High Court
Case Details
Reserved On:22.11.2022 Delivered On:23.12.2022 Court No. - 52 Case :- WRIT - B No. - 1878 of 2020 Petitioner :- Kalawati And 3 Others Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Rameshwar Singh Kushwaha Counsel for Respondent :- C.S.C.,Bhaju Ram Pprasad Sharma,Mool Chandra Hon'ble Chandra Kumar Rai,J. 1. Heard Sri R.S. Kushwaha, learned counsel assisted by Ms. Nisha Singh, counsel for the petitioners and Mr. B.R.P. Sharma and Mool Chandra, counsel for contesting respondents. 2. Brief facts of the case are that one Chhote Lal had no male issue, he had five daughters, namely, Kalawati , Amrawati, Leelawati, Phoolmati Manas Singh & Rajmati. Respondent no.5- Jeeviteshwar Kamlesh Anagh alias Kamlesh Kumar is son of Amrawati. Petitioners are daughter of Chotte Lal. Petitioners’ father was recorded owner of Plot Nos.70, 656, 691 situated in Village- (Mauza) Rasoolpur Sukuvara, Pargana Karari, Tahsil Manjhanpur, District- Kaushambi, Plot Nos. 8, 15, 636, 637, 665, 667, 668 & 669/662 Ka, situated in Village- (Mauza) Rasoolpur Sukuvara, Pargana Karari, Tahsil Manjhanpur, District- Kaushambi, Plot Nos.1584 & 1669, Village- (Mauza) Karari, Pargana Karari, Tahsil Manjhanpur, District- Kaushambi. Respondent no.5 filed an application under Section 34 of U.P. Revenue Code, 2006 impleading Chotte Lal as opposite party on the basis of sale deed as well as Will- deed. Chotte Lal had expired on 22.2.2017. Naib Tahsildar vide order dated 13.4.2017 ordered for mutation of the name of respondent no.5 in place of Chotte Lal on the basis of registered sale deed. Against the order dated 13.4.2017 passed by the Naib Tahsildar, petitioners filed four appeals under Section 207 of the U.P. Revenue Code, 2006, which were dismissed by the Sub-Divisional Magistrate vide order dated 4.10.2017. Petitioners filed four revisions before the Board of Revenue against the order dated 4.10.2017 and the Board of Revenue has dismissed the revisions vide order dated 22.01.2020, hence this writ petition. 3. One Civil Suit No.209/2017 has been filed by respondent no.5, which is pending in Civil Court. 4.
Legal Reasoning
There is no dispute about the fact that proceeding under Section 34 of the U.P. Revenue Code, 2006 was initiated by respondent no.5 on the basis of registered sale deed executed on 9.9.2006 by recorded tenure holder Chotte Lal. Naib Tahsildar vide order dated 13.4.2017 allowed the mutation application of respondent no.5 on the basis of registered sale deed. The order of Naib Tahsildar dated 13.4.2017 has been maintained in appeal as well as revision. 9. So far as the argument advanced by learned counsel for the petitioner that in view of the provisions contained under Section 34, 35, 36, 206 (2) (b) of U.P. Revenue Code, 2006, the order passed by Naib Tahsildar is without jurisdiction, the provisions contained under Chapter XIII, Paragraph 313 of the U.P. Revenue Manual will be relevant which has been quoted above in which the provision has been made for delegation of the power of Tahsildar to Naib Tahsildar, as such, in view of the provisions contained under Chapter XIII, Paragraph 313 of the U.P. Revenue Manual, the order passed by the Naib Tahsildar cannot be said to be without jurisdiction. 10. The next argument advanced by learned counsel for the petitioner that mutation order dated 13.4.2017 5 passed by the Naib Tahsildar was against the dead person, Chotte Lal, who expired on 22.2.2017 and the order was passed on 13.4.2017, as such, the order will be against dead person is concerned, since the proclamation was already issued in the mutation proceeding initiated by respondent no.5 for recording the name in place of recorded tenure holder, Chotte Lal, as such, it cannot be said that entire proceeding will be vitiated under Section 34 of the U.P. Revenue Code, 2006. 11. The suit for cancellation of the sale deed executed in favour of respondent no.5 is stated to be pending in the Civil Court at the instance of the petitioner although there is no documentary proof regarding the same, as such, the order passed by the Naib Tahsildar dated 13.4.2017 will be subject to the decision of civil suit, if any. It is well settled that the order passed in the summary proceeding is always subject to the decision of the dispute by regular court. 12. Considering the entire facts and circumstances, no interference is required against the impugned order. The writ petition has no merit and the same is accordingly, dismissed. Order Date :- 23.12.2022 Rameez 6 Digitally signed by :- RAMEEZ AHMED High Court of Judicature at Allahabad
Arguments
Learned counsel for the petitioners submitted that order passed by the Naib Tahsildar dated 13.4.2017 is without jurisdiction as in view of the provisions contained under Section 34, 35, 36, 206 (2) (b) of U.P. Revenue Code, 2006, the Naib Tahsildar has no jurisdiction to pass the order in the proceeding under Section 34 of the U.P. Revenue Code, 2006. He further submitted that the Naib Tahsildar has no jurisdiction under Section 35 (1) of U.P. Revenue Code, 2006 to issue proclamation as Tahsildar is only empowered to issue proclamation. He further submitted that no enquiry was made by the Tahsildar for issuing proclamation as provided under U.P. Revenue Code, 2 2006, as such, the entire proceeding is manifestly erroneous. He further submitted that the finding regarding issuance of proclamation is perverse and contrary to Section 35 (1) of U.P. Revenue Code, 2006. He further submitted that finding regarding possession of respondent no.5 (transferee) is wrong and against the provision of Section 35 of U.P. Revenue Code, 2006 as petitioners are in actual physical possession over the land in dispute since the life time of Chotte Lal and the possession was never delivered to respondent no.5. He further submitted that the order dated 13.4.2017 was passed against the dead person (Chotte Lal) without substituting the petitioners being legal heirs of Chotte Lal, as such, the impugned orders are illegal), hence the same is liable to be set aside. He further submitted that the appellate Court and the revisional Court have also failed to consider the points raised by the petitioners before them, as such, the impugned orders are liable to be set aside and writ petition should be allowed. 5. On the other hand, counsel for respondent no.5 submitted that in view of the provisions contained under Chapter XIII, Paragraph 313 of the U.P. Revenue Manual, the Naib Tahsildar would have jurisdiction of Tahsildar and if the Naib Tahsildar had decided the case there was nothing wrong in it. Paragraph No.313 of the U.P. Revenue Manual is as follows: “(b) Tehsildars and Naib-Tahsildars 313. Under section 224 read with section 221 of the United Provinces Land Revenue Act,1901, the State Government have conferred- 3 (i) all powers of Assistant Collector, II class, on all persons who are appointed to be, or to ofÏciate as Tahsildars and Naib Tahsildars. [Notification No.3736 (4) / IA-414-53, dated June 6, 1953.] (ii) all powers of a Tahsildar exercisable as such under United Provinces Land Revenue Act,1901, on. (a) all permanent Naib- Tahsildars. (b) all ofÏciating Naib-Tahsildars who have ofÏciated as such for a period not less than two years in all, and. (c) all ofÏciating Naib-Tahsildars who are on permanent Kanungo establishment and have been in the service of the State for not less than five years.” 6. He further submitted that after filing of mutation application, the proclamation was issued, as such, it will deemed to be sufÏcient service to all the objectors, who wants to file any objection in the mutation application filed by respondent no.5 in place of recorded owner Chotte Lal. He further submitted that the death of Chotte Lal will not make the order of Tahsildar dated 13.4.2017 illegal. He further submitted that all the three Courts have ordered that respondent no.5 is entitled to be recorded on the basis of registered sale deed in his favour by recorded owner Chotte Lal. He further submitted that the suit for cancellation of sale deed executed in favour of respondent no.5 filed by the petitioners is pending in civil Court, as such, no interference is required against the impugned judgments. He further submitted that writ petition arises out of mutation proceeding, as such, in view of law laid down in Smt. Kalawati Vs. Board of Revenue and Others, reported in (2022) 155 R.D. 4 169 that writ petition arises out of mutation proceeding is not maintainable. 7. I have considered the argument advanced by learned counsel for the parties and perused the record. 8.