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2023 DIGILAW 872 (ALL)

Ajay Kumar Agrawal v. Nagar Nigam Varanasi

2023-04-03

KSHITIJ SHAILENDRA

body2023
JUDGMENT : 1. Heard Sri Tarun Agrawal, learned counsel for the petitioner, Sri Vineet Sankalp, learned counsel appearing for respondent no. 1 and Sri Prashan Pandey, learned counsel representing for respondent nos. 2 to 7 and perused the record. 2. Pursuant to a registered sale deed dated 29.6.2009, the petitioners have applied for mutation of their names in the records of Nagar Nigam, Varanasi in place of the vendor namely Lalji in respect of the property transferred to them. 3. It is contended that the Additional Municipal Commissioner (Zonal Officer), Varanasi, by order dated 30.12.2009, recorded his satisfaction that during the course of spot inspection, the petitioners were found in possession and in so far as the record is concerned, the petitioners have claimed mutation on the basis of aforesaid registered sale deed. The Additional Municipal Commissioner also recorded that the objection filed by the private respondents to the effect that no partition has taken place in respect of the property in dispute and that Lalji had surrendered his rights in the property after receiving money of his share, could not stand established. Accordingly, a conclusion was drawn that name of the petitioners can be recorded over half of the property and in case objectors want to get their rights adjudicated upon, they may get the same done from the competent civil court. 4. The aforesaid order dated 30.12.2009 was challenged by the respondents by means of a statutory appeal No. 16 of 2010 under Section 472 of U.P. Municipal Corporations Act, 1959 and the appellate court i.e. Judge, Small Causes Court, Varanasi, by its order impugned dated 9.8.2016, remanded the matter to the Additional Municipal Commissioner, (Zonal Officer), Varanasi. 5. Aggrieved by the order of remand, the petitioners filed Second Appeal No. 124 of 2016 under Section 476 of the aforesaid Act before the District Judge, Varanasi which has been dismissed by Additional District & Sessions Judge (E.C. Act), Varanasi, vide order dated 02.08.2017 confirming the order dated 09.08.2016. 6. Learned counsel for the petitioners submits that the first order impugned dated 9.8.2016 was passed by accepting a document produced by the respondents, which was termed to be a family partition in the family of vendor-Lalji. 6. Learned counsel for the petitioners submits that the first order impugned dated 9.8.2016 was passed by accepting a document produced by the respondents, which was termed to be a family partition in the family of vendor-Lalji. He further submits that while recording observations/findings regarding alleged family partition, the matter was remanded by the Judge, Small Causes Court directing the Additional Municipal Commissioner to examine the same and decide the matter of mutation again. He further submits that the Judge, Small Causes Court is not competent to record any finding regarding title of the property and, therefore, direction for consideration of the alleged family settlement was beyond the jurisdiction of the appellate court. 7. Sri Agrawal further submits that since the order of remand was illegal, the petitioners filed the aforesaid second appeal in which the appellate court has recorded clear findings holding alleged family settlement as a valid document. He emphasised on para-11 of the impugned order of the second appellate court dated 2.8.2017, which reads as under:- 8. He further submits that once validity of the family settlement has been upheld by the second appellate court, nothing remains to be decided by the Additional Municipal Commissioner or to look into the matter of the mutation as the superior Court has already recorded its finding on merits. 9. Sri Agrawal further submits that in so far as the family settlement is concerned, its title was ^^;knk'r ifjokfjd le>kSrk** i.e. memo of family settlement done amongst all family members, and therefore this document is liable to be impounded for want of sufficient stamp duty. He further submits that in so far as substantive rights of the parties qua the property transferred by Lalji are concerned, admittedly, there is a civil suit being O.S. No. 817 of 2009, whereby the private respondents have claimed a decree for cancellation of sale deed dated 29.6.2009. 10. Per contra Sri Vineet Sankalp representing Nagar Nigam, Varanasi (Respondent no. 1) submits that the first order dated 3.12.2009 was passed on the basis of documents produced before the Additional Municipal Commissioner and the parties are litigating amongst themselves before Civil Court and whatever be decision of the civil court, the same would govern the mutation proceedings. 11. Sri Prashant Pandey, learned counsel representing the private respondents submits that Lalji had no right to execute sale deed in favour of the petitioners. 11. Sri Prashant Pandey, learned counsel representing the private respondents submits that Lalji had no right to execute sale deed in favour of the petitioners. He further submits that document regarding family settlement is a genuine document and since the same was not considered by the Additional Municipal Commissioner while deciding the mutation matter, no illegality can be found in the order of remand as well as order of second appellate court. He further submits that pursuant to the order of remand, the parties have a remedy to address to the Additional Municipal Commissioner with regard to their contentious, and therefore writ petition against the remand order is not maintainable. 12. Having hearing learned counsel for the parties and having gone through the record, it is evident that the basis of the claim of the petitioners in the mutation proceedings is a registered sale deed dated 29.6.2009 which, despite pendency of civil suit before the civil court, has not yet been cancelled. In so far as possession aspect is concerned, there is prima facie satisfaction recorded by the Additional Municipal Commissioner that during the course of spot inspection, the petitioners were found in possession over the property transferred to them. In so far as, the alleged family settlement is concerned, the contention of the learned counsel for the petitioners is to the effect that once the second appellate court has recorded clear findings holding alleged family settlement as a valid document, nothing remains to be adjudicated by the Additional Municipal Commissioner. Morever, the said judgement shall adversely affect the proceedings of the civil suit as the civil suit is pending in the court of Civil Judge, who is inferior in hierarchy as compared to Additional District & Sessions Judge, hence the order impugned shall cause multiple prejudice to the petitioner not only before the Additional Municipal Commissioner, but also before the civil court. 13. The argument of Sri Agrawal is to the effect that since the family settlement is not readable in evidence, the findings recorded by the first appellate court i.e. Judge, Small Causes Court whereby a direction has been issued to the Additional Municipal Commissioner to consider the document of family partition, which according to the first appellate court, was ignored by the Additional Municipal Commissioner is unsustainable. It is also submitted that there is a serious dispute regarding the authenticity of the document for want of proper stamp duty as per section 2(15) of the Stamp Act, as applicable in the State of UP. 14. I find that since the remand order was under challenge before the second appellate court, it was not open for the said court to hold the family settlement as a valid document once its admissibility etc was to be examined pursuant to the remand order itself. Therefore, findings recorded in para-11 of the impugned remand order dated 9.8.2016 as reproduced herein above are set aside. 15. In so far as the direction in impugned order of remand in the first order impugned dated 9.8.2016 is concerned, I find that the order of the Additional Municipal Commissioner is not a detailed one and the private respondents who are opposing the claim of the petitioners may have a say in the matter. At the same time, the petitioners who are also assailing validity of the document termed as ^^;knk'r ifjokfjd le>kSrk** also have a right to object to the same in whatever factual or legal ways they want. 16. In sum and substance once the matter has been remanded by the first appellate court, which order was kept intact by the second appellate court, no interference in so far as remand is concerned, is being made in the present writ petition except that the findings recorded on the validity of the family settlement have already been set aside in the above portion of the order. 17. The contention of the learned counsel for the respondents to the effect that at the strength of mutation entries, the petitioners may transfer the property need not be discussed in the present writ petition as the matter does not arise from a suit for injunction and the parties are already litigating amongst them before the civil court. 18. In view of the above, the writ petition is being disposed of with the following directions : (i) The findings recorded in paragraph-11 of the judgment dated 2.8.2017 are hereby set aside. 18. In view of the above, the writ petition is being disposed of with the following directions : (i) The findings recorded in paragraph-11 of the judgment dated 2.8.2017 are hereby set aside. (ii) Earlier order dated 9.8.2016 is kept intact subject to modification that findings recorded regarding examining the family settlement (paper 62-Ga) are hereby modified to the extent that the petitioners shall have all the rights to take such factual or legal objection as they may want against family settlement before the Additional Municipal Commissioner, who shall deal with the same during the course of proceeding. (iii) Private respondents shall also lead evidence in support of their objection before the Additional Municipal Commissioner. (iv) The Additional Municipal Commissioner shall examine all the objections and miscellaneous applications in accordance with law within scope of his jurisdiction, power and competence as an authority strictly in accordance with the provisions of U.P. Municipal Corporations Act, 1959. (v) The said proceedings of mutation shall be concluded within a period of four months from the date of production of certified copy of this order.