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ALLAHABAD HIGH COURT
Devendra Kumar Upadhyaya, J.
Tulsi Ram and Others - Appellant
Versus
Addl. Commissioner (Jud.), Lucknow and Others - Respondent
Misc. Single No. - 4541 of 2003
Decided On : 16-10-2015
Mutation Proceedings - U.P. Land Revenue Act - Section 34, 210, 218
Fact of the Case:
The petitioners filed a writ petition under Article 226 of the Constitution of India against the orders passed by the Revenue Courts in mutation proceedings. The dispute arose regarding the mutation of names over a property after the death of the original tenure holder, Bhawani.
Finding of the Court:
The court found that the writ petition was not maintainable as the orders passed in the mutation proceedings did not fall under the exceptions carved out in previous judgments. The court also emphasized that the mutation had been ordered after debating the entitlement to succeed the property, touching on the merits of the rival claims.
Issues: The main issue was the maintainability of the writ petition against the orders passed in the mutation proceedings.
Ratio Decidendi: The court held that the writ petition would not be maintainable unless the orders were found to be without jurisdiction, contrary to the title already decided by a competent court, or if the mutation had been directed not on the basis of possession or on the basis of some title deed but after entering into debate of the entitlement to succeed the property touching to the merits of the rival claims.
Final Decision: The writ petition was dismissed as lacking merit.
Devendra Kumar Upadhyaya, J.
Heard Shri Avadhesh Kumar, learned counsel for the petitioners, Shri Alok Kirti, learned counsel for respondents no.6, 7 & 8 and Shri Shiv Poojan Maurya, learned counsel for respondent no.4.
2. This writ petition under Article 226 of the Constitution of India has been preferred by the petitioners against the orders passed by the Revenue Courts in mutation proceedings. For the purposes of resolution of the controversy involved in this petition, following pedigree is relevant to be mentioned.
Triloki
Shyam BehariKalluRam DinBhawaniBisram
Ram KumarSuraj Bali
Smt. Ram Dei (opp. party no.4)Ram Swarup (opp party no.7)Ramesh (opp party no.8)
Ganesh (opp party no.5)Shiv Shanker (opp party no.6)
Tulsi Ram (petitioner no.1)Lallu Ram (petitioner no.2)Bhola Nath (petitioner no.3)Chandra Shekhar (petitioner no.4)
3. The original admitted tenure holder of the land in dispute was Bhawani, who died issue-less. After his death, an application under Section 34 of the U.P. Land Revenue Act was moved by the petitioners for mutation of their names in place of the deceased tenure holder Bhawani, on the basis of a Will allegedly executed by Bhawani on 28.04.1977. Another set of objections was filed by Ram Kumar, S/o Shyam Behari claiming mutation over the property in question on the basis of another alleged Will dated 18.05.1977. In addition to the aforesaid two claimants, namely, petitioners and Ram Kumar, two other set of claimants, namely Ramdin and Ram Swarup also filed objections claiming therein that they are entitled to get their names mutated over the property in dispute in place of the deceased tenure holder on the basis of succession in terms of the relevant provisions of U.P.Z.A. & L.R. Act. The matter was contested and after evaluation of the evidence, the Tehsildar passed an order on 27.02.1984, whereby he discarded both the Wills produced by the petitioners as well as Ram Kumar that is the Will dated 18.05.1977 and 28.04.1977. The Tehsildar, thus, ordered the mutation on the basis of succession in the name of the other brothers or heirs of the other brothers of the deceased tenure holder Bhawani.
4. Against the aforesaid order dated 27.02.1984, passed by the Tehsildar mutating the names of the persons concerned on the basis of succession, two appeals were preferred under Section 210 of the U.P. Land Revenue Act; (i) by the petitioners and (ii) by Ram Swaroop. Both the appeals were dismissed by the Sub Divisional Officer by means of a common judgment and order dated 28.03.1984.
5. Against the aforesaid two orders dated 27.02.1984 and 28.03.1984, passed by the Tehsildar and Sub Divisional Officer respectively, the petitioners preferred revision petition under Section 218 of U.P. Land Revenue Act before the learned Additional Commissioner concerned. The Additional Commissioner also dismissed the revision petition by means of the order dated 18.09.2003.
6. In this petition, thus, these three orders dated 18.09.2003, 28.03.1984 and 27.02.1984, passed by the Additional Commissioner, Sub Divisional Officer and the Tehsildar are under challenge.
7. Admittedly, in the mutation proceedings since no right or title between the parties are decided hence, ordinarily writ petition under Article 226 of the Constitution of India against the orders passed in the mutation proceedings is not maintainable and is generally not entertained.
8. Learned counsel for the petitioners has, however, relied upon a judgment in the case of Smt. Sangeeta vs. Additional Commissioner, (Administration), Lucknow, Lucknow Division and others, reported in [ 2015 (33) LCD 559 ]. In the aforesaid judgment of Smt. Sangeeta (supra), it has been observed that as regards the maintainability of the writ petition against the orders passed in the mutation proceedings, the writ petition would not be maintainable under Article 226 of the Constitution of India unless the order is found totally without jurisdiction or contrary to the title already decid
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