier contract or agreement has been modified or substituted by new oral agreement. Where under law a contract or disposition are required to be in writing and the same has been reduced in writing, its terms cannot be modified or altered or substituted by oral contract or disposition. No parol evidence will be admissible to substantiate such an oral contract or disposition. A document for its validity or effectiveness is required by law to be in writing and, therefore, no modification or alteration or substitution of such written document is permissible by parol evidence and it is only by another written document the terms of earlier written document can be altered, rescinded or substituted. There is another reason why the defendant/appellant cannot be permitted to let in parol evidence to substantiate the subsequent oral arrangement. The reason being that the settlement deed is a registered document. The second part of proviso (4) to Section 92 does not permit leading of parol evidence for proving a subsequent oral agreement modifying or rescinding the registered instrument. The terms of registered document can be altered, rescinded or varied only by subsequent registered document and not otherwise. The reason being that the settlement deed is a registered document. The second part of proviso (4) to Section 92 does not permit leading of parol evidence for proving a subsequent oral agreement modifying or rescinding the registered instrument. The terms of registered document can be altered, rescinded or varied only by subsequent registered document and not otherwise. If the oral arrangement as pleaded by the appellant if allowed to be substantiated by parol evidence it would mean re-writing of Ex.A/1 and, therefore, no parol evidence is permissible." 13. It is also material that petitioner has already filed a civil suit for declaration in respect to the will deed executed on 24.12.1992 in favour of respondent no.4-Usha Singh which is pending before the Civil Court, as such, it will be proper for the petitioner to press his pending civil suit in accordance with law. 14. The case law of Hon'ble Apex Court in Jitendra Singh (Supra) as cited by learned Counsel for the petitioner also held that mutation order passed on the basis of the will deed shall be subject to the adjudication of the dispute by regular Court. 15. Considering the entire facts and circumstances as well as the ratio of law laid down by Apex Court in S. Saktivel (Supra), no interference is required against the impugned orders passed in the summary proceeding under Section 34 of the U.P. Land Revenue Act 1901. 16. Writ petition is accordingly dismissed. Needless to say that orders passed in the mutation proceeding will not come in the way of the petitioner to establish his claim before the Civil Court in accordance with law.