Santosh Kumar Awasthi v. Vinod Kumar Awasthi and Others

1. Heard Sri Sukhveer Singh, learned counsel for the petitioner as well as learned Standing Counsel for respondent nos. 1 to 4.

2. In the light of proposed order notice to private respondents is dispensed with.

3. Present proceedings have arisen out of application under Section 34 of the U.P. Revenue Code, 2006, which was preferred by the private respondents before the Consolidation Officer, which application was allowed by means of order dated 05.01.2024, against which the petitioner has filed appeal before the Sub Divisional Magistrate which appeal was dismissed by means of order dated 04.01.2025. Against order dated petitioner preferred revision before the 04.01.2025, Commissioner, Lucknow Division, Lucknow which was also rejected by order dated 21.05.2025.

4. The dispute in the present case pertains to the fact as to who would be entitled to succeed the property of late Ram Kumar. The petitioner claims the property of Ram Kumar on the basis of succession and the private respondents have claimed the said property on the basis of will. Learned counsel for the petitioner has fairly submitted that aforesaid dispute is already pending consideration before the Civil Judge (Junior Division), South, Unnao being Suit No. 351 of 2018 - Santosh Kumar Awasthi Vs. Vinod Kumar Awasthi and Others.

5. At this stage preliminary objection has been raised by learned Standing Counsel that in the matters arising out of Section 34 of the U.P. Revenue Code, 2006, writ petition under Article 226 of the Constitution of India would not be maintainable and appropriate remedy is to file a suit for declaration before the appropriate Civil Court of competent jurisdiction. He submits that once the dispute is already pending before the Civil Court, then the petitioner would have waited for the outcome of the suit proceedings and submits that the decree so passed by the Civil Court would be binding upon the revenue authorities and in any view of the matter, submits that mutation proceedings are only limited to correct the revenue records as to who are the persons who are entitled to pay the revenue and does not decide the question of title over the land.

6. 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.

7. In the case of Jaipal Vs. Board of Revenue, U.P., Allahabad & Ors. AIR 1957 ALL 205, 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 petitioner 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…"

8. 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., 2002 (93) RD 6, 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."

9. Reiterating a similar view in the case of Bindeshwari Vs. Board of Revenue & Ors., 20025 (1) AWC 498, it was stated that mutation proceedings do not adjudicate the rights of parties and orders passed in the said proceedings are always subject to adjudication by the competent court and therefore a writ petition against an order in mutation proceedings would not be entertainable. It was observed as follows:- "11. ...The present writ petition arising out of the summary proceeding of mutation under Section 34 of U.P. Land Revenue Act, cannot be entertained under Article 226 of the Constitution of India. The mutation proceedings do not adjudicate the rights of the parties and orders passed in the mutation are always subject to adjudication by the competent court."

10. The settled legal position that orders of mutation are passed on the basis of possession and since no substantive rights of the parties are decided, ordinarily a writ petition would not be entertainable against such orders unless the same are found to be wholly without jurisdiction or have the effect of rendering findings which are contrary to title already decided by a competent court, was reiterated in the case of Vinod Kumar Rajbhar Vs. State of U.P. and others, 2012 (1) ADJ 792.

11. Taking note of the nature and scope of mutation proceedings which are summary in nature and also the fact that orders in such proceedings are passed on the basis of possession of the parties and no substantive rights are decided, this Court in Buddh Pal Singh Vs. State of U.P. & Ors., 2012 (5) ADJ 266, restated the principle that ordinarily a writ petition in respect of orders passed in mutation proceedings is not maintainable. It was observed as follows:- "7. It is equally settled that the orders for mutation are passed on the basis of the possession of the parties and since no substantive rights of the parties are decided in mutation proceedings, ordinarily a writ petition is not maintainable in respect of orders passed in mutation proceedings unless found to be totally without jurisdiction or contrary to the title already decided by the competent court. The parties are always free to get their rights in respect of the disputed land adjudicated by competent court."

12. The proposition that mutation entries in revenue records do not create or extinguish title over land nor such entries have any presumptive value on title has been restated in a recent decision

1. Heard Sri Sukhveer Singh, learned counsel for the petitioner as well as learned Standing Counsel for respondent nos. 1 to 4.

2. In the light of proposed order notice to private respondents is dispensed with.

3. Present proceedings have arisen out of application under Section 34 of the U.P. Revenue Code, 2006, which was preferred by the private respondents before the Consolidation Officer, which application was allowed by means of order dated 05.01.2024, against which the petitioner has filed appeal before the Sub Divisional Magistrate which appeal was dismissed by means of order dated 04.01.2025. Against order dated petitioner preferred revision before the 04.01.2025, Commissioner, Lucknow Division, Lucknow which was also rejected by order dated 21.05.2025.

4. The dispute in the present case pertains to the fact as to who would be entitled to succeed the property of late Ram Kumar. The petitioner claims the property of Ram Kumar on the basis of succession and the private respondents have claimed the said property on the basis of will. Learned counsel for the petitioner has fairly submitted that aforesaid dispute is already pending consideration before the Civil Judge (Junior Division), South, Unnao being Suit No. 351 of 2018 - Santosh Kumar Awasthi Vs. Vinod Kumar Awasthi and Others.

5. At this stage preliminary objection has been raised by learned Standing Counsel that in the matters arising out of Section 34 of the U.P. Revenue Code, 2006, writ petition under Article 226 of the Constitution of India would not be maintainable and appropriate remedy is to file a suit for declaration before the appropriate Civil Court of competent jurisdiction. He submits that once the dispute is already pending before the Civil Court, then the petitioner would have waited for the outcome of the suit proceedings and submits that the decree so passed by the Civil Court would be binding upon the revenue authorities and in any view of the matter, submits that mutation proceedings are only limited to correct the revenue records as to who are the persons who are entitled to pay the revenue and does not decide the question of title over the land.

6. 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.

7. In the case of Jaipal Vs. Board of Revenue, U.P., Allahabad & Ors. AIR 1957 ALL 205, 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 petitioner 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…"

8. 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., 2002 (93) RD 6, 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."

9. Reiterating a similar view in the case of Bindeshwari Vs. Board of Revenue & Ors., 20025 (1) AWC 498, it was stated that mutation proceedings do not adjudicate the rights of parties and orders passed in the said proceedings are always subject to adjudication by the competent court and therefore a writ petition against an order in mutation proceedings would not be entertainable. It was observed as follows:- "11. ...The present writ petition arising out of the summary proceeding of mutation under Section 34 of U.P. Land Revenue Act, cannot be entertained under Article 226 of the Constitution of India. The mutation proceedings do not adjudicate the rights of the parties and orders passed in the mutation are always subject to adjudication by the competent court."

10. The settled legal position that orders of mutation are passed on the basis of possession and since no substantive rights of the parties are decided, ordinarily a writ petition would not be entertainable against such orders unless the same are found to be wholly without jurisdiction or have the effect of rendering findings which are contrary to title already decided by a competent court, was reiterated in the case of Vinod Kumar Rajbhar Vs. State of U.P. and others, 2012 (1) ADJ 792.

11. Taking note of the nature and scope of mutation proceedings which are summary in nature and also the fact that orders in such proceedings are passed on the basis of possession of the parties and no substantive rights are decided, this Court in Buddh Pal Singh Vs. State of U.P. & Ors., 2012 (5) ADJ 266, restated the principle that ordinarily a writ petition in respect of orders passed in mutation proceedings is not maintainable. It was observed as follows:- "7. It is equally settled that the orders for mutation are passed on the basis of the possession of the parties and since no substantive rights of the parties are decided in mutation proceedings, ordinarily a writ petition is not maintainable in respect of orders passed in mutation proceedings unless found to be totally without jurisdiction or contrary to the title already decided by the competent court. The parties are always free to get their rights in respect of the disputed land adjudicated by competent court."

12. The proposition that mutation entries in revenue records do not create or extinguish title over land nor such entries have any presumptive value on title has been restated in a recent decision