This is a writ petition arising out of proceedings under Section 34 of the U.P. Land Revenue Act, 1901 for mutation of the holding of one late Smt. Lakhpati Devi wife of late Mahadev Prasad.
The petitioner-institution claims to have succeeded to the holding on the basis of an alleged endowment/will said to have been executed by late Smt. Lakhpati Devi on 12.3.1996. Apart from this claim, an assertion has been made in paragraph 3 that when the bye-laws of the institution were being framed in the lifetime of late Smt. Lakhpati Devi herself, the property had been set apart for the institution. It is on the said basis that the petitioner-institution claims mutation over the holding of late Smt. Lakhpati Devi who died on 13.3.1996.
Notices had been issued and the respondent No. 1 has put in appearance through Sri Rahul Sripat and the respondent No. 2 through Sri Ashutosh Srivastava. Respondents No. 3 and 4 have not put in appearance in spite of steps having been taken by the petitioner.
The holding is also being claimed by the respondent No. 1 on the basis of a will said to have been executed in her favour by late Smt. Lakhpati Devi. The respondent No. 2 also claims on the basis of a will and the respondents No. 3 and 4 are alleged to have set up some sale deed.
In this race of mutation the respondent No. 1 appears to have succeeded in getting an order of mutation from the Tehsildar on 12.3.1999.
It appears that restoration applications were filed as alleged by the respondent No. 2 and also by the petitioner-institution.
The restoration filed by the petitioner-institution appears to have been dismissed on 16.7.2002. It is against the said rejection of the restoration that an appeal was filed which was dismissed on 11th June, 2003 and the revision filed against the same has also met the same fate vide order dated 03.4.2006. This is how the petitioner-institution is before this Court in the present writ petition questioning the correctness of these three orders.
Sri Misra submits that the petitioner-institution has a rightful claim of title over the property and, therefore, the mutation that has been allowed in favour of respondent No. 1 is erroneous without considering any of the rival claims including that of the petitioner-institution. The contention raised is that the Tehsildar ought to have consolidated all the matters together and then disposed of the same in accordance with law, keeping in view the fact that the mutation application of one of the parties, namely, respondent No. 2 is still pending before the Tehsildar.
The petitioner-institution also claims an independent right through some other application as alleged by Sri Misra.
I have perused the documents on record. The findings recorded by the Appellate Authority and the Revisional Authority are categorically to the effect that the petitioner-institution claims title over the property on the basis of a will dated 12.3.1996 which was never produced either before the Tehsildar or before the Appellate Authority or before the Revisional Authority. In the absence of any legitimate basis for claiming mutation, the request made on behalf of the petitioner-institution has been rejected.
Having perused the said finding, it appears that an improvement is sought to be made in the present writ petition and a copy of the alleged will has been filed which is said to be a document conferring title on the petitioner-institution. A tenure holder can bequeath his or her holding under Section 169 of the U.P. Z.A. & L.R. Act, 1950.
In the absence of any tangible evidence either before the Tehsildar or before the Appellate Authority, the petitioner could not have claimed any right of mutation. More so, in the background of the aforesaid facts there is no available registered document or any other evidence for the time being in existence to construe a legitimate claim of title by the petitioner. It is, therefore, clear that the proceedings for mutation as claimed by the petitioner have rightly been rejected. Suffice it to say that all proceedings of mutation under Section 34 of U.P. Land Revenue Act, 1901 are subject to any decision in a regular suit claiming title.
The remedy for the petitioner or any of the other claimants to the holding of late Smt. Lakhpati Devi is, therefore, to institute a regular suit under Section 229-B of the U.P. Z.A & L.R. Act, 1950 for the purpose of such declaration which would be binding on the parties who are claiming title over the property. Needless to say that it shall be open to the petitioner to implead all the contesting claimants in the said suit or any other lawful proceedings to seek declaration as alleged herein.
In the aforesaid circumstances, the present writ petition would not be an appropriate remedy for such a declaration. Therefore, I am not inclined to interfere with the impugned orders in exercise of jurisdiction under Article 226 of the Constitution.
The writ petition is accordingly dismissed with the aforesaid observations.
Order Date :- 26.3.2012 faraz