Smt. Shyama Devi vs Counsel for Petitioner(s)

1. Heard Sri Lalit Shukla, learned counsel for the petitioner, Sri Divesh Mishra, learned Sanding Counsel for respondent Nos.1 and 2 and Sri Durgesh Kumar Singh, learned counsel for respondent Nos.3 and 4.

2. By means of the present writ petition, the petitioner is challenging the orders dated 7.7.2003 and 24.12.2003, contained in Annexures 1 and 2 to the writ petition, passed by respondent Nos.2 and 1 respectively.

3. Factual matrix of the case is that after the death of husband of petitioner namely, Devta Deen, the petitioner, who is the mother of three daughters from the wedlock of Late Devta Deen, was appointed on compassionate ground in the sugar factory, Dariabad, District Barabanki. During his last days, Jageshwar, who is father of Devta Deen saw that since the petitioner had served her father-in-law and also looking to the harassing, exploiting and torturing conduct of the respondent Nos.3 and 4 towards the petitioner, he executed another Will deed dated 2.8.1999 by revoking his previous Will deed dated 22.8.1988. According to the Will deed dated 2.8.1999, the property was divided into three equal shares in between the petitioner and respondent Nos.3 and 4.

4. Jageshwar, who is father-in-law of the petitioner, expired on 8.8.1999 and after his death, the petitioner and respondent Nos.3 and 4 claimed their rights on all movable and immovable properties left by Jageshwar, 2 WRIC No. 1000641 of 2004 on the basis of their respective Wills by filing the applications under Section 34 of the U.P. Land Revenue Act before the Naib Tehsildar, Dalmau, District Raebareli. The applications were contested by the petitioner and respondent Nos.3 and 4 by filing detailed objections in the case.

5. The Naib Tehsildar, Dalmau, District Raebareli, after going through the entire record, material and evidences and recorded the oral as well as documentary evidences available on record, passed an order for mutating the names of the petitioner and respondent Nos.3 and 4 in equal shares in respect of the land in question mentioned hereinabove, vide judgment and order dated 6.6.2003.

6. The order dated 6.6.2003, passed by the Naib Tehsildar was challenged by respondent Nos.3 and 4 before the Sub Divisional Magistrate (respondent No.2), who after going through the record and hearing the matter, relied upon a list of documents, allowed the appeal filed by respondent Nos.3 and 4, vide order dated 7.7.2003, which was challenged before the Additional Commissioner, Lucknow Division, Lucknow by filing Revision No.2089 of 2002-2003, which has also been dismissed without considering the material available on record.

7. Submission of learned counsel for the petitioner is that while examining and noticing the documents referred in the impugned order, no finding was returned by the respondent No.2 and the order has been passed, which is wholly unjustified and unsustainable in law. Next submission is that the registered Will deed was executed in favour of respondent Nos.3 and 4 on 22.8.1988 and the subsequent Will deed was executed in favour of petitioner and respondent Nos.3 and 4 on 2.8.1999, revoking his earlier Will deed executed in favour of respondent Nos.3 and 4 on the basis of service rendered by the petitioner, therefore, ignoring the subsequent Will deed, the order passed by the respondent No.2 suffers from apparent illegality and is liable to be set aside.

8. Learned counsel for the petitioner submits that the revisional court has failed to take into consideration while recording the finding that the appellate court has decided the appeal without going through the 3 WRIC No. 1000641 of 2004 documents on record. The respondent No.2 has noticed he documents and without recording any finding, has proceeded to pass the order, therefore, the order is per se illegal and is liable to be set aside by this Court.

9. Per-contra, learned counsel for respondent Nos.3 and 4 placed reliance on the Will deed executed on 22.8.1988 and submits that the Will deed executed on 2.8.1999 is fake and fabricated, therefore, no reliance can be placed on the Will deed executed subsequent to the Will deed executed on

22.8.1988. Next submission is that the earlier Will deed which was executed in favour of respondent Nos.3 and 4 was registered Will deed and subsequent Will deed executed on 2.8.1999 executed in favour of petitioner and respondent Nos.3 and 4 is unregistered, therefore, no reliance can be placed on that. In support of his submission, he placed reliance upon a judgment rendered in the case of Vijay Shankar Vs. Additional Commissioner & others [2015(33) LCD 1073]. Relevant paragraphs 6 and 7 are being quoted as under :- "6. Circumstances mentioned by the courts below for dis-believing the Will cannot be said to be irrelevant or unfounded. Moreover, proceedings under Section 34 of the U.P.L.R. Act are summary in nature and they do not decide any matter finally. Rights in the land on the basis of Will can be established in regular revenue courts. This Court under Article 226 of the Constitution of India ordinarily does not interfere with the findings of the facts. In this case, court below have found that the Will does not appear to be genuine. This Court sees no good reason to interfere with the said finding.

7. It has been held in catena of decisions by this Court that proceedings under Section 34 of the U.P.L.R. Act are summary in nature and they do not confer any title finally as such writ petition against the orders passed in mutation proceedings is not maintainable."

10. Learned counsel for the respondent Nos.3 and 4 has lastly submitted that in case the impugned orders are not sustainable in law, the matter may be remanded back to the appellate authority to decide afresh.

11. Learned Standing Counsel also supported the argument advanced by 4 WRIC No. 1000641 of 2004 learned counsel for respondent Nos.3 and 4.

12. After having heard the rival submissions of learned counsel for the parties, I perused the material on record as well as the law report cited.

13. On perusal of Annexure-2 to the writ petition, it is transpired that the respondent No.2 has noticed the documents, which are numbered 1 to 11 and without recording any finding on the said document, proceeded to record that on the basis of evidence, remarriage of the petitioner is proved and possession over the land in dispute is shown in favour of respondent Nos.3 and 4 on the basis of Commissioner's report dated 30.5.2002 and on the said basis, he proceeded to pass the order. On its perusal, it is further evident that no finding has been recorded on the documents placed by the respondent Nos.3 and 4 and noticed in the order, therefore, due to non- recording of finding on the documents referred in the impugned order, the same is erroneous in nature and per se illegal.

14. It is further evident that the revisional court also approved the finding recorded by the appellate court. The revisional court has also not gone into the merits of the case and proceeded to approve the finding recorded by the appellate court, therefore, the order dated 24.12.2003 being unreasoned order, suffers from apparent illegality and is liable to be set aside by this Court.

15. The revisional court in a very cursory manner, without going through the finding recorded by the appellate court, has proceeded to pass the order. It has also failed to consider that on the documents referred in the impugned order, no finding has returned by the appellate court, therefore, the impugned orders are liable to be set aside.

16. The judgment in the case of Vijay Shankar (Supra) relied upon by respondents pertains to a summary proceeding of mutation under Section 34 of the U.P. Land Revenue Act and it is recorded that in regard to Will deed, it can be decided by the regular revenue court. The judgment relied upon does not apply to the facts and circumstances of the present case in view of the fact that the appellate court and the revisional court have decided the issue involved in the present case and not the revenue court. 5 WRIC No. 1000641 of 2004

17. In view of totality of facts and circumstances of the case and the reasons recorded above, the impugned orders dated 7.7.2003 and

24.12.2003, contained in Annexures 1 and 2 to the writ petition, passed by respondent Nos.2 and 1 respectively are hereby quashed. The writ petition succeeds and is allowed.

18. However, the Sub Divisional Magistrate, Dalmau, District Raebareli is directed to decide the appeal afresh and pass appropriate order in accordance with law within a period of six months from the date of production of a certified copy of this order. December 4, 2025 Gautam (Irshad Ali,J.) GAUTAM TECKCHANDANI High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Sri Lalit Shukla, learned counsel for the petitioner, Sri Divesh Mishra, learned Sanding Counsel for respondent Nos.1 and 2 and Sri Durgesh Kumar Singh, learned counsel for respondent Nos.3 and 4.

2. By means of the present writ petition, the petitioner is challenging the orders dated 7.7.2003 and 24.12.2003, contained in Annexures 1 and 2 to the writ petition, passed by respondent Nos.2 and 1 respectively.

3. Factual matrix of the case is that after the death of husband of petitioner namely, Devta Deen, the petitioner, who is the mother of three daughters from the wedlock of Late Devta Deen, was appointed on compassionate ground in the sugar factory, Dariabad, District Barabanki. During his last days, Jageshwar, who is father of Devta Deen saw that since the petitioner had served her father-in-law and also looking to the harassing, exploiting and torturing conduct of the respondent Nos.3 and 4 towards the petitioner, he executed another Will deed dated 2.8.1999 by revoking his previous Will deed dated 22.8.1988. According to the Will deed dated 2.8.1999, the property was divided into three equal shares in between the petitioner and respondent Nos.3 and 4.

4. Jageshwar, who is father-in-law of the petitioner, expired on 8.8.1999 and after his death, the petitioner and respondent Nos.3 and 4 claimed their rights on all movable and immovable properties left by Jageshwar, 2 WRIC No. 1000641 of 2004 on the basis of their respective Wills by filing the applications under Section 34 of the U.P. Land Revenue Act before the Naib Tehsildar, Dalmau, District Raebareli. The applications were contested by the petitioner and respondent Nos.3 and 4 by filing detailed objections in the case.

5. The Naib Tehsildar, Dalmau, District Raebareli, after going through the entire record, material and evidences and recorded the oral as well as documentary evidences available on record, passed an order for mutating the names of the petitioner and respondent Nos.3 and 4 in equal shares in respect of the land in question mentioned hereinabove, vide judgment and order dated 6.6.2003.

6. The order dated 6.6.2003, passed by the Naib Tehsildar was challenged by respondent Nos.3 and 4 before the Sub Divisional Magistrate (respondent No.2), who after going through the record and hearing the matter, relied upon a list of documents, allowed the appeal filed by respondent Nos.3 and 4, vide order dated 7.7.2003, which was challenged before the Additional Commissioner, Lucknow Division, Lucknow by filing Revision No.2089 of 2002-2003, which has also been dismissed without considering the material available on record.

7. Submission of learned counsel for the petitioner is that while examining and noticing the documents referred in the impugned order, no finding was returned by the respondent No.2 and the order has been passed, which is wholly unjustified and unsustainable in law. Next submission is that the registered Will deed was executed in favour of respondent Nos.3 and 4 on 22.8.1988 and the subsequent Will deed was executed in favour of petitioner and respondent Nos.3 and 4 on 2.8.1999, revoking his earlier Will deed executed in favour of respondent Nos.3 and 4 on the basis of service rendered by the petitioner, therefore, ignoring the subsequent Will deed, the order passed by the respondent No.2 suffers from apparent illegality and is liable to be set aside.

8. Learned counsel for the petitioner submits that the revisional court has failed to take into consideration while recording the finding that the appellate court has decided the appeal without going through the 3 WRIC No. 1000641 of 2004 documents on record. The respondent No.2 has noticed he documents and without recording any finding, has proceeded to pass the order, therefore, the order is per se illegal and is liable to be set aside by this Court.

9. Per-contra, learned counsel for respondent Nos.3 and 4 placed reliance on the Will deed executed on 22.8.1988 and submits that the Will deed executed on 2.8.1999 is fake and fabricated, therefore, no reliance can be placed on the Will deed executed subsequent to the Will deed executed on

22.8.1988. Next submission is that the earlier Will deed which was executed in favour of respondent Nos.3 and 4 was registered Will deed and subsequent Will deed executed on 2.8.1999 executed in favour of petitioner and respondent Nos.3 and 4 is unregistered, therefore, no reliance can be placed on that. In support of his submission, he placed reliance upon a judgment rendered in the case of Vijay Shankar Vs. Additional Commissioner & others [2015(33) LCD 1073]. Relevant paragraphs 6 and 7 are being quoted as under :- "6. Circumstances mentioned by the courts below for dis-believing the Will cannot be said to be irrelevant or unfounded. Moreover, proceedings under Section 34 of the U.P.L.R. Act are summary in nature and they do not decide any matter finally. Rights in the land on the basis of Will can be established in regular revenue courts. This Court under Article 226 of the Constitution of India ordinarily does not interfere with the findings of the facts. In this case, court below have found that the Will does not appear to be genuine. This Court sees no good reason to interfere with the said finding.

7. It has been held in catena of decisions by this Court that proceedings under Section 34 of the U.P.L.R. Act are summary in nature and they do not confer any title finally as such writ petition against the orders passed in mutation proceedings is not maintainable."

10. Learned counsel for the respondent Nos.3 and 4 has lastly submitted that in case the impugned orders are not sustainable in law, the matter may be remanded back to the appellate authority to decide afresh.

11. Learned Standing Counsel also supported the argument advanced by 4 WRIC No. 1000641 of 2004 learned counsel for respondent Nos.3 and 4.

12. After having heard the rival submissions of learned counsel for the parties, I perused the material on record as well as the law report cited.

13. On perusal of Annexure-2 to the writ petition, it is transpired that the respondent No.2 has noticed the documents, which are numbered 1 to 11 and without recording any finding on the said document, proceeded to record that on the basis of evidence, remarriage of the petitioner is proved and possession over the land in dispute is shown in favour of respondent Nos.3 and 4 on the basis of Commissioner's report dated 30.5.2002 and on the said basis, he proceeded to pass the order. On its perusal, it is further evident that no finding has been recorded on the documents placed by the respondent Nos.3 and 4 and noticed in the order, therefore, due to non- recording of finding on the documents referred in the impugned order, the same is erroneous in nature and per se illegal.

14. It is further evident that the revisional court also approved the finding recorded by the appellate court. The revisional court has also not gone into the merits of the case and proceeded to approve the finding recorded by the appellate court, therefore, the order dated 24.12.2003 being unreasoned order, suffers from apparent illegality and is liable to be set aside by this Court.

15. The revisional court in a very cursory manner, without going through the finding recorded by the appellate court, has proceeded to pass the order. It has also failed to consider that on the documents referred in the impugned order, no finding has returned by the appellate court, therefore, the impugned orders are liable to be set aside.

16. The judgment in the case of Vijay Shankar (Supra) relied upon by respondents pertains to a summary proceeding of mutation under Section 34 of the U.P. Land Revenue Act and it is recorded that in regard to Will deed, it can be decided by the regular revenue court. The judgment relied upon does not apply to the facts and circumstances of the present case in view of the fact that the appellate court and the revisional court have decided the issue involved in the present case and not the revenue court. 5 WRIC No. 1000641 of 2004

17. In view of totality of facts and circumstances of the case and the reasons recorded above, the impugned orders dated 7.7.2003 and

24.12.2003, contained in Annexures 1 and 2 to the writ petition, passed by respondent Nos.2 and 1 respectively are hereby quashed. The writ petition succeeds and is allowed.

18. However, the Sub Divisional Magistrate, Dalmau, District Raebareli is directed to decide the appeal afresh and pass appropriate order in accordance with law within a period of six months from the date of production of a certified copy of this order. December 4, 2025 Gautam (Irshad Ali,J.) GAUTAM TECKCHANDANI High Court of Judicature at Allahabad, Lucknow Bench