Heard Shri A. K. Jauhari, learned counsel for the petitioners, learned Additional Chief Standing Counsel for the State and Shri Ramesh Singh, learned counsel for the opposite parties no. 4 and 5.
A sale deed is said to have been executed by Babu Ram the father of the petitioners no. 2, 3 and 4 in favour of the opposite parties no. 4 and 5 etc. on 27.04.1985 by which he is said to have sold off Gata No. 280 in favour of the private opposite parties. Mutation proceedings were initiated wherein an order was passed on 30.03.1990 ordering the mutation of the name of the vendees in respect of the Gata No. 280. Accordingly, the requisite entries were made in Register R-6, but, it is said that while making the consequential entry in the Khatauni the Lekhpal erroneously mentioned Gata No. 587 which had not been purchased by the private opposite parties.
The case of the petitioners herein is that in fact Gata No. 280 was erroneously and incorrectly mentioned in the sale deed dated 27.04.1985 and that the land which was sold was Gata No. 587. Consequently, in 2007 a Suit for cancellation of the said sale deed was filed calculating limitation on the basis of knowledge of the aforesaid fact. The said Suit was filed as informed by the learned counsel for the petitioners immediately after 23.02.2008.
The learned counsel for the opposite parties says that the proceedings for correction of the records were initiated on 23.04.2007 prior to the filing of the suit for cancellation but, the application of the private opposite parties was rejected. Being aggrieved a revision was filed wherein the aforesaid error was detected and ordered to be rectified. In the meantime, when notices were issued in these proceedings to the petitioners no. 2 to 4 they sold off the property to the petitioner no. 1. After the revision of the private opposite parties was allowed, a revision was filed by the petitioners before the Board of Revenue which has been dismissed by the impugned judgment dated 26.04.2019.
On a perusal of the judgment of the Board of Revenue the Courts finds that the factual issues as also the revenue records have been perused and considered and thereafter, findings of fact have been arrived at affirming the findings of the First Revisional Court that there was an error apparent in making the entries in the Khatauni by the Lekhpal who incorrectly recorded the name of the vendees in respect of Gata No. 587, whereas, the Gata purchased was Gata No. 280. It being the admitted factual position of the petitioners/their predecessor in interest that they have initiated proceedings for cancellation of sale deed dated 27.04.1985 wherein the sale deed has not been cancelled as yet nor is it the case of the petitioners that any rectification of the sale deed has taken place or any proceedings had been initiated in this regard and as the mutation was made on the basis of sale deed, in this view of the matter, there is no valid ground for this Court to interfere under Article 226 of the Constitution of India.
As regards the contention of the petitioner no. 1 that he is in possession of Gata No. 280, whereas, the private opposite parties are in possession of Gata No. 587 this is a factual issue which is not open for consideration for the first time before the writ Court. This issue need not be gone into by this Court.
As the petitioner no. 1 would not have a greater right than petitioners no. 2 to 4 from whom he has allegedly purchased the property, therefore, the claim of the petitioners no. 2 to 4 in the proceedings in question has not been accepted by the Courts below and the said decisions are being affirmed by this Court, therefore, the petitioner can not continue to be recorded in respect of Gata No. 280. Accordingly, any mutation order passed in his name ipso facto ceases to have any legal significance and becomes a nullity. The same is declared to be so in exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution of India so as to avoid any further unnecessary multiplicity of litigation of course without prejudice to the rights of the petitioners to raise a title dispute before the competent Court.
As regards the reliance placed by Shri Jauhari, learned counsel for the petitioners on the proviso to Section 33(2)(b) of the U.P. Land Revenue Act, 1901 which provides that the power to record a change under clause (b) shall not be construed to include the power to decide a dispute involving any question of title, this plea far from helping him goes against him, as, in proceedings for change of records it was not open for the petitioners no. 2 to 4 to say that the land which was sold off by the sale deed dated 27.04.1985 was not Gata No. 280 but 587, as, whatever was written in the sale deed , unless it is rectified or cancelled, would have to be given effect. Furthermore, this proviso did not have any application when the mutation order was passed on 30.03.1990 as no such dispute of title was raised in the said proceedings by any of the petitioners or their predecessor in interest.
The Revenue Authorities shall now correct the records in respect of the Gata No. 280 accordingly, subject of course to the suit proceedings pending with regard to the cancellation of the sale deed dated 27.04.1985.
With the aforesaid observations, the writ petition is dismissed.
Order Date :- 26.7.2019 R.K.P.