Heard learned counsel for the petitioner Sri Vishal Khandelwal. The petition arises out of proceedings under Section 34 of the U.P. Land Revenue Act, 1901.
In the proceedings before the original authority two competing wills were set up. One by the petitioner dated 15th February, 1983 which was unregistered, and the other which is registered by the contesting respondents dated 18.11.1981. The respondents succeeded in getting a mutation order in their favour. Thereafter an appeal was filed by the petitioner which came to be dismissed and the revision against the same also met the same fate. A restoration application was filed before the revising authority contending that the order had been passed ex-parte, as a future date had been fixed, which restoration application also came to be dismissed on 26.5.2011. Hence this petition.
Sri Khandelwal submits that the revising authority has committed an error by not believing the date that had been fixed by the authority itself, inasmuch as, the application admittedly had been moved and had been directed to put up with the file on 25.4.2005. He submits that the date was noted and the petitioner had put his signature after the date was fixed for 26.5.2005. This aspect has been erroneously decided. Hence, the order dated 26.5.2011 deserves to be set aside.
Apart from this on merits Sri Khandelwal submits that the revising authority in the impugned order dated 25th April, 2005 has indicated a very strange reasoning that since a writ petition under Article 226 is not entertainable in matters arising out of summary proceedings therefore a revision would also not be maintainable. Sri Khandelwal submits that this parity drawn by the revising authority does not appeal to reason and therefore the order dated 25.4.2005 cannot be sustained.
He further contends that the conclusion drawn by the revising authority that there are concurrent findings against the petitioner and in favour of the respondents, therefore the revision would not proceed, is also an erroneous approach, inasmuch as, if the concurrent findings are perverse then the revision ought to have been entertained on merits.
Coming to the merits of the claim, Sri Khandelwal submits that merely because the will relied on by the petitioner was unregistered and that it was not drafted by a lawyer, the same cannot be made the basis for assessing the validity of a will, which has to proceed on the basis of evidence to be led and proved in terms of Section 68 of the Indian Evidence Act, 1872. He further contends that if the will of the respondents was registered, the mere registration therefore is not proof of the validity of the will and the same was not even a statutory requirement in the year 1981 under Section 169 of the 1950 Act. In short his submission is that the reasons given are not available in law and therefore the impugned orders on merit are also liable to be set aside with a direction to consider the respective wills in the light of the submissions so raised.
Having heard Sri Khandelwal what appears is that the court had not passed any formal order of fixing a date for 26th May, 2005. The document which has been filed on record as Annexure 5 to the writ petition does not indicate any order being passed by the authority fixing a date for 26th May, 2005. In view of this, no presumption can be drawn on the endorsement of the petitioner that the authority even intended to adjourn the matter. On the contrary the date that was fixed on 11th April, 2005 after hearing the parties and was placed for orders on 25th April, 2005.
Coming to the second contention with regard to the merits of the order of the revising authority, suffice it to say that the revising authority may have erred in drawing a parity in relation to the jurisdiction being exercised by this Court under Article 226 of the Constitution of India and to that extent Sri Khandelwal may be right that if there is any discernible material irregularity or perversity, the revising authority can enter into the validity of summary orders passed under Section 34 of the U.P. Land Revenue Act, 1901.
However, on merits, it appears that the contesting respondents set up a claim that they were sons of late Purshottam Narain the executor, and the will was registered which is dated 18.11.1981. It appears that it is the said factor that weighed in the mind of the Tehsildar to proceed to believe the claim of the respondents as against the petitioner who was neither related nor was connected with late Sri Purshottam Narain. The said aspect of the matter was taken to be a material basis for rejecting the claim of the petitioner and accepting that of the respondents. Thus it cannot be said that there was no material or any perverse material was considered by the mutating authority while proceeding to pass the impugned order. If the material is otherwise not substantiated in law or can be rebutted, then the petitioner can still file a suit for the declaration of his rights in the event the petitioner is able to establish anything to the contrary.
In view of the aforesaid conclusions drawn, I am not inclined to interfere with the impugned orders in the exercise of jurisdiction under Article 226 of the Constitution of India, leaving it open to the petitioner to seek such a declaration as may be available in law from a court of competent jurisdiction.
Needless to say that Sri Khandelwal is right in his submissions that the findings recorded in the summary jurisdiction of Section 34 of the U.P. Land Revenue Act, 1901, cannot be an impediment in the passage of the court exercising competent jurisdiction to issue any declaration in favour of either of the parties.
The writ petition is dismissed.
Dated: 9.9.2011 Sahu