1. Heard.
2. This petition has been filed challenging the order dated 17.12.2020 passed by the Additional Commissioner (Administration) II, Devi Patan Mandal, Gonda in Revision No.00903 of 2018 and also quashing of the order dated 08.06.2018 passed by the Tehsildar Colonelganj under Section 34 of the U.P. Land Revenue Act in Case No.1860 of 2012-13.
3. It has been submitted by learned counsel for the petitioner that a case for mutation was instituted by the respondent no. 3 on 20.08.2013 on a strength of Agreement to Sale dated 28.10.2009 in respect of the 1/3rd portion of Gata No.531/0.8370 hectare i.e. for 40 dec. only situated in Village Hariharpur, District Gonda. Such Agreement to Sale could not create any right upon the parties as has been provided under Section 54 of the Transfer of Property Act. However, on the basis of the said Agreement to Sale, without recording the finding regarding who was in possession of the property in question, the Tehsildar Tarabganj, directed mutation in favour of the respondent no.3 by the order dated 08.06.2018. The petitioner being aggrieved filed a Revision, which Revision has been rejected without looking into the specific requirement of law that possession had to be delivered to make such Agreement to Sale of any legal value.
4. Learned counsel for the petitioner further submits that even when a mutation application is filed on the basis of a registered sale deed, the Tehsildar has to record a finding about the possession of the land in question as has been held by this Court in Amar Nath Arora Vs. Board of Revenue, 2019 (37) LCD 775.
5. Learned counsel for the petitioner has placed reliance upon paragraphs 31, 34 and 38 of the said judgment, which are being quoted hereinbelow:-
"31. The mutation proceedings in respect of agricultural land which are presently governed by the provisions of Sections 34 and 35 of the U.P. Revenue Code, 2006, were earlier governed by Sections 34 and 35 of the U.P. Land Revenue Act. The provision of Section 34 of the U.P. Revenue Code, 2006 and Section 35 of the U.P. Revenue Act are in pari materia. In both these provisions, the emphasis, in my considered opinion, is on "obtaining possession by transfer'. From a perusal of the aforesaid provision, I have no hesitation to observe that the application for mutation would not lie unless the person obtains possession over the land. The mutation proceedings are to be decided on the basis of possession which, of course, has to be valid possession and as such the court ordering mutation is required to give a finding in relation to possession and unless the court is able to satisfy itself as to the possession of any party, the court would not undertake to ascertain by a summary enquiry as to who is the person best entitled to it. However, the possession must be a legal possession, that is to say the possession under law. The possession here would mean the possession based on valid succession or valid transfer and not that of a rank trespasser.
34. Learned counsel representing the respective parties have advanced long arguments claiming that either the petitioner or respondent no.4 has been in possession. However, what is noticeable in this case is that the finding in favour of respondent no.4 having obtained possession over the land in question is missing in the orders impugned herein. The overwhelming evidence available in favour of the petitioner regarding petitioner being in possession, does not appear to have been considered and discussed by the Naib Tehsildar. Learned counsel for the petitioner has drawn attention of this Court to various such evidence, namely, the statement made by Vimarsh Kumar Rastogi-respondent no.10 in his written statement filed in Regular Suit No. 23 of 2016, where in Para-24, he appears to have admitted that a Marriage Lawn was developed by the petitioner not only on plot no. 901, but also on plot no. 902. He has also referred to the Commissioner's report dated 15.01.2016 filed in Regular Suit No. 23 of 2016 which also mentions existence and running of Marriage Lawn and certain constructions thereon. He has also stated that in partition suit filed under Section 176 of the U.P. Z.A. & L.R. Act, an affidavit was filed by Pratap Chandra Rastogi, who is the father of respondent no.10, in paragraph-8 whereof, Pratap Chandra Rastogi has admitted that on 13.02.1984, Lal Chand Rastogi sold khasra plot no. 901 in favour of Lal Chand Arora and on the basis of family settlement, khasra plot no. 902 was also sold in favour of Lal Chand Arora. He has, thus, stated that all these evidences go on to show that respondent no.4 did not obtain possession over the land in dispute and as such in absence of obtaining possession, the mutation could not be claimed by the respondent no.4, merely on account of recitals of possession being handed over, made in the sale deed executed on 06.04.2017.
38. In view of the discussions made above in this case, I find that the learned courts below have not considered the matter relating to possession appropriately. In absence thereof, the order of mutation passed in favour of the respondent no.4 cannot be permitted to be sustained."
6. Sri Vivek Kumar Pandey, learned counsel for the respondent no.3, has refer to the registered Agreement to Sale which has been filed as annexure to the petition and he has specifically pointed out pages 26 and 27 of the paper book, wherein it is clearly stated that registered Agreement to Sale also records that possession of the property in question had been handed over to the transferee. He has also pointed out from his counter affidavit filed on 18.01.2021 that the petitioner was heard by the Tehsildar in mutation proceedings and even before the Revisional Court. The Revisional Court has considered the fact that both the parties were relying upon the same document i.e. Agreement to Sale which is a registered document for which no proceedings have been initiated before any competent court for its cancellation.
7. Learned counsel for the petitioner in rejoinder as pointed out that the respondent no.3 has filed a Regular Suit No.03 of 2012 for rectification of the document dated 28.10.2009 which is pending adjudication in the court of IVth Civil Judge (Junior Division), Gonda. The respondent no.3 has himself stated before the Civil Judge in Regular Suit that the Agreement to Sale be treated as a sale deed. He has also submitted that although Civil Suit for cancellation of document is pending adjudication, the same will not dis-entitle the petitioner to raise objections in mutation proceedings, which mutation proceedings ought not to have been decided only on the basis of a recital made in the mutation application of the Agreement to Sale. He has also referred to the judgment rendered in the case of Amar Nath Arora (supra), wherein this Court has stated that the duty of the revenue officials is to first conduct enquiry about the possession of the land in question and it was not sufficient for the Tehsildar to have relied upon the recital in the document of transfer saying that the possession had been handed over.
8. It has also been pointed out by Sri Indrajeet Shukla that it is the case of the petitioner that there is only a Agreement to Sale and not a sale deed as a Suit for rectification of the document has already been filed by respondent no.3. The order passed by the Tehsildar therefore becomes an order passed without jurisdiction as the document on the basis of which the said mutation orders have been passed is only an Agreement to Sale, which does not create any right.
9. Learned counsel for the petitioner also submitted that this Court has itself clarified several exceptions and the settled position in law with regard to the interference in writ jurisdiction in orders passed in mutation proceedings. He has referred to Awadhesh Singh Vs. Additional Commissioner and others. He has also referred to the judgment rendered by this Court in Amar Nath Arora (supra), where after considering the law laid down by this Court in Lal Bachan Vs. Board of Revenue, U.P., Lucknow 2002 93 RD 6, and Rudra Mani Shukla Vs. Subhash Kumar and two others, in Writ Petition No.262 (M/S) of 2017, this Court had found it appropriate to show interference finding the orders passed by the revenue officials in mutation proceedings to be without jurisdiction.
10. This Court finds that the respondent no.3 has himself filed an application for rectification of the document dated 28.10.2009. Therefore, the order passed by the Tehsildar directing the mutation of name of respondent no.3 on the property in question cannot be said to have been passed by following due process of law and is completely without jurisdiction.
11. The orders impugned dated 08.06.2018 and 17.12.2020 are set aside.
12. It shall be open for the respondent no.3 to file appropriate mutation application after his document/ instrument dated 28.10.2019 is duly rectified by the competent court and his right, title and interest on the property in question is determined by the competent court.
13. The writ petition is allowed.
Order Date :- 18.2.2021 Rahul