Heard the learned counsel for the petitioners, Shri Ratnesh Trivedi for opposite party no.3 and Shri V. P. Nag learned Standing Counsel for the State-respondent.
The petitioners have filed the rejoinder-affidavit which is taken on record.
By means of the instant petition, the petitioners assail the impugned order dated 19.01.2016 passed by the Tahsildar Bhund Shrinagar, District Kheri whereby in proceedings initiated under Section 34 of U.P. Land Revenue Act, mutation has been ordered in favour of the opposite party no.3. The petitioners thereafter preferred the recall application which has also been dismissed by means of order dated 01.3.2016 and thus the aforesaid two orders have been assailed in the petition.
The submission of the learned counsel for the petitioners is that the property undisputedly belonged to the original tenure holder namely Babu who is said to have expired in the year 1985. The case of the petitioners is that they are the only sons of Babu and after his death in the 1985, they got their names mutated on the basis of succession and an order was passed on 29.05.1987 on the basis of paka 11 and the petitioners names stood mutated.
It is further stated that only in the year 2010, the opposite party no.3 alleging himself to be the son of Babu instead of assailing the initial order dated 29.05.1987, preferred a fresh mutation application. In the said application, the petitioners were not impleaded as a party. However, on becoming aware, they filed their objection and contested the same. The Tahsildar after hearing the parties concerned by means of order dated 19.01.2016 set aside the order dated 29.05.1987 and directed the name of the opposite party no.3 to be mutated instead.
Shri Ratnesh Trivedi learned counsel appearing for the opposite party no.3 has raised a preliminary objection that against the mutation order dated 19.01.2016 in the first place the application for recall was not maintainable since the order was passed after hearing the parties on merit. It has further been submitted against the order the petitioners have an alternative and statutory remedy of filing the appeal under Sections 210/211 of the U.P. Land Revenue Act and as such the matter requires to be adjudicated before the authority concerned. It is further submitted by the learned counsel for the opposite party no.3 that the petitioners have manipulated the documents and got their names muted whereas they are not the son of Babu rather the petitioners are the son of Chandrabhan.
After hearing the parties and considering the issue involved which are contentious, at this stage, this Court is not inclined to intervene in the matter more so for the reason that generally this Court in exercise of power under Article 226 does not interfere in mutation proceedings as they are only summary in nature and do not decide the right of the parties which are required to be tested and adjudicated in a suit for declaration. The mutation proceedings are only for fiscal purposes and they are to abide by the order passed on the regular side.
Considering the aforesaid, this Court does not deem appropriate to exercise the power under Article 226 to interfere in the impugned order as the petitioners have an alternate remedy. Hence the petitioners shall be at liberty of assailing the impugned order before the Appellate Authority in accordance with law. The learned counsel for the petitioners submits that he shall file the appeal before the Appellate Authority within a period of three weeks from today alongwith an application for interim relief. In case, if such an appeal alongwith the aforesaid application is preferred within the aforesaid period, the Appellate Authority shall consider the same and decide strictly in accordance with law after affording an opportunity of hearing to the parties concerned.
Till the period of three weeks or till the disposal of the application for interim relief which ever is earlier, the parties shall maintain status quo as it exits today. It is made clear that Court has not expressed its opinion on merits and the Appellate Authority concerned shall decide the controversy independently solely on its own merits.
With the aforesaid, the petition stands disposed of.
Order Date :- 6.1.2021 ank