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2014 Supreme(UK) 411
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Alok Singh, J.
Bhuwan Chandra Sah and another - Petitioners
Versus
Additional Commissioner Kumaon Uttarakhand and others - Respondents
Writ Petition No. 1313 of 2003 (M/S)
Decided on : 16.4.2014
Advocate Appeared:
Mr. B.C. Pandey, Senior Advocate assisted by Mr. Siddhartha Sah, Advocate for the petitioners.
Mr. M.C. Pandey, Senior Advocate assisted by Mr. Devesh Upreti, Advocate for respondents.
Mr. Jagdish Singh Bisht, Advocate for respondent Nos. 10, 12 and 13.
Mutation proceedings are summary in nature and do not decide complicated questions of title. Substantive rights and title of ownership can only be decided by a competent court in appropriate proceedings.
Headnote:
Mutation - Family Settlement - U.P. Land Revenue Act, 1901, Sections 34, 35, 38
Fact of the Case:
The petitioners sought mutation of property based on an oral family settlement and subsequent memorandum of family settlement dated 1935. The mutation application was rejected, leading to the present petition.
Finding of the Court:
The court held that mutation proceedings do not decide the right of parties and that parties are at liberty to approach the regular court to decide the title. As the mutation order did not disturb any substantive right of the parties, the writ petition was dismissed.
Issues: The key issue was whether the rejection of the mutation application was justified under the U.P. Land Revenue Act, 1901.
Ratio Decidendi: The court emphasized that mutation proceedings are summary in nature and do not decide complicated questions of title. It also highlighted that mutation entries are relevant for fiscal purposes, and substantive rights and title of ownership can only be decided by a competent court in appropriate proceedings.
Final Decision: The writ petition was dismissed, and the petitioners were advised to file a regular suit for getting their title decided pursuant to the alleged mutual partition and memorandum of family settlement.
Petitioners have invoked Articles 226/227 of Constitution of India assailing the orders dated 15.09.2003, 11.06.1998 and 22.01.1999 whereby mutation application, moved by the petitioners herein to mutate the name of the petitioners in the revenue record over the property in dispute pursuant to the oral family settlement and subsequent memorandum of family settlement dated 30th September, 1935, was rejected by the Tehsildar and appeal and revision arising therefrom were also came to be dismissed.
2. Brief facts of the present case, inter alia, are that name of Harkishan Lal Sah was recorded in the revenue record as the owner in possession of the property in question. Undisputedly, Shri Harkishan Lal Sah had three brothers, namely, Bhawani Dass Shah, Moti Ram Shah and Kundan Lal Shah. It is stated before me that name of Shri Harkishan Lal Shah was recorded in the revenue record in a representative capacity being elder brother / karta, since, in fact, property was joint Hindu family property of all the four brothers. It is further stated that after the death of Harkishan Lal Shah in the year 1926 sons of Harkishan Lal as well as Bhawani Dass Shah, Moti Ram Sah and Kundan Lal Shah all three brothers of Harkishan Lal Shah agreed to partition the property by way of mutual partition. Consequently, as per the oral settlement (partition) different lots were prepared and handed over to different co-owners and ultimately oral partition so effected was reduced in writing in the shape of memorandum of partition in the year 1935.
3. An application seeking mutation was moved about after 60 years, from the date of memorandum of partition which was initially rejected by the learned Tehsildar vide order dated 26.11.1996, however, appeal arising therefom was allowed by the Assistant Collector, Ranikhet vide order dated 10.09.1997 remanding the mutation case to decide it afresh in accordance with law. After the remand, learned Tehsildar once again dismissed the mutation application vide impugned order dated 11.06.1998, holding that petitioners could not prove themselves successors of Shri Harkishan Lal Shah. Appeal arising thereform was dismissed vide order dated 22.01.1999 and thereafter revision arising thereform was dismissed vide order dated 15.09.2003. Hence present petition.
4. I have heard Mr. B.C. Pandey, Senior Advocate assisted by Mr. Siddhartha Sah, Advocate for the petitioners and Mr. M.C. Pandey, Senior Advocate assisted by Mr. Devesh Upreti, Advocate for the respondents and have carefully perused the record.
5. Learned Senior Counsel, appearing for the respondents, raised preliminary objection that petition under Articles 226 / 227 of the Constitution of India, assailing the orders passed in mutation proceedings should not be entertained in view of the availability of efficacious alternate remedy for filing suit for declaration of title. Learned counsel for the respondents has placed reliance on the judgment passed by this Court in the case of Virendra Singh Vs. Late Sri Ram Singh and others reported in 2009 (2) U.D. 627.
6. On the other hand, learned Senior Counsel, appearing for the petitioners, vehemently argued that once report of succession or transfer is made to the Tehsildar under Section 34 of the U.P. Land Revenue Act, learned Tehsildar is duty bound to hold inquiry and to pass appropriate order on the mutation application so filed as provided under Section 35 of the Act. Further submits that in the present case petitioners were non suited only on the ground that name of the Harkishan Lal Shah was recorded in the revenue record and petitioners could not prove themselves to be legal heirs of Harkishan Lal Shah.
7. Learned counsel for the petitioner further contends that family settlement shall be treated as a transfer as provided under Section 34 of the Act. Further submits in the present case, learned Tehsildar did not bother to see that mutation was being sought on the basis of transfer (family settlement) and n
