High Court · 2025

4. Sri Prabhuti Kant Tripathi, learned ACSC, has seriously opposed the writ petition and submitted that the action of respondent revenue authorities rejecting the mutation application cannot be questioned in proceedings under Article 226 of the Constitution of India and the matter is covered by the decision of coordinate Bench of this Court rendered in case of Smt. Kalawati Vs. Board of Revenue and others, Writ-B No. 295 of 2022 decided on 5.4.2022.

5. I have heard the learned counsel for respective parties and perused the material on record. The preliminary question raised by learned ACSC needs to be addressed first as to the maintainability of writ petition under Article 226 of the Constitution of India as the matter arises of summary proceedings under Sections 33/34 of Code of 2006.

6. It is not in dispute that proceedings for mutation is a summary proceedings. The very purpose of mutation is to record the name of the person claiming to have succeeded either by succession under Section 33 or by transfer of property either in case of sale or by family settlement under Section 34. The necessary orders are passed under Section 35. The mutation is for the fiscal purpose i.e. for realization of revenue and no title is decided through mutation proceedings.

7. Section 39 of Code of 2006 specifically provides the leverage to the party claiming title for filing declaratory suit under Section 144 of Code of 2006. It is an enabling provision which enables the party to get his/her title declared in the said proceedings. The very purpose of proceedings under Sections 33/34/35 of Code of 2006 is only to get the name mutated in revenue records. It is constantly held by various Courts as well as Apex Court in catena of judgments that the purpose of mutation is only for the realization of revenue and no right or title is created in favour of a person in whose favour the name is recorded.

8. The coordinate Bench of this Court in case of Smt. Kalawati (Supra) while dealing with the issue as to the maintainability of writ petition under Article 226 of the Constitution of India had in depth dealt with each and every provisions of Code of 2006 and also the various decisions rendered by the Apex Court and had recorded a categorical finding that the writ petition against summary proceedings is not maintainable. However, coordinate Bench had carved out an exception in paragraph no. 40 of the said judgment and held that writ petition would be maintainable only in exceptional circumstances as mentioned therein. Relevant paragraph no. 40 is extracted hereasunder; "40. Having regard to the foregoing discussion the exceptions under which a writ petition may be entertained against orders passed in mutation proceedings would arise where : (i) the order or proceedings are wholly without jurisdiction; (ii) rights and title of the parties have already been decided by a competent court, and that has been varied in mutation proceedings; (iii) mutation has been directed not on the basis of possession or on the basis of some title deed, but after entering into questions relating to entitlement to succeed the property, touching the merits of the rival claims; (iv) rights have been created which are against provisions of any statute, or the entry itself confers a title by virtue of some statutory provision; (v) the orders have been obtained on the basis of fraud or misrepresentation of facts, or by fabricating documents; (vi) the order suffers from some patent jurisdictional error i.e. in cases where there is a lack of jurisdiction, excess of jurisdiction or abuse of jurisdiction; (vii) there has been a violation of principles of natural justice."

9. In the case in hand, it is an admitted fact that petitioners claims to have succeeded to the assets of one Nathu, who had executed a Will in favour of them. The said Will was questioned before the revenue authorities by one Champa Devi claiming to be the wife of deceased Nathu. The entire claim of petitioners was that Nathu had died issueless, while Champa Devi through valid documents proved before the revenue authorities that Nathu had not died issueless and he was married with her and, as such, she is entitled to succeed his assets. The revenue authorities disbelieving the Will had turned down the application for mutation.

10. Present writ petition filed assailing the orders passed by the revenue authorities needs no interference as it does not reflects any of the exceptions as carved out by the judgment rendered by coordinate Bench of this Court in case of Smt. Kalawati (Supra) and petitioner has a remedy of filing a declaratory suit or by getting the letter of administration of registered Will, as claimed by him.

11. Writ petition filed under Article 226 of the Constitution of India assailing the orders passed by the revenue authorities is not maintainable. Writ petition is misconceived and stands dismissed. Order Date :- 10.7.2025 Shekhar SHASHI SHEKHAR PANDEY High Court of Judicature at Allahabad

4. Sri Prabhuti Kant Tripathi, learned ACSC, has seriously opposed the writ petition and submitted that the action of respondent revenue authorities rejecting the mutation application cannot be questioned in proceedings under Article 226 of the Constitution of India and the matter is covered by the decision of coordinate Bench of this Court rendered in case of Smt. Kalawati Vs. Board of Revenue and others, Writ-B No. 295 of 2022 decided on 5.4.2022.

5. I have heard the learned counsel for respective parties and perused the material on record. The preliminary question raised by learned ACSC needs to be addressed first as to the maintainability of writ petition under Article 226 of the Constitution of India as the matter arises of summary proceedings under Sections 33/34 of Code of 2006.

6. It is not in dispute that proceedings for mutation is a summary proceedings. The very purpose of mutation is to record the name of the person claiming to have succeeded either by succession under Section 33 or by transfer of property either in case of sale or by family settlement under Section 34. The necessary orders are passed under Section 35. The mutation is for the fiscal purpose i.e. for realization of revenue and no title is decided through mutation proceedings.

7. Section 39 of Code of 2006 specifically provides the leverage to the party claiming title for filing declaratory suit under Section 144 of Code of 2006. It is an enabling provision which enables the party to get his/her title declared in the said proceedings. The very purpose of proceedings under Sections 33/34/35 of Code of 2006 is only to get the name mutated in revenue records. It is constantly held by various Courts as well as Apex Court in catena of judgments that the purpose of mutation is only for the realization of revenue and no right or title is created in favour of a person in whose favour the name is recorded.

8. The coordinate Bench of this Court in case of Smt. Kalawati (Supra) while dealing with the issue as to the maintainability of writ petition under Article 226 of the Constitution of India had in depth dealt with each and every provisions of Code of 2006 and also the various decisions rendered by the Apex Court and had recorded a categorical finding that the writ petition against summary proceedings is not maintainable. However, coordinate Bench had carved out an exception in paragraph no. 40 of the said judgment and held that writ petition would be maintainable only in exceptional circumstances as mentioned therein. Relevant paragraph no. 40 is extracted hereasunder; "40. Having regard to the foregoing discussion the exceptions under which a writ petition may be entertained against orders passed in mutation proceedings would arise where : (i) the order or proceedings are wholly without jurisdiction; (ii) rights and title of the parties have already been decided by a competent court, and that has been varied in mutation proceedings; (iii) mutation has been directed not on the basis of possession or on the basis of some title deed, but after entering into questions relating to entitlement to succeed the property, touching the merits of the rival claims; (iv) rights have been created which are against provisions of any statute, or the entry itself confers a title by virtue of some statutory provision; (v) the orders have been obtained on the basis of fraud or misrepresentation of facts, or by fabricating documents; (vi) the order suffers from some patent jurisdictional error i.e. in cases where there is a lack of jurisdiction, excess of jurisdiction or abuse of jurisdiction; (vii) there has been a violation of principles of natural justice."

9. In the case in hand, it is an admitted fact that petitioners claims to have succeeded to the assets of one Nathu, who had executed a Will in favour of them. The said Will was questioned before the revenue authorities by one Champa Devi claiming to be the wife of deceased Nathu. The entire claim of petitioners was that Nathu had died issueless, while Champa Devi through valid documents proved before the revenue authorities that Nathu had not died issueless and he was married with her and, as such, she is entitled to succeed his assets. The revenue authorities disbelieving the Will had turned down the application for mutation.

10. Present writ petition filed assailing the orders passed by the revenue authorities needs no interference as it does not reflects any of the exceptions as carved out by the judgment rendered by coordinate Bench of this Court in case of Smt. Kalawati (Supra) and petitioner has a remedy of filing a declaratory suit or by getting the letter of administration of registered Will, as claimed by him.

11. Writ petition filed under Article 226 of the Constitution of India assailing the orders passed by the revenue authorities is not maintainable. Writ petition is misconceived and stands dismissed. Order Date :- 10.7.2025 Shekhar SHASHI SHEKHAR PANDEY High Court of Judicature at Allahabad