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BANSH NARAIN MISHRA AND ANOTHER versus ADDL. COMMISSIONER AND OTHERS

High Court of Judicature at Allahabad

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Bansh Narain Mishra And Another v. Addl. Commissioner And Others - WRIT - C No. 522 of 2001 [2005] RD-AH 859 (24 March 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

The petitioners have filed this writ petition for quashing the order dated 2.12.2000 passed by respondent no. 1 in Revision No. 207 of 2000 (Smt. Uttami Vs Bansh Narain and others) and for commanding respondent no. 2 to decide Appeal No. 42 of 2000 (Bansh Narain Mishra & others Vs Smt. Uttami & others) on merits within a time bound period to be fixed by this Court.  

The facts of the case, in brief, are that a registered sale-deed was executed by Sri Vashishta Mishra on 18.1.1975 regarding his share in agricultural land in Mauja Barapur and Jogapur in favour of his son petitioner no. 1 and Sri Vikramaditya Mishra, father of petitioner no. 2. On the basis of the aforesaid sale deed dated 18.1.1975 petitioner no. 1 and father of petitioner no. 2 applied for mutation and by order dated 7.10.1998 the Tehsildar passed order for mutation in favour of the petitioners on the basis of the sale-deed. On the basis of the mutation order of the Tehsildar the name of the petitioners have been recorded in the recent Khataunis of 1407 to 1412F. After Vashishtha Mishra died issueless and after the death of Vikramaditya the names of the petitioners have been recorded in the Khataunis of 1400 to 1405F relating to the land of Mahmoodpur. The mutation order passed in favour of the petitioners on 7.10.1998 is still operating and has not been set aside by the competent court, i.e., respondent no. 3. The Kutumb Register shows that Vashishtha died on 15.6.1996 and Vikramaditya died on 2.7.1997. The death certificate issued by the Gram Panchayat Secretary also shows that Vashishtha died on 15.6.1996. Respondent no. 5 applied for mutation on the ground that Vashishtha has executed a sale-deed on 9.8.1996 in her favour and petitioner no. 1 and the father of petitioner no. 2 filed objection that he had already died on 15.6.1996 and as such the sale deed is forged. Moreover the case of cancellation of sale-deed dated 9.8.1996 had already been filed before competent court and hence her application for mutation is liable to be rejected, but the Tehsildar Mohamadabad without considering the case of the petitioners allowed the application on 26.7.2000 when the sale-deed dated 9.8.1996 was already sub-judice and Vashishtha died on 15.6.1996. Mutation cases nos. 71, 72 and 97 relating to the land of three villages, i.e., Jogapur, Sarai Bashiruddinpur and Mohammadabad have been filed. The petitioners filed an appeal challenging the impugned order dated 26.7.2000 and respondent no. 2 by order dated 11.8.2000 stayed the operation of the order dated 26.7.2000 fixing 21.8.2000. The Revision No. 58 of 2000 (Smt. Shyam Vs Vashishtha and others) has been dismissed by respondent no. 1 holding that no revision is maintainable against the interlocutory order. Respondent no. 4 filed Revision No. 207 of 2000 (Uttami Vs Bansh Narain Mishra and others). The counsel for the petitioners raised objection that the Tehsildar had decided the mutation cases by a common order and three joint appeals have been filed challenging the order of the Tehsildar dated 26.7.2000 while one joint appeal is maintainable. It is stated that the revision has been filed only to linger on the proceedings of the case.

In the counter affidavit it has been stated that the Khatauni extracts of 1407 to 1412F are forged and according to remarks column one order dated 26.8.1997 was passed by the Revenue Inspector/Kanungo and other order dated 7.10.1998 was passed by the Naib-Tehsildar; that joint appeal is not maintainable; that the order dated 2.12.2000 is interlocutory order against which the writ petition is not maintainable; that the order dated 11.8.2000 is final order on the application of respondent no. 5 and against the final order a revision is maintainable.

The counsel for the petitioners contends that against the interlocutory order dated 11.8.2000 passed by respondent no. 2 objection and stay vacation application could be filed before the same court and not a revision before respondent no. 1. He further contends that against the common order passed on three mutation proceedings no separate appeal lies and thus the finding of the court below that one joint appeal is not maintainable is wholly illegal and arbitrary and the revision has been filed to delay the proceedings. He further contends that since no revision is maintainable against an interlocutory order, hence the order passed by respondent no. 1 staying the operation of respondent no. 2 and summoning the record is without jurisdiction.  

Mutation proceedings are summary proceedings in nature and writ does not lie against any order in mutation proceedings under Section 34 of the U.P. Land Revenue Act, 1901 as has been held in Bindeshwari Vs Board of Revenue, Lucknow & Others, 2002 (I) All C J 349. The same view has been taken in Smt. Rani Devi Vs Boards of Revenue, Lucknow & Others, 1999 (II) All C J 1569 and Narain Singh & another Vs Addl. Commissioner, Meerut & others, 1999 (90) R.D. 416.

In the case of Bindeshwari (supra) it has been held that the writ petition under Article 226 of the Constitution cannot be entertained against the order passed in the proceedings under Section 34 of the U.P. Land Revenue Act, 1901.  

In the case of Smt. Rani Devi (supra) it has been held that the writ petition under Article 226 of the Constitution against the order in proceedings for mutation is not maintainable.  

In the case of Narain Singh (supra) relying upon the decision rendered in Ram Bharose Lal Vs State of U.P. & Others, 1991 R.D. 72, it has been held: -

"8. Present petition arises out of proceedings under Section 34 of the U.P. Land Revenue Act. The said proceedings are summary in nature. In these proceedings rights and titles of the parties to the property in dispute are not decided. The orders passed in the said proceedings are not binding upon the parties or upon the courts in regular suits or proceedings. The said orders are subject to the decision by the courts on the regular side. The party aggrieved by the said order may file a regular suit before a court of the competent jurisdiction for declaration of his title, therefore, a writ petition, under Article 226 of the Constitution of India challenging the validity of the orders passed in the said proceedings, is legally not maintainable."  

Since rights and title of the parties are not decided under Section 34 of the U.P. Land Revenue Act, 1901 the orders passed thereunder are not binding on the courts in regular suits/proceedings and as such writ petition is not maintainable. Revision was also not maintainable and civil suit lies against an interim order in mutation proceedings, hence the validity of the Will cannot be seen or decided in mutation proceedings as has been held in the aforesaid decisions.

For the reasons stated above, this writ petition is dismissed. No order as to costs.                  

Dated: 24.3.2005

Rpk/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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