Court No.21 Case :- WRIT - B No. - 1439 of 2021 petitioners :- Kamlesh Kumar And 2 Others Respondent :- Board Of Revenue And 6 Others Counsel for petitioners :- Subedar Mishra Counsel for Respondent :- C.S.C.,Avinash Chandra Srivastava,Vijit Saxena,Vishal Khandelwal
Hon'ble Dinesh Pathak,J.
1. Heard Sri Subedar Mishra, learned counsel for the petitioners, Sri Vishal Khandelwal, learned counsel for the contesting respondent no.2 and learned Standing Counsel representing the respondent no.1.
2. The instant writ petition is arising out of a mutation proceeding challenging the order dated 10.08.2021 (Annexure-21) passed by the Board of Revenue, U.P. at Lucknow (respondent no.1) in Revision No.71 of 2019 (Radha Rani Vs. Ramesh Chandra and others) under Section 219 of U.P. Land Revenue Act, 1901 (in brevity 'U.P.L.R. Act').
3. Facts giving rise to present writ petition is that the land in question was recorded in the name of Kishori Lal and after death of recorded tenure holder (Kishori Lal), mutation application has been filed by Radha Raman and Vishnu on the basis of Will Deed dated 27.04.1991, which was dismissed by Tehsildar vide order dated 22.12.1995. Thereafter, one Radha Rani (respondent no.2) has filed subsequent mutation application on the basis of unregistered Will Deed dated 12.09.1992. During pendency of the aforesaid mutation application, Vishnu has again moved second mutation application on the basis of registered Will Deed dated 02.12.1982. After considering the rival submissions made by both the parties, Tehsildar vide order dated 16.01.2008 (Annexure-9) has rejected the application filed by the respondent no.2 and passed an order for mutating the name of Bhagwat, Radha Raman and Vishnu, all sons of Kishori Lal. Feeling aggrieved, the respondent no.2 has filed an appeal, which was dismissed by the Sub Divisional Magistrate, Sadar, Mathura (in brevity 'S.D.M.') vide order dated 24.12.2018 (Annexure-18). Having been aggrieved by the order passed by the S.D.M., the respondent no.2 has preferred a revision, which has been allowed by the respondent no.1 vide order dated 10.08.2021 (Annexure-21), which is under challenge in this petition.
4. Counsel for the petitioners submits that the respondent no.1 has illegally recognized the right and title of Smt. Radha Rani (respondent no.2) on the basis of an unregistered Will Deed dated 12.09.1992, whereas it was never been proved as per law. It is further submitted that the respondent no.1 has illegally given weightage to an unregistered Will Deed and discarded the legal right and title of Bhagwat being son of recorded tenure holder. Present petitioners are claiming their right and title on the basis of the registered sale deed dated 25.09.2010 executed by Bhagwat.
5. Per contra, learned counsel for the contesting respondent contended that the present writ petition is arising out of a mutation proceeding and an order passed in a mutation case does not confer any right and title. It is further contended that the respondent no.1 has rightly passed the order in favour of the respondent no.2 on the basis of the Will Deed, which was proved by its marginal witnesses.
6. Carefully considered the rival submissions made by learned counsel for the parties and perused the record on board.
7. It is admitted that Kishori Lal was recorded tenure holder of the land in question. The pedigree given by learned counsel for the petitioners in paragraph 4 of the writ petition is reproduced below :-
Kishori Lal | | | | | | Bhagwat Prasad RadhaRaman Vishnu Radha Rani A Daughter (unknown)
8. According to the pedigree, Bhagwat Prasad, Radha Raman and Vishnu are the sons of Kishori Lal and Radha Rani (respondent no.2) is the daughter of Kishori Lal. Present petitioners are claiming their right and title on the basis of registered sale deed dated 25.09.2010 executed by Bhagwat Prasad, one of the son of Kishori Lal. In mutation proceeding, Tehsildar, (Trial Court) and the Sub Divisional Magistrate have decided the matter against the respondent no.2, but their orders were reversed by the respondent no.1 with an observation that the Will Deed relied upon by the respondent no.2 has been proved by its witnesses.
9. The legal proposition with respect to the nature and scope of proceeding under section 34 of the U.P.L.R. Act is no more res integra that the mutation proceeding is fiscal and summary in nature which does not confer any right or title in favour of the person concerned over the property in question and the order passed in the mutation proceeding is always subject to final adjudication of right and title of the parties in a regular proceeding by the competent Court. The Hon'ble Supreme Court in its recent judgment dated September 06, 2021 (Special Leave Petition (C) No. 13146 of 2021; Jitendra Singh vs. State of Madhya Pradesh & Others), has expounded that title of the parties can only be decided by the court having competent jurisdiction and the mutation of the property in the revenue records neither creates nor extinguish title of the property nor has it any presumptive value on title. Relevant paragraph nos. 6, 6.1 & 7 of the said judgment is quoted below :-
“6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Raqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.
7. In view of the above settled proposition of law laid down by this Court, it cannot be said that the High Court has committed any error in setting aside the order passed by the revenue authorities directing to mutate the name of the petitioners herein in the revenue records on the basis of the alleged will dated 20.05.1998 and relegating the petitioners to approach the appropriate court to crystalise his rights on the basis of the alleged will dated 20.05.1998.We are in complete agreement with the new taken by the High Court.”
10. In this conspectus as above, I am of the opinion that the petitioners have an alternative remedy to file a declaratory suit under section 144 of the U.P. Revenue Code, 2006 to get their right and title adjudicated by the competent Court.
11. Present writ petition is devoid of merits and it is, accordingly, dismissed on the ground of availability of alternative remedy.
12. Before parting the matter, counsel for the petitioners has made an oral request to grant an interim order in favour of the petitioners till the consideration of the stay application to be filed by the petitioners along with the suit before the competent Court.
13. In my opinion, it would not be appropriate to pass any interim order at this juncture, whereas it is open for the petitioners to file a declaratory suit before the competent Court, who can also consider and decide the interim injunction application, if any, filed along with the suit considering the merits of the case. However, if the petitioners file the stay application along with the suit with respect to their grievances relating to the property in question, the same shall be considered and decided by the Court concerned, without being prejudiced by this order, expeditiously, preferably within a period of one month from the date of filing of the suit.
Order date : 24.09.2021 Manish Himwan