Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 300 (ALL)

Ved Prakash v. State of U. P.

2024-01-29

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1. Heard Mr. Awadhesh Kumar Singh, learned counsel for the petitioners, Mr. Tripathi B.G. Bhai, learned counsel for respondent nos. 4 to 7 and Mr. R.C. Srivastava, learned Addl. C.S.C. for the state-respondents. 2. Brief facts of the case are that plot in dispute belonged to Ganpat, son of Hari Ram, resident of village Rudhauli, Tappa, Padhiya, Pargana Basti Purab, Tehsil and District Basti. Ganpat executed an unregistered will deed in favour of petitioners as well as Om Prakash son of Thakur on 19.2.1973. Ganpat expired on 4.3.1973. Petitioners are the heirs of deceased Ganpat, being the real cousins. Petitioners filed an application for mutation under Section 34 of the U.P. Land Revenue Act, 1901, on the basis of will deed executed on 19.2.1973. In the aforementioned mutation proceeding, Lalit Ram and Others have filed the objection on the basis of the registered gift deed, alleged to be executed on 8.5.1970 by Ganpat in their favour. Second objection was filed by Kashi Prasad and others and third set of objection was filed by Govind Saran, on the basis of agreement to sale executed by Ganpat in their favour and 4th set of objection was filed by Smt. Mathura, claiming herself to be the heir of deceased Ganpat. The evidences were adduced by the parties in the aforementioned mutation proceeding. The Tahsildar vide order dated 17.11.1975, allowed the mutation application filed by the petitioner, on the basis of the will deed and rejected the objection filed by the other set of opposite parties. Against the order of the Tahsildar dated 17.11.1975, Jeeva Ram and Others filed an appeal under Section 210 of the U.P. Land Revenue Act which was heard by respondent no.3 and the same was allowed vide order dated 23.6.2015, setting aside the order of the Tahsildar dated 17.11.1975 as well as directed the authorities to record the name of Lalit Ram, Kamta Prasad, Raghvendra Prasad, Shailendra Prasad and Rupan, on the basis of the gift deed dated 8.5.1970, in the place of deceased Ganpat. Petitioners challenged the appellate order dated 23.6.2015 through revision No. -2055 under Section 219 of the U.P. Land Revenue Act before the Board of Revenue which was entertained and an interim protection was granted. The Board of Revenue finally heard the matter and vide order dated 24.7.2023 dismissed the revision. Petitioners challenged the appellate order dated 23.6.2015 through revision No. -2055 under Section 219 of the U.P. Land Revenue Act before the Board of Revenue which was entertained and an interim protection was granted. The Board of Revenue finally heard the matter and vide order dated 24.7.2023 dismissed the revision. Hence, this writ petition, challenging the orders dated 24.7.2023, passed by the respondent no.2 and 23.6.2015, passed by respondent no.3. 3. It is also material fact that against the appellate order dated 23.6.2015, Revision No.1685 of 2015 was also filed under Section 219 of the U.P. Land Revenue Act, 1901 before the Board of Revenue by one Om Prakash which was consolidated with Revision No.2055 of 2015 and both the revisions were dismissed vide common impugned order dated 24.7.2023. Om Prakash challenged the order dated 24.7.2023 passed in Revision No.1685 of 2015 as well as order dated 23.6.2015, passed by respondent no.3 in appeal through Writ B No.825/2023. 4. This Court vide judgment dated 21.9.2023 disposed of the writ petition with liberty to the petitioner to file a suit for declaration under Section 144 of the U.P. Revenue Code, 2006. It is also material fact that Civil Suit No.164 of 2015 (Ved Prakash and Others vs. Lalit Ram and Others) filed for cancellation of gift deed dated 8.5.1970 as well as injunction is pending in the court of Civil Judge (S.D.), Basti. 5. Learned counsel for the petitioner submitted that the Tahsildar has rightly passed the order for mutation in favour of the petitioner on the basis of the will deed, executed in favour of the petitioners along with Om Prakash. He further submitted that the Tahsildar has considered the oral and documentary evidence adduced by the parties before passing the order of mutation in favour of the petitioners, as such, no interference was required against the order of mutation passed by the Tahsildar. He further submitted that the appellate court has exceeded his jurisdiction in setting aside the order of the Tahsildar and directing for recording the name of the persons on the basis of the gift deed rather will deed in question. He further submitted that the gift deed which is alleged to be executed in favour of the contesting respondent, cannot be relied upon in view of the provisions contained under Section 122 of the Transfer of the Property Act. He further submitted that the gift deed which is alleged to be executed in favour of the contesting respondent, cannot be relied upon in view of the provisions contained under Section 122 of the Transfer of the Property Act. He further placed reliance upon the judgment of the Hon’ble Apex Court reported in 2019 (143) RD 83 , S. Sarojini Amma vs. Velayudhan Pillai Sreekumar. 6. On the other hand, Mr. Tripathi B.G. Bhai, learned counsel appearing for the respondent nos. 4 to 7 submitted that the instant writ petition is not maintainable in view of the dismissal of the earlier Writ B No.825/2023, filed by one Om Prakash against the same appellate order dated 23.6.2015 as well as revisional order dated 24.7.2023, passed in the different Revision No.1685/2015. He further submitted that the similar controversy as well as the similar impugned orders have been maintained by this Court while deciding the earlier Writ B No.825/2015, as such, the instant writ petition is also liable to be dismissed on same grounds as mentioned in the earlier order passed by this Court in Writ B No.825/2015. He further submitted that the petitioners along with Om Prakash have already filed a Civil Suit No.164/2015 for cancellation of the gift deed executed by the recorded tenure holder as well as injunction, as such, no interference is required in the matter unless the gift deed is cancelled by the civil court. He further submitted that even on merit, the gift deed has been rightly taken into consideration by the appellate court while directing to record the name of the person on the basis of gift deed in question. He also submitted that in view of the provisions contained under Sections 123 & 129 of the Transfer of Property Act, the gift deed in question has been rightly taken into consideration while passing the order for mutation on the basis of gift deed in question. He placed reliance upon the judgment of the Hon’ble Apex Court reported in 2015 (126) RD 616 Renikuntla Rajamma through Lrs. vs. K. Sarwanamma on the point of admissibility of gift deed in question. He also placed reliance upon the judgment of the Hon’ble Apex Court as well as of this Court reported in 1998 (5) SCC 637 State of Tripura vs. Tripura Bar Association; 2010 (13) SCC 336 Sant Lal Gupta and Others vs. Modern Coop. vs. K. Sarwanamma on the point of admissibility of gift deed in question. He also placed reliance upon the judgment of the Hon’ble Apex Court as well as of this Court reported in 1998 (5) SCC 637 State of Tripura vs. Tripura Bar Association; 2010 (13) SCC 336 Sant Lal Gupta and Others vs. Modern Coop. G.H. Society Ltd. Others; AIR 2003 Supreme Court 3476 Rajasthan Public Services Commission vs. Harish Kumar Purohit and Others; 2019 (37) LCD 53 Krishna Murari Mishra vs. State of U.P. and Others & S.B. No.18/2021 (LB) Hodal Singh Harish & Anr. vs. State of U.P. and Others on the point of maintainability of the writ – petition. He finally submitted that the writ petition filed by the petitioners be dismissed. 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 one Ganpat was the recorded tenure holder of the plot in dispute. There is also no dispute about the fact that the Tahsildar has ordered to record the name of the petitioners on the basis of the will deed executed on 19.2.1973. There is also no dispute about the fact that in appeal, the appellate court has set aside the order of the Tahsildar and directed to record the name of the persons on the basis of the gift deed executed by Ganpat on 8.5.1970. There is also no dispute about the fact that the Civil Suit No.164/2015 filed by the petitioners for cancellation of the gift deed dated 8.5.1970 as well as injunction is pending before the civil court. There is also no dispute about the fact that Writ B No.825/2023 filed by Om Prakash who was also the will holder along with the petitioners in the will deed, alleged to be executed on 19.2.1973, has been dismissed by this Court vide order dated 21.9.2023. 9. In order to appreciate the controversy involved in the present petition, first of all the order dated 21.9.2023 passed by this Court in Writ B No.825/2023 will be relevant for perusal which is quoted hereunder:- “Heard learned Counsel for the parties. In view of the order proposed to be passed by this Court, notice to the private-respondents is dispensed with. In order to appreciate the controversy involved in the present petition, first of all the order dated 21.9.2023 passed by this Court in Writ B No.825/2023 will be relevant for perusal which is quoted hereunder:- “Heard learned Counsel for the parties. In view of the order proposed to be passed by this Court, notice to the private-respondents is dispensed with. The present petition has been filed for the following main relief:- "(i) Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 24.07.2023 as well as order dated 23.06.2015 passed by opposite party no. 1 and 2 contained as Annexure No. 1 & 2 to the writ petition." By means of the present petition, the petitioner has challenged the order dated 24.07.2023 passed by respondent no.1-Board of Revenue, Lucknow, in Revision No. 255 (Ved Prakash Versus Lalit Ram and Others) and connected Revision No. 1685 of 2015 (Om Prakash Versus Lalit Ram and Others), which were filed under Section 219 of U.P. Land Revenue Act, 1901 (in short "Act of 1901") and the order dated 23.06.2015 passed in appeal No. 70/98/117 (Jeeva Ram and Others Versus Ved Prakash and Others), passed by respondent no.2/Additional Officer First, Basti. In nutshell in this petition the order(s) under challenge relates to mutation proceedings. It would be apt to take note of the fact, which has been indicated by the learned counsel for the parties, that the claim of opposite party no.4-Sri Kant is based on registered gift deed dated 08.05.1970 executed by one Ganpat in favour of Lalit Ram (father of opposite party no.4) and others and the claim of the petitioner is based on unregistered will dated 19.02.1973 executed by Ganpat in favour of Om Prakash (petitioner), Ved Prakash and Ravindra Prakash. It would also be relevant to indicate, at this stage, that learned counsel for the Caveator/contesting opposite party no.4 namely Sri Kant son of Late Lalit Ram stated that order dated 24.07.2023 and 23.06.2015, challenged in the present petition have also been challenged by Ved Prakash and Ravindra Prakash before this Court at Allahabad by preferring Writ -B No.3060 of 2023, which is pending consideration. He also very fairly submitted that in that petition Om Prakash is not the petitioner and he can, as per law, institute a writ petition and the fact related to pending petition before this Court at Allahabad, has also not been disputed by the learned counsel for the petitioner. It is also to be noted that a suit for cancellation of registered gift deed dated 19.03.1973, which, is the basis of the claim of opposite party No.4, instituted by the petitioner and two others namely Ved Prakash and Ravindra Prakash, is pending as OS No.000164 of 2015 before competent court of jurisdiction at Basti. The case for mutation instituted under Section 34 of the Act of 1901 as Case No.355 (Ved Prakash vs. Ganpat & Others) was decided finally on 17.11.1975 by the Tehsildar concerned and this order was passed in favour of the petitioner and two others namely Ved Prakash and Ravindra Prakash. Challenging the order dated 17.11.1975, an appeal was filed i.e. Appeal No.70/98/117 under Section 210 of the Act of 1901 and the Appellate Court, after taking note of the gift deed dated 08.05.1970 and judgment of the Hon'ble Apex Court passed in the case of Renikuntala Rajamma (Dead) Through L.Rs. vs. K. Sarwanamma; reported in 2015 (126) RD 616 allowed the same vide order dated 23.06.2015. This order was challenged by the petitioner by way of filing the Revision bearing No.1685 of 2015 under Section 219 of the Act of 1901 and the revisional authority, after observing that the appellate court has not committed any material irregularity as also that the entries in the revenue record are fiscal in nature and they do not confer any right or title and based upon the same, the title cannot be presumed, dismissed the revision vide impugned order dated 24.07.2023. In the aforesaid background of the case, present petition has been filed. Mutation proceedings are summary in nature and they do not decide any right or title between the parties; rather they are drawn only for fiscal purposes. Furthermore, the order passed in mutation proceedings are always subject to declaration of rights which may be sought by the parties concerned by instituting a regular suit. Mutation proceedings are summary in nature and they do not decide any right or title between the parties; rather they are drawn only for fiscal purposes. Furthermore, the order passed in mutation proceedings are always subject to declaration of rights which may be sought by the parties concerned by instituting a regular suit. Section 40A of the U.P. Land Revenue Act, 1901, (now repealed) as also Section 39 of U.P. Revenue Code, 2006, which is applicable w.e.f. 11.02.2016, make it clear that no mutation order shall debar any person from establishing his rights in the land by means of a regular suit. Mutation of a property in 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. The mutation proceedings do not adjudicate the rights of the parties and orders passed in mutation proceedings are always subject to adjudication by competent Court. Considering the aforesaid facts indicated, in brief, hereinabove, including that a suit for cancellation of the gift deed dated 08.05.1970 is pending consideration as also the law related to the mutation proceedings and an opportunity to get the title declared under the law itself is available to the aggrieved party, this Court is not inclined to entertain the present petition. Accordingly, the present petition is disposed of finally with liberty to the petitioner to press the suit for cancellation of gift deed pending as O.S. No. 000016 of 2015 and he is also at liberty to press the application seeking interim protection in the said suit. The liberty is also granted to the petitioner to prefer a suit for declaration in terms of Section 144 of U.P. Revenue Code 2006 as also to prefer an application under Section 146 of the Code of 2006, seeking interim protection. At this stage, learned counsel for the petitioner states that opposite party No.4 would alienate or transfer or create charge over the property in dispute. In response, learned Counsel for the side opposite Sri Pradeep Kumar Tiwari, says that opposite party no. 4 would neither alienate nor transfer or create charge over the property in dispute for a period of three months as it would be sufficient time to get interim protection from the competent court. Ordered accordingly. In response, learned Counsel for the side opposite Sri Pradeep Kumar Tiwari, says that opposite party no. 4 would neither alienate nor transfer or create charge over the property in dispute for a period of three months as it would be sufficient time to get interim protection from the competent court. Ordered accordingly. It is also expected from the trial court, where the case for cancellation of gift deed is pending, the trial court shall make all endeavour to decide the case at the earliest as the dispute between the parties is pending since 1975, as initial order passed was in mutation case, on 17.11.1975 .” 10. The perusal of the order fully demonstrates that the same order of the appellate court dated 23.6.2015 as well as revisional order of the Board of Revenue dated 24.7.2023 although in different revision, was under challenge before this Court in Writ B No. -825/2023 and this Court after considering the gift deed in question as well as the will deed in question, has disposed of the writ petition with liberty to the petitioner – Om Prakash to file a suit for declaration of his right. The pendency of the civil suit was also taken into consideration by this Court while passing the aforementioned order dated 21.9.2023 in Writ B No. 825/2023. 11. Since this Court has already decided the writ petition dealing the same controversy arising out of the same unregistered will deed as well as the gift deed in question, as such, there can be no further consideration of the same controversy by this Court. The only difference in the earlier writ petition and in the instant writ petition is that before the Board of Revenue, there were two revisions against the common appellate order which were consolidated and decided by the Board of Revenue by a common order, as such, there can be no further consideration of the dispute arising out of summary proceeding. 12. It is also material that petitioners have already filed a suit for cancellation of the gift deed executed on 8.5.1970, as such, the order passed in the mutation proceeding will be subject to the decision of the civil suit which is pending before the civil court. 13. 12. It is also material that petitioners have already filed a suit for cancellation of the gift deed executed on 8.5.1970, as such, the order passed in the mutation proceeding will be subject to the decision of the civil suit which is pending before the civil court. 13. Considering the entire facts and circumstances, especially, the order passed by the Lucknow Bench of this Court on 21.9.2023 in Writ B No.825 of 2023, no interference is required against the impugned order and the writ petition is liable to be dismissed. 14. The writ petition is dismissed.