Supplementary affidavit filed by the learned counsel for the petitioners is taken on record.
Heard learned counsel for the parties.
This writ petition arises out of proceeding for mutation under Section 33/39 of U.P. Land Revenue Act. Land in dispute is situate in Village Kehuni Pargana Kewai Tehsil Handia District Allahabad comprised in Khatas No.36,53,54,55 & 56. The land in dispute belonged to Smt. Sursati, mother of the petitioners, who died on 19.09.1991. However before her death she had filed a suit before the civil court challenging a sale deed which was asserted by some parties to have been executed by her and which fact she outrightly denied. Smt. Sursati inherited the agricultural land in dispute from her father Gajroo, who was co-sharer therein along with his brothers. Contesting respondent No.3, Matambar is son of Raj Narain, who was son of Kuber. Kuber was real brother of Gajroo (maternal grand-father of the petitioners). The sale deed alleged to have been executed by the mother of the petitioners was shown to have been executed on 24.04.1979 in favour of Bechu son of Shiv Nayak. Shiv Nayak like Kuber was also real brother of Gajroo. The said sale deed was challenged by the mother of the petitioners through Original Suit No.969 of 1979. The suit was decreed on 23.08.1982 by Additional Munsif, Allahabad. Copy of the said judgment is Anenxure-XI to the writ petition. Against the said judgment and decree, Civil Appeal No.687 of 1982 was filed by the defendants of the suit. The appeal was allowed on 29.05.1983 by A.D.J./ Special Judge, Allahabad and matter was remanded to the trial court. Against the said order of remand, F.A.F.O. No.571 of 1983 was filed by the mother of the petitioners in this High Court. Mother of the petitioners died on 19.09.1991 and petitioners got themselves substituted in the F.A.F.O. at her place. Substitution application was allowed on 08.05.1995. The F.A.F.O. was allowed on 04.10.1996, judgment and decree passed by the appellate court was set aside and judgment and decree passed by the trial court was restored meaning thereby that the sale deed dated 24.04.1979 stood cancelled. The said judgment is Annexure-XIII to the writ petition. Thereafter name of Sursati Devi was recorded in the revenue records and immediately thereafter the names of the petitioners were mutated. The order was passed by Niab Tehsildar on 26.11.1996.
Thereafter respondent No.3, Matambar filed application for mutation of his name on the ground that late Smt. Sursati Devi had executed Will (unregistered) in his favour on 19.08.1990. Orders passed on the said mutation application have been challenged through this writ petition. On inquiry from the Court, learned counsel for the contesting respondent No.3 categorically stated that until 1996 when F.A.F.O. was allowed by this Court, respondent No.3 had no concern with the land in dispute and his interest stood revived after the judgment of the High Court dated 04.10.1996. This is a very strange reply. The property regarding which respondent No.3 claimed that Smt. Sursati Devi had executed a Will was subjudice in the F.A.F.O. and if the F.A.F.O. had been dismissed, property would have gone to Bechu and even if Will was in fact executed by Smt. Sursati in favour of respondent No.3 still respondent No.3 would have got no benefit thereunder.
However, Sri B.B. Paul, one of the learned counsel for contesting respondent No.3 has argued that orders passed in mutation proceedings are subject to the result of the regular suit, hence in normal course interference should not be made with the said orders. The argument is quite convincing hence accepted.
Accordingly, writ petition is dismissed on the ground of alternative remedy of regular suit available to the petitioners for declaration that the Will is not genuine or cancellation of the Will. It is needless to add that along with the plaint of said suit, if filed, application for temporary injunction may also be filed. However, as filing of the suit may take some time, hence it is directed that for a period of six months from today respondent No.3 shall not interfere in the possession of the petitioners over the agricultural land in dispute. Both the parties are also restrained from alienating the property in dispute during this period of six months.
Order Date :- 13.5.2011 NLY