The appellate court cannot determine the validity of a document when the matter has been remanded, and the authority of the Additional Municipal Commissioner in mutation proceedings is upheld.

JUDGMENT :

1. Heard Sri Tarun Agrawal, learned counsel for the petitioner, Sri Vineet Sankalp, learned counsel appearing for respondent no. 1 and Sri Prashan Pandey, learned counsel representing for respondent nos. 2 to 7 and perused the record.

2. Pursuant to a registered sale deed dated 29.6.2009, the petitioners have applied for mutation of their names in the records of Nagar Nigam, Varanasi in place of the vendor namely Lalji in respect of the property transferred to them.

3. It is contended that the Additional Municipal Commissioner (Zonal Officer), Varanasi, by order dated 30.12.2009, recorded his satisfaction that during the course of spot inspection, the petitioners were found in possession and in so far as the record is concerned, the petitioners have claimed mutation on the basis of aforesaid registered sale deed. The Additional Municipal Commissioner also recorded that the objection filed by the private respondents to the effect that no partition has taken place in respect of the property in dispute and that Lalji had surrendered his rights in the property after receiving money of his share, could not stand established. Accordingly, a conclusion was drawn that name of the petitioners can be recorded over half of the property and in case objectors want to get their rights adjudicated upon, they may get the same done from the competent civil court.

4. The aforesaid order dated 30.12.2009 was challenged by the respondents by means of a statutory appeal No. 16 of 2010 under Section 472 of U.P. Municipal Corporations Act, 1959 and the appellate court i.e. Judge, Small Causes Court, Varanasi, by its order impugned dated 9.8.2016, remanded the matter to the Additional Municipal Commissioner, (Zonal Officer), Varanasi.

5. Aggrieved by the order of remand, the petitioners filed Second Appeal No. 124 of 2016 under Section 476 of the aforesaid Act before the District Judge, Varanasi which has been dismissed by Additional District & Sessions Judge (E.C. Act), Varanasi, vide order dated 02.08.2017 confirming the order dated 09.08.2016.

6. Learned counsel for the petitioners submits that the first order impugned dated 9.8.2016 was passed by accepting a document produced by the respondents, which was termed to be a family partition in the family of vendor-Lalji. He further submits that while recording observations/findings regarding alleged family partition, the matter was remanded by the Judge, Small Causes Court directing the Additional Municipal Commissioner to examine the same and decide the matter of mutation again. He further submits that the Judge, Small Causes Court is not competent to record any finding regarding title of the property and, therefore, direction for consideration of the alleged family settlement was beyond the jurisdiction of the appellate court.

7. Sri Agrawal further submits that since the order of remand was illegal, the petitioners filed the aforesaid second appeal in which the appellate court has recorded clear findings holding alleged family settlement as a valid document. He emphasised on para-11 of the impugned order of the second appellate court dated 2.8.2017, which reads as under:-

8. He further submits that once validity of the family settlement has been upheld by the second appellate court, nothing remains to be decided by the Additional Municipal Commissioner or to look into the matter of the mutation as the superior Court has already recorded its finding on merits.

9. Sri Agrawal further submits that in so far as the family settlement is concerned, its title was ^^;knk'r ifjokfjd le>kSrk** i.e. memo of family settlement done amongst all family members, and therefore this document is liable to be impounded for want of sufficient stamp duty. He further submits that in so far as substantive rights of the parties qua the property transferred by Lalji are concerned, admittedly, there is a civil suit being O.S. No. 817 of 2009, whereby the private respondents have claimed a decree for cancellation of sale