In the case of Jaipal v. Board of Revenue, U.P., Allahabad & Ors

1. Heard Shri V.S. Trivedi holding brief of Shri Ramesh Chandra Gupta, learned counsel for the petitioner and learned Standing counsel on behalf of respondents no. 1 to 3. In view of proposed order, notice to private respondent is dispensed with.

2. By means of present writ petition, the petitioners have prayed for quashing the impugned order dated 13.02.2025, 2.05.2023, 6.8.2021 an 1.12.2021 passe by the opposite parties no.1, 2 and 3 as contained in Annexures No. 1, 2, 3 and 4 to this writ petition and also prayed for a direction in the nature of mandamus commanding the opposite parties not to create disturbance in peaceful possession of the petitioners in pursuance of impugned orders contained in Annexure Nos. 1 to 4 to this writ petition.

3. Dispute in the present case is with regard to the rival claims being made by the parties claiming themselves to be the legal heirs of Abbas Mirza who was the recorded tenure holder of Gata No. 379/1 area 0.400 hectare and 379/2 area 0.300 hectare are changed as new Gata No. 824/0.4000, 825/0.300 (area 0.700).

4. It has been submitted that the aforesaid land was purchased by one Ishrat Ali son of Kifayat Ali, Haider Mirza son of Abbas Mirza on 29.4.1964, subsequently it is alleged that one Kaneez Bano alleging herself as Shahar Bano, moved an application for substitution, claiming herself to be the legal heirs of Abbas Mirza and application of private respondent was allowed by the Consolidation Officer, against which the petitioners had preferred Appeals No. 555/ 2021541043000833 and 338/2022541043000016 before the Settlement Officer of Consolidation, Lakhimpur Kheri, which appeals were rejected on 24.5.2023, against which, revision was preferred before the Deputy Director Consolidation, Lakhimpur Kheri, which has also been rejected on 13.02.2025 and the aforesaid orders have been challenged in the present writ petition.

5. The question of the maintainability of a writ petition against orders passed in mutation proceedings has come up before this Court earlier and it has consistently been held that normally the High Court in exercise of its discretionary jurisdiction does not entertain writ petitions against such orders which arise out of summary proceedings.

6. In the case of Jaipal Vs. Board of Revenue, U.P., Allahabad & Ors.7 notice was taken of the consistent practice of this Court not to interfere with the orders made by the Board of Revenue in cases in which the only question at issue was whether the name of the petitioners should be entered in the record of rights. The observations made in the judgment in this regard are as follows:- "3. ...It has however been the consistent practice of this Court not to interfere with orders made by the Board of Revenue in cases in which the only question at issue is whether the name of the petitioner should be entered in the record of rights. That record is primarily maintained for revenue purposes and an entry therein has reference only to possession. Such an entry does not ordinarily confer upon the person in whose favour it is made any title to the property in question..."

7. The question with regard to the maintainability of a writ petition arising out of mutation proceedings fell for consideration in the case of Sri Lal Bachan Vs. Board of Revenue, U.P., Lucknow & Ors.2 and it was held that the High Court does not entertain a writ petition under Article 226 of the Constitution of India for the reason that mutation proceedings are only summarily drawn on the basis of possession and the parties have a right to get the title adjudicated by regular suit. The observations made in the judgment are extracted below:- "11. This Court has consistently taken the view as is apparent from the decisions of this Court referred above that writ petition challenging the orders passed in mutation proceedings are not to be entertained. To my mind, apart from there being remedy of getting the title adjudicated in regular suit, there is one more reason for not entertaining such writ petition. The orders passed under Section 34 of the Act are only based on possession which do not determine the title of the parties. Even if this Court entertains the writ petition and decides the writ petition on merits, the orders passed in mutation proceedings will remain orders in summary proceedings and the orders passed in the proceedings will not finally determine the title of the parties."

8. A question would however arise as to whether any exception can be carved out to the aforesaid settled position with regard to non-interference in matters arising out of mutation proceedings in exercise of powers under writ jurisdiction, and if so what would the facts and circumstances under which a writ petition may be entertained in such matters.

9. In the case of Lal Bachan Vs. Board of Revenue, U.P. Lucknow and others 2, while taking the view that mutation proceedings are subject to adjudication of title by competent court, it was held that writ petition arising out of such proceedings cannot be held to be non-maintainable but such writ petition is not entertained due to reason that parties have right to get the title adjudicated by regular suit and the orders passed in mutation proceedings are summary in nature. In a situation where a challenge is raised to an order passed without jurisdiction, it was held that the writ petition can be entertained despite availability of alternative remedy. Referring to the earlier decision in the case of Jaipal, it was stated as follows :- "18. In view of the above discussions, it is clear that although the writ petition arising out of the mutation proceedings cannot be held to be non- maintainable but this Court does not entertain the writ petition under Article 226 of the Constitution due to reason that parties have right to get the title adjudicated by regular suit and the orders passed in mutation proceedings are summary in nature."

10. Section 39 of the Code, as referred to above, is being extracted below :- "39. Certain orders of Revenue Officers not to debar a suit :- No order passed by a Revenue Inspector under Section 33, or by a Tehsildar under sub-section (1) of Section 35 or by a Sub-Divisional Officer under sub- section (3) of Section 38 or by a Commissioner under sub-section (2) of Section 35 or sub-section (4) of Section 38 shall debar any person from establishing his rights to the land by means of a suit under Section 144."

11. The aforementioned section clearly provides that no person shall be debarred from establishing his rights to the land by means of a declaratory suit under Section 144, irrespective of the fact that an order has been passed by; (i) a Revenue Inspector under Section 33 (mutation in case of succession), or (ii) a Tehsildar under sub-section (1) of Section 35 (mutation in case of transfer or succession), or (iii) a Sub-Divisional Officer under sub-section (3) of Section 38 (correction of error or omission), or (iv) a Commissioner under sub-section (4) of Section 38 (correction of error or omission).

12. Section 39 which expressly provides that the orders passed by revenue officers in cases of a mutation and correction of revenue entries would not debar filing of a declaratory suit, is a substantive provision, and corresponds to a similar provision contained under Section 40-A of the U.P. Land Revenue, 1901 (now repealed).

13. Accordingly, the dispute as raised before this Court is with regard to the correction in the revenue record, for which the remedy is available to the petitioner is for filing an appropriate suit before the competent court considering the declaration of the same and not a proceeding under Article 226 of the Constitution of India.

14. It is provided that in case the petitioners file a suit before the competent court within next three weeks, status-quo with regard to the said land shall be maintained which shall be subject to the decision on the application under Order 39 Rule (2) of the Code of Civil Procedure made by the petitioners and till the appropriate order is passed, status-quo shall be maintained on the said land.

15. With the aforesaid observations, the instant petition is disposed of. . (Alok Mathur, J.) Order Date :- 15.7.2025 Muk MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Shri V.S. Trivedi holding brief of Shri Ramesh Chandra Gupta, learned counsel for the petitioner and learned Standing counsel on behalf of respondents no. 1 to 3. In view of proposed order, notice to private respondent is dispensed with.

2. By means of present writ petition, the petitioners have prayed for quashing the impugned order dated 13.02.2025, 2.05.2023, 6.8.2021 an 1.12.2021 passe by the opposite parties no.1, 2 and 3 as contained in Annexures No. 1, 2, 3 and 4 to this writ petition and also prayed for a direction in the nature of mandamus commanding the opposite parties not to create disturbance in peaceful possession of the petitioners in pursuance of impugned orders contained in Annexure Nos. 1 to 4 to this writ petition.

3. Dispute in the present case is with regard to the rival claims being made by the parties claiming themselves to be the legal heirs of Abbas Mirza who was the recorded tenure holder of Gata No. 379/1 area 0.400 hectare and 379/2 area 0.300 hectare are changed as new Gata No. 824/0.4000, 825/0.300 (area 0.700).

4. It has been submitted that the aforesaid land was purchased by one Ishrat Ali son of Kifayat Ali, Haider Mirza son of Abbas Mirza on 29.4.1964, subsequently it is alleged that one Kaneez Bano alleging herself as Shahar Bano, moved an application for substitution, claiming herself to be the legal heirs of Abbas Mirza and application of private respondent was allowed by the Consolidation Officer, against which the petitioners had preferred Appeals No. 555/ 2021541043000833 and 338/2022541043000016 before the Settlement Officer of Consolidation, Lakhimpur Kheri, which appeals were rejected on 24.5.2023, against which, revision was preferred before the Deputy Director Consolidation, Lakhimpur Kheri, which has also been rejected on 13.02.2025 and the aforesaid orders have been challenged in the present writ petition.

5. The question of the maintainability of a writ petition against orders passed in mutation proceedings has come up before this Court earlier and it has consistently been held that normally the High Court in exercise of its discretionary jurisdiction does not entertain writ petitions against such orders which arise out of summary proceedings.

6. In the case of Jaipal Vs. Board of Revenue, U.P., Allahabad & Ors.7 notice was taken of the consistent practice of this Court not to interfere with the orders made by the Board of Revenue in cases in which the only question at issue was whether the name of the petitioners should be entered in the record of rights. The observations made in the judgment in this regard are as follows:- "3. ...It has however been the consistent practice of this Court not to interfere with orders made by the Board of Revenue in cases in which the only question at issue is whether the name of the petitioner should be entered in the record of rights. That record is primarily maintained for revenue purposes and an entry therein has reference only to possession. Such an entry does not ordinarily confer upon the person in whose favour it is made any title to the property in question..."

7. The question with regard to the maintainability of a writ petition arising out of mutation proceedings fell for consideration in the case of Sri Lal Bachan Vs. Board of Revenue, U.P., Lucknow & Ors.2 and it was held that the High Court does not entertain a writ petition under Article 226 of the Constitution of India for the reason that mutation proceedings are only summarily drawn on the basis of possession and the parties have a right to get the title adjudicated by regular suit. The observations made in the judgment are extracted below:- "11. This Court has consistently taken the view as is apparent from the decisions of this Court referred above that writ petition challenging the orders passed in mutation proceedings are not to be entertained. To my mind, apart from there being remedy of getting the title adjudicated in regular suit, there is one more reason for not entertaining such writ petition. The orders passed under Section 34 of the Act are only based on possession which do not determine the title of the parties. Even if this Court entertains the writ petition and decides the writ petition on merits, the orders passed in mutation proceedings will remain orders in summary proceedings and the orders passed in the proceedings will not finally determine the title of the parties."

8. A question would however arise as to whether any exception can be carved out to the aforesaid settled position with regard to non-interference in matters arising out of mutation proceedings in exercise of powers under writ jurisdiction, and if so what would the facts and circumstances under which a writ petition may be entertained in such matters.

9. In the case of Lal Bachan Vs. Board of Revenue, U.P. Lucknow and others 2, while taking the view that mutation proceedings are subject to adjudication of title by competent court, it was held that writ petition arising out of such proceedings cannot be held to be non-maintainable but such writ petition is not entertained due to reason that parties have right to get the title adjudicated by regular suit and the orders passed in mutation proceedings are summary in nature. In a situation where a challenge is raised to an order passed without jurisdiction, it was held that the writ petition can be entertained despite availability of alternative remedy. Referring to the earlier decision in the case of Jaipal, it was stated as follows :- "18. In view of the above discussions, it is clear that although the writ petition arising out of the mutation proceedings cannot be held to be non- maintainable but this Court does not entertain the writ petition under Article 226 of the Constitution due to reason that parties have right to get the title adjudicated by regular suit and the orders passed in mutation proceedings are summary in nature."

10. Section 39 of the Code, as referred to above, is being extracted below :- "39. Certain orders of Revenue Officers not to debar a suit :- No order passed by a Revenue Inspector under Section 33, or by a Tehsildar under sub-section (1) of Section 35 or by a Sub-Divisional Officer under sub- section (3) of Section 38 or by a Commissioner under sub-section (2) of Section 35 or sub-section (4) of Section 38 shall debar any person from establishing his rights to the land by means of a suit under Section 144."

11. The aforementioned section clearly provides that no person shall be debarred from establishing his rights to the land by means of a declaratory suit under Section 144, irrespective of the fact that an order has been passed by; (i) a Revenue Inspector under Section 33 (mutation in case of succession), or (ii) a Tehsildar under sub-section (1) of Section 35 (mutation in case of transfer or succession), or (iii) a Sub-Divisional Officer under sub-section (3) of Section 38 (correction of error or omission), or (iv) a Commissioner under sub-section (4) of Section 38 (correction of error or omission).

12. Section 39 which expressly provides that the orders passed by revenue officers in cases of a mutation and correction of revenue entries would not debar filing of a declaratory suit, is a substantive provision, and corresponds to a similar provision contained under Section 40-A of the U.P. Land Revenue, 1901 (now repealed).

13. Accordingly, the dispute as raised before this Court is with regard to the correction in the revenue record, for which the remedy is available to the petitioner is for filing an appropriate suit before the competent court considering the declaration of the same and not a proceeding under Article 226 of the Constitution of India.

14. It is provided that in case the petitioners file a suit before the competent court within next three weeks, status-quo with regard to the said land shall be maintained which shall be subject to the decision on the application under Order 39 Rule (2) of the Code of Civil Procedure made by the petitioners and till the appropriate order is passed, status-quo shall be maintained on the said land.

15. With the aforesaid observations, the instant petition is disposed of. . (Alok Mathur, J.) Order Date :- 15.7.2025 Muk MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench