Heard Shri Pankaj Kumar Pandey, learned counsel for the petitioners and learned Additional Chief Standing Counsel for the State.
By means of this writ petition the petitioners have challenged the order dated 05.02.2018, 28.02.2004 and 25.02.2019 passed by the Tehsildar under Section 34 of the U.P. Land Revenue Act, 1901, order dated 28.02.2004 passed by the Additional Commissioner in exercise of his revisional power setting-aside the Appellate order and remanding the matter back to the Tehsdilar as also the order of the Board of Revenue dated 25.02.2019 arising out of the said proceedings.
From a perusal of the impugned orders what comes out is that one Matai is said to have executed and registered a Will of his holdings in favour of his nephews, although, his wife Maharaj Dei was alive. The Tehsildar based on a judgment passed by the Munsif Court in civil proceedings held the Will to be proved of which the petitioners who were the nephews of Matai being sons of Lila the brother of Matai were the beneficiaries. The other brother of Matai was Jaijairam who was contesting the proceedings. The order of the Tehsildar was set-aside in Appeal against which Jaijairam filed a revision. The Revisional Court's order dated 28.02.2004 is also under challenge before this Court. On a perusal of the said order the Court finds that specific finding has been recorded therein that there was ample evidence to establish that Maharaj Dei was the wife of Matai and the fact that there was no mention in the Will of his wife and that she had been excluded, although, she would have been in the line of statutory succession, raised a doubt about the validity of the Will. The Revisional Court also opined that the Tehsildar while passing the mutation order dated 12.01.1990 which was affirmed in Appeal on 04.11.1991 by the S.D.M. had relied upon the judgment dated 28.10.1988 passed by the Munsif Court in civil proceedings ignoring the fact that the said judgment had been set-aside in Appeal. Consequently, the Revisional Court set-aside the said orders and remanded the matter back to the Tehsildar for decision afresh vide order dated 28.02.2004.
The learned counsel for the petitioners informs that against this order three revisions were filed before the Board of Revenue wherein the order dated 28.02.2004 was stayed on 31.01.2006. In the meantime as stated by the learned counsel for the petitioners inspite of the stay order dated 31.01.2006 the Tehsildar proceeded to reconsider the matter in the light of the revisional Court's order dated 28.02.2004 and accordingly decided the proceedings in favour of Jaijairam the other brother of Matai on 05.02.2008. This order dated 05.02.2008 was challenged before the Board of Revenue by means of another revision which was allowed on 31.01.2018 and the order dated 05.02.2008 was set-aside. Against this the private opposite parties filed a writ petition bearing No. 10973(M/S) of 2018 before this Court which in-turn was disposed of on 16.04.2018 in the following terms:-
"Heard Sri Manoj Kumar Dwivedi learned counsel for the petitioners and Sri Upendra Singh learned Standing Counsel for the State.
The dispute seems to have arisen in the light of three orders passed by the Tehsildar on 12.1.1990 whereby the names of predecessor in interest of opposite party nos. 5 to 19 were recorded in the revenue record through mutation proceedings on the basis of a Will deed alleged to have been executed by one Matai in favour of Narayan, Rewati and Devi Dayal whose names are mentioned in para 4 of this writ petition.
It appears that one Jai Jai Ram being the real brother of Matai filed appeals before the Sub-divisional Magistrate against the said order passed under Section 219 of the Land Revenue Act. The appeals so filed by Jai Jai Ram were rejected on the same date by orders dated 4.11.1991 by the court of Sub-divisional Officer and thus three revisions came to be filed under Section 219 of Land Revenue Act before the court of Commissioner, Lucknow Division, Lucknow.
Since the Will deed relates to three different properties, as such, three separate appeals/revisions arising out of the orders dated 12.1.1990 and 4.11.1991 were filed before the respective courts. The court of Commissioner after hearing the parties against the impugned orders dated 12.1.1990 and 4.11.1991 allowed the revisions and remitted the matter back to the court of Tehsildar for fresh adjudication and verification of the thumb impression put on the Will deed, which was relied upon by the Predecessor in interest of opposite party nos. 5 to 19. Feeling aggrieved against the judgment and order passed by the court of Commissioner on 28.2.2004 in the respective revisions filed under Section 219 of Land Revenue Act, the predecessor in interest of opposite party nos. 5 to 19 filed revisions before the Board of Revenue under Section 219 of Land Revenue Act which were registered as revision nos. 162/2005, 163/2005 and 164/2005. The revisions appear to have come up for admission on 31.1.2006 when the following order was passed :-
"Heard the counsel for the revisionist and perused the impugned order dated 28.2.2004 notice be issued fix on 9.3.2006 for hearing on admission. Till no party will sell off the land in dispute and proceedings in the lower court will remain stayed".
Once the remission proceedings were stayed by the Board of Revenue, there was no occasion for the court of Tehsildar to have proceeded with the matter in compliance of the order passed by the court of commissioner on 28.2.2004.
Learned counsel for the petitioner has pointed out that the order passed by the Board of Revenue on 31.1.2006 was not communicated either to the court concerned or the parties, as such, the proceedings before the court of Tehsildar commenced and culminated by an order passed on 8.1.2008 under Section 34 of Land Revenue Act.
It is on the basis of this order passed by the court of Tehsildar on 8.1.2008 that the names of the petitioner came to be entered into the revenue record by an order passed on 5.2.2008.
As soon as the orders dated 8.1.2008 and 5.2.2008 came to the notice of opposite party nos. 5 to 19, it appears that they assailed the said orders by invoking the revisional jurisdiction of the Board of Revenue under Section 219 of Land Revenue Act. The revision so filed was registered as revision no. 3839/2007-2008. The said revision has been allowed by means of the impugned order dated 31.1.2018 on the ground that the court of Tehsildar could not proceed with the proceedings arising out of the judgment/order passed by the court of Commissioner on 28.2.2004 in the wake of order dated 31.1.2006.
The order passed by the Board of Revenue on 31.1.2018 according to the learned counsel for the petitioner was ex-parte and the same was passed without any notice to the petitioner. On the contrary, it is argued that the court of Tehsildar could not overrule the order dated 31.1.2006 and that too when the remand proceedings were stayed.
The petitioners have made an application for recall of the order dated 31.1.2018 whereas, the opposite parties no. 5 to 19 are pursuing the revisions arising out of order dated 28.2.2004.
The position as it operates today is that the revisions arising out of the order dated 28.2.2004 i.e. revision nos. 162 of 2005, 163 of 2005 and 164 of 2005 are pending before the Board of Revenue and recall application arising out of the order dated 31.1.2018 is also alleged to be pending.
In order to avoid multiplicity of the proceedings, it is appropriate that the Board of Revenue may proceed to hear revision nos. 162 of 2005, 163 of 2005 and 164 of 2005 along with the recall application filed by the petitioner arising out of the order dated 31.1.2018 but while doing so the Board of Revenue shall record a specific finding on the aspect as to whether the order dated 31.1.2006 passed in the revisions was at all communicated to the court concerned and the notice of the revisions was served on the parties concerned or not. The Board of Revenue shall decide the proceedings expeditiously and not later than a period of six months from the date a certified copy of this order is filed.
The fate of recall application filed by the petitioner shall depend upon the outcome of the revision nos. 162/2005, 163/2005 and 164/2005.
The petition is accordingly disposed of."
The matter was remanded back to the Board of Revenue for a decision afresh in all the pending revisions, meaning thereby, the three revisions which were pending earlier and the fourth revision against the order dated 05.02.2008. It is these revisions which have now been decided by the order of the Board of Revenue dated 25.02.2019 which has also been challenged before this Court. The Board of Revenue while deciding the revisions has categorically held that the interim order dated 31.01.2006 was never brought to the notice of the Tehsildar by the revisionists before the Board of Revenue, who are the petitioners herein, therefore, the Tehsildar can not be faulted for having proceeded to decide the matter in terms of the Revisional Court's order dated 28.02.2004. As regards merits the Board of Revenue has affirmed the finding of the Courts below that the thumb impression on the Will was not the same as on documents where Matai had put his thumb impression and therefore, had disapproved the veracity and validity of the Will, along with affirming the other findings recorded in the order dated 05.02.2008 and the Revisional Court's order dated 28.02.2004. The Board of Revenue has affirmed the orders of the Courts below by which mutation has been ordered on the basis of statutory succession under Section 171 and not the Will.
Considering the issues involved which are factual in nature and the findings recorded in respect thereof which are based on appreciation of evidence and also considering the nature of the proceedings for mutation under Section 34 which are summery proceedings and are always subject to regular suit proceedings which can be initiated by any of the aggrieved parties, the writ Court under Article 226 of the Constitution of India does not find any valid ground for interference in the matter at the behest of the petitioners as the observations/findings and reasoning given do not suffer from any error so far as mutation proceedings are concerned.
If the petitioners are aggrieved they may initiate regular suit proceedings, if otherwise permissible in law uninfluenced by any observation made hereinabove.
Subject to the above, the writ petition is dismissed.
Order Date :- 30.9.2019 R.K.P.