Back
ALLAHABAD HIGH COURT
Ram Surat Ram (Maurya), J.
Ibrahim Khan - Appellant
Versus
Additional Collector (Administration) Lucknow & 6 Others - Respondent
Writ Petition No. (M/S) - 2652 of 2006
Decided On : 19-02-2016
Mutation Proceeding - U.P. Land Revenue Act, 1901 - Section 34, Section 40 - Summary of Acts and Sections: The court discussed the provisions of Section 34 and Section 40 of the U.P. Land Revenue Act, 1901, which require reporting of succession or transfer of possession and settlement of disputes based on possession. The court emphasized that possession for mutation proceedings must be lawful and that a rank trespasser is not entitled to mutation. The court also cited the judgment of the Supreme Court in Narayan Laxman Patil Vs. M/s Gala Construction Company Pvt. Ltd. And others, 2016 (130) RD 159 (SC) to support its interpretation of lawful possession.
Fact of the Case:
The dispute involved mutation proceedings under the U.P. Land Revenue Act, 1901, related to the mutation of names over a plot of land. The petitioner and respondent were contesting the mutation based on conflicting claims of succession and transfer of possession.
Finding of the Court:
The court found that the mutation orders were based on unauthorised and illegal grounds, as the alleged will and sale deed were deemed void. The court also dismissed the petitioner's argument that the orders were ex parte, stating that the petitioner had the opportunity to appear before the Naib-Tahsildar but failed to do so.
Issues: The key issues included the validity of the mutation orders based on the alleged will and sale deed, the jurisdiction of the Naib-Tahsildar to adjudicate the validity of the documents, and the maintainability of the recall applications filed by the respondents.
Ratio Decidendi: The court's decision was based on the interpretation of the U.P. Land Revenue Act, 1901, particularly Sections 34 and 40, emphasizing the requirement of lawful possession for mutation proceedings. The court also relied on the judgment of the Supreme Court in Narayan Laxman Patil Vs. M/s Gala Construction Company Pvt. Ltd. And others, 2016 (130) RD 159 (SC) to support its interpretation of lawful possession.
Final Decision: The writ petition was dismissed, affirming the Naib-Tahsildar's decision to set aside the mutation orders and the subsequent recall applications, and upholding the jurisdiction of the Naib-Tahsildar to adjudicate the validity of the documents.
Ram Surat Ram (Maurya), J.
1. Heard Sri M.A. Khan, Senior Advocate, assisted by Sri Mohiuddin, for the petitioner and Sri U.S. Sahai and Sri N. K. Seth, for the contesting respondents-3 and 4.
2. The writ petition has been filed against the orders of Naib-Tahsildar dated 07.04.2005 and 10.10.2005 and Additional Collector dated 28.02.2006, in mutation proceeding under U.P. Land Revenue Act, 1901 (hereinafter referred to as the Act).
3. The dispute between the parties is in respect of plot 491 (area 19 biswa, 16 biswansi, 6 kachwansi) of village Farrukhabad Chillawan, pargana Bijnore, district Lucknow, of which, admittedly, Raghubeer Prasad was last recorded tenure holder, who died on 09.04.1985. It is alleged that Smt. Shanti Devi (respondent-5) filed an application (registered as Case No. 56/287/94) under Section 34 of the Act, for mutation of her name over the land in dispute, on the basis of unregistered will dated 02.09.1984, allegedly executed by Raghubeer Prasad, in her favour. Naib Tahsildar allowed the mutation application, by order dated 02.12.1994.
4. Smt. Shanti Devi, thereafter, executed a sale deed dated 17.12.1996 of the land in dispute in favour of Ibrahim Khan (the petitioner). Then, the petitioner filed an application (registered as Case No. 381/252/97) under Section 34 of the Act, for mutation of his name over the land in dispute, on the basis of sale deed dated 17.12.1996, which was allowed by Naib-Tahsildar by order dated 02.01.1999.
5. Upendra Kumar Verma and Surendra Kumar Verma (respondents-3 and 4) (hereinafter referred to as the respondents) filed separate applications under Section 201 of the Act, on 07.05.2004 before Naib-Tahsildar, for recalling, orders dated 02.12.1994 and 02.01.1999 and rehearing aforementioned mutation cases, claiming that they were sons of Raghubeer Prasad and are his only heirs and alleged will set up by Smt. Shanti Devi was forged and fabricated document. Naib-Tahsildar gave opportunity to the parties to file their objection, evidence. Notice was served upon Smt. Shanti Devi through publication but she did not appear. The petitioner contested the applications and filed his documentary evidence and examined Ibrahim Khan and Shyam Lal as witnesses. The respondents filed various documents and examined Bharat Singh and Ram Nath as witnesses. Naib-Tahsildar heard oral arguments of the parties on 21.12.2004 and permitted then to file written arguments also. They also filed written arguments. Naib-Tahisldar, by impugned order dated 07.04.2005, recalled the orders dated 02.12.1994 and 02.01.1999. He further found that Smt. Shanti Devi or the petitioner did not file alleged will dated 02.09.1984 either before passing of the order dated 02.12.1994 or thereafter nor examined attesting witness of that will. Smt. Shanti Devi (respondent-5) belonged to another caste and did not belong to the family of Raghubeer Prasad as such alleged will dated 02.09.1984 was surrounded with suspicious circumstances, in as much as Raghubeer Prasad had two sons and his wife and there was no reason for him to execute will in favour of an out sider. Order dated 02.12.1994, passed on the basis of alleged will dated 02.09.1984, was liable to be set aside. The respondents specifically alleged that Smt. Shanti Devi was a fake and impostor lady. These allegations have not been denied as such it shall be deemed to be admitted. Various efforts made by the Court to effect service on Smt. Shanti Devi failed. Smt. Shanti Devi had no right over the land in dispute as such she had no right to sell it and sale deed dated 17.12.1996 executed by her was void. The order dated 02.01.1999 passed in Case No. 381/252/97 on its basis was also liable to be set aside. From evidence on record, it was proved that Raghubeer Prasad, recorded tenure holder died on 09.04.1985 and his wife Smt. Leela Devi died on 18.03.2002, the respondents were their sons and only heirs under Section 171 of U.P. Act No.1 of 1951. On these findings,
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
