Paramsukh v. Komal Singh) under Section
Case Details
Court No. - 4 Case :- WRIT - B No. - 615 of 2023 Petitioner :- Komal Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Vineet Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Jayant Banerji,J.
Legal Reasoning
Heard Sri Vineet Kumar Singh, learned counsel for the petitioner and Sri Om Prakash Shukla, learned Standing Counsel, appearing for the respondent nos. 1,2 and 3. This writ petition has been filed praying for the following reliefs:- "A. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 25.7.2022 passed by the Member(Judicial), Board of Revenue, U.P. Lucknow in Revision No. 2134 of 2019 (Computerized Case No. R 20190101002134 (Paramsukh Vs. Komal Singh) under Section 219 of the U.P. Land Revenue Act, 1901 (Annexure 8 to this writ petition). B. Issue a writ, order or direction in the nature of mandamus commanding the respondent authorities not to give effect to the impugned order dated 25.7.2022 referred to above." The contention of the learned counsel for the petitioner is that the petitioner was brother of late Phool Singh, with whom he shares a common ancestor, namely, their father Dal Chand, who is deceased. It is stated that on the basis of an alleged will executed in favour of Samanti, wife of late Phool Singh, mutation proceedings were initiated which came to be dismissed by the competent authority on 27.12.1979 for want of evidence. It is stated that the aforesaid Samanti moved another application on 14.4.1980 seeking mutation of her name in the revenue records pursuant to alleged will and by an order dated 30.5.1980, the authority directed mutating her name in the revenue record by expunging the name of Dal Chand. It is contended that the order of 30.5.1980 was without jurisdiction and, therefore, the petitioner filed a restoration application before the respondent no.3-Naib-Tehsildar being Case No. 376 of 2018 bearing Computerized Case No. T201801010400376, wherein an order was passed by the respondent no. 3 on 5.3.2018 asking the legal representative of Smt. Samanti to produce the registered will and other evidence before the Court. It is stated that the son of late Samanti filed review application on 12.3.2018 challenging the order of respondent no.3 dated 5.3.2018. It is stated that despite moving the review application, the heir and legal representative of late Samanti, namely, Paramsukh challenged the order of respondent no.3 dated 5.3.2018 before the Board of Revenue in a revision, which came to be allowed by the impugned order dated 25.7.2022. It is the contention of learned counsel for the petitioner that the order of Naib-Tehsildar, respondent no.3 dated 5.3.2018 is interlocutory in nature and, therefore, the revision before the Board of Revenue is not maintainable. It is further stated that the impugned order fails to consider the fact that the order of mutation dated 30.5.1980 could not have been passed without recalling the order dated 27.12.1979 and as such is a nullity. It is further stated that there was no disclosure with regard to filing of the review application by the respondents- heirs of late Samanti in the revision. Learned Standing Counsel on the other hand has stated that the order passed by the Board of Revenue is justified, inasmuch as the challenge was made by the petitioner to the order of respondent no.3 dated 30.5.1980 in the year 2016 which was nearly after 36 years of the order of mutation and without even considering the issue of limitation, the order was passed by the Tehsildar. Therefore, under the circumstances, this Court may not interfere in the order passed by the Board of Revenue which even otherwise is in accordance with law. Having heard the contentions of learned counsel for the parties, it is evident from the record that the application for recall of the order dated 30.5.1980 was filed by the petitioner in the year 2016. From the record, it appears that the restoration application itself was filed in the year 2016. Learned counsel for the petitioner has not been able to demonstrate that any order was passed by the authority considering the application for condonation of delay and condoning the delay itself before registering the case. The order dated 5.3.2018 reflects that it proceeds on the specious premise that without setting aside the original order dated 27.12.1979 and restoring the case, the order dated 30.5.1980 would have no legal existence. The order, therefore, proceeds to direct the heirs of late Samanti to produce registered will and other evidence. An important factor that needs to be considered is that by order dated 5.3.2018, the respondent no.3 has proceeded to call for evidence from the private respondents without passing any order of restoration. The Board of Revenue while considering the matter has stated that the case for mutation was dismissed on 27.12.1979 for want of evidence and in that it was specified that the case is dismissed due to want of evidence and the matter be consigned and that the matter relates to succession and succession has to be necessarily decided. Therefore, the Supervisor Kanoongo be informed that in case the case is uncontested then disposal be done as per the rules and in case there is a dispute, the matter be reported. After referring to the order sheet of restoration case filed by the petitioner before the respondent no.3, it was stated that when Samanti Devi had died, there is no record to the effect as to who was substituted in her place. The Board of Revenue went on to record that the order dated 5.3.2018 passed by respondent no. 3 is barred by Section 231 of the U.P. Revenue Code and that the application moved by the Samanti Devi after rejection of her application for mutation in 1979 is a kind of restoration application. The order dated 5.3.2018 was accordingly quashed. The issue with regard to entitlement to the property in question cannot be settled in mutation proceedings, which only records mutation on the basis of possession for the sole purpose of determining the person from whom revenue is to be recovered. The mutation proceedings are summary in nature and do not confer title or takeaway title on or from any person. The substantive remedy and proper course for a person aggrieved is to file an appropriate proceeding in an appropriate Court of law, seeking declaration or such other/further relief as advised. No ground has been raised by the petitioner that would entitle interference in writ jurisdiction in respect of the order impugned. Under the circumstances, the interference in the order dated 25.7.2022 is declined. This writ petition is, accordingly, disposed of, leaving it open for the petitioner to stake his claim before the appropriate forum in accordance with law as he may be advised. Order Date :- 17.2.2023 sfa/ (Jayant Banerji, J) Digitally signed by :- SYED FAHEEM AHMAD High Court of Judicature at Allahabad