JUDGMENT Prakash Krishna, J.
1. These two writ petitions were heard together and are being disposed of by a common judgment as the facts are interwoven and mingled and related to each other, as suggested by the learned Counsel for the parties.
2. One Muneshwar had two daughters namely Gayatri and Durgawati. The petitioner, Smt. Durgawati is one of the daughters of Shri Muneshwar. Shri Muneshwar who died on 25th of December, 1991 during his life time had executed a sale deed in favour of above named daughters, who applied for mutation of their names on the basis of the sale deed before Tehsildar Mohammadabad which was allowed by the order dated 22nd May of 1992. Their names were mutated in the Khatauni. One Naresh, respondent No. 4, filed a restoration application before the Tehsildar on the basis of two alleged sale deeds in his favour being dated 7th of January, 1987 and 2nd Nov., 1987 purporting to be executed by Shri Muneshwar in his favour. The restoration application was dismissed by the Tehsildar by the order dated 18th of January, 1996 who has also recorded a finding that after the death of Muneshwar his two daughters Gayatri and Durgawati are in physical possession of the land in question. This order was challenged before the S.D.M. who by the order dated 8th June, 1998 declared abated all the proceedings before the Tehsildar in view of the fact that the village has come under consolidation operation in view of the notification of October, 24, 1991 issued under Section 4 of U.P. Consolidation of land Holdings Act (hereinafter called as CH Act). This order has been confirmed in revision No. 147/177/M of 1998 by the Additional Commissioner, Azamgarh Division Azamgarh by the order dated 29.6, 999. Challenging these orders writ petition No. 34674 of 1999 has been filed.
3. Ram Naresh who is respondent No. 6 in the connected writ petition No. 30601 of 2002 moved an application before the Consolidation Officer for directing the Assistant Consolidation officer to comply with the order dated 8th June, 1998 passed by UP ziladhikari Mohammadabad Gohna by which the mutation proceedings before the Tehsildar were declared abated. The Consolidation Officer issued necessary direction to the Assistant Consolidation Officer to comply with the order dated 8.6.1998, by the order dated 15th June, 1998 filed as annexure -3 to the writ petition No. 30601 of 2002. The said order was unsuccessfully challenged by the petitioner in appeal No. 1428 of 1998 before the Settlement Officer Consolidation. The petitioner was unsuccessful in revision also filed before the Deputy Director of Consolidation. Challenging the orders of these authorities writ petition No. 30601 of 2002 has been filed.
4. Heard the counsel for the parties and perused the record. The learned Counsel for the petitioner strenuously contended that in view of the judgment of this Court in the case of Raj Singh v. DDC 1997 (88) RD 348 the relevant date of notification under Section 4 of the CH Act is the date on which the District Director-of Consolidation gives public notice of declaration issued under Clause (a) of the Act. He submitted that the authorities below committed illegality in taking into consideration the date of. notification issued under Section 4(1) of the Act as the cut off date. On the other hand the learned Counsel for the respondent submitted that this Court should not interfere with the impugned orders as the present writ petition arises out of Limitation proceedings wherein the rights of the parties are not decided. The question of title shall be decided by the Consolidation Courts and as a matter of fact a dispute is pending before the Consolidation Officer between the parties under Section 9-A(2) of the CH Act.
5. I have given careful consideration to the respective submissions of the learned Counsel For the parties. It is not in dispute that Muneshwar deceased had no son; he had only two daughters namely Gayatri and Durgawati; who are otherwise natural heirs of the deceased. Their names rare to be recorded in place of the deceased irrespective of the fact whether deceased has executed any sale deed in their favour or not. On the other hand the contesting respondent is claiming title on the basis of sale deeds allegedly executed in his favour allegedly by Muneshwar in the year 1987. There is absolutely no explanation on record as to why the contesting respondent did not apply during life time of Shri Muneshwar for mutation of his name, immediately after the execution of the sale deed in the year 1987. Tehsildar has recorded a finding that the petitioner along with his sister is in actual possession of the land in question. In this fact situation, the contesting respondent has to establish the sale deed on the basis of which he is claiming title over the disputed land before the competent court of law. During the course of argument the learned Counsel for the respondent submitted that the mailer is pending consideration before the Consolidation Officer under Section 9-A (2) of the Act.
6. According to the learned Counsel for the petitioner notification under Section 4(1) of the Act is dated 24.10.1991 and it was promulgated on 20.8.1992 under Section 4 (2) of the Act. The order of Tehsildar, Mohammadabad Gohna is in between the two i.e. dated 29.5.1992 and as such the order of Tehsildar Mohammadabad Gohna could not be declared abated by the SDM and the Additional Commissioner has some force in view of the judgment of this Court in the case of Raj Singh v. DDC (supra). The learned Counsel for the contesting respondent, could not dispute that the notice was published in the unit in question subsequent to the order of mutation passed by the Tehsildar. In view of the above I find sufficient force in the writ petition No. 34674 of 1999.
7. So far as the argument of the learned Counsel for the respondents that in mutation matters there should be no interference by higher court it is to say that this principle is not of universal application. No doubt in mutation proceedings the rights of the parties are not decided. The mutation, take place only for limited purposes to fix the liability of the person to pay the land revenue. It is also true that generally higher courts do not interfere with the mutation order. But there is no absolute bar to interfere with the mutation order in appropriate cases particularly when there is no dispute of natural heirship. In the present case the petitioner is daughter of deceased who was recorded tenure holder. Her heirship has not been questioned by the contesting respondents nor could possibly be questioned by him. The claim of the contesting respondent is based on sale deeds of the year 1987, he applied for mutation at a belated stage after the death of the executant of the sale deed when the names of the natural heirs were already ordered to be mutated. The filing of application by the contesting respondent after about 5 years itself creates a doubt in the mind of the Court. However, it is not proper for this court to say any thing further in the matter as the title dispute is pending before the Consolidation Officer who shall hear and decide the same on merits uninfluenced by any of the observations made above. But for all practical purposes, till the disposal of such proceedings by the consolidation authorities they are directed to record the name of the petitioner and Gayatri in place of the deceased Muneshwar.
8. The S.D.M. in its order dated 8th June, 1998 (Annexure - 3 to the writ petition) and Additional Commissioner in its order dated 29th June, 1999 (Annexure-4 to the writ petition No. 34674 of 1999 committed illegality in setting aside the order of mutation passed by the Tehsildar in favour of the petitioner. The impugned orders dated 8th June, 1998 and 29.6.1999 (Annexures 3 and 4 respectively) are hereby quashed. The writ petition No. 34674 of 1999 is allowed. The orders impugned in the writ petition No. 30601 of 2002 are consequential orders. They are also hereby quashed.
9. Both the writ petitions are allowed :subject to the observations made above. No order as to costs.