Mutation does not confer title, and possession as recorded in the revenue record is crucial. Mutation proceedings are summary proceedings and may not have the effect of res judicata in a regular suit for title. The court may entertain a petition under Article 227 of the Constitution of India if there is a jurisdictional or legal error resulting in miscarriage of justice or undue hardship in peculiar facts and circumstances of the case.

Alok Singh, J.

1. Undisputedly, earlier the name and possession of Govind Singh was recorded as bhumidhar with transferable rights in revenue record, after the death of Govind Singh, name of Rajendra Singh, being his natural son, was recorded as bhumidhar with transferable rights in the revenue record; petitioners have purchased land in question vide registered sale deed dated 17.12.2007 from Sri Rajendra Singh, recorded bhumidhar of the property in question; having purchased the land from Sri Rajendra Singh, the petitioners moved an application for mutation under Section 34 of the UP Land Revenue Act; learned Tehsildar, vide order dated 12.11.2009, was pleased to direct mutation in favour of the purchasers from Rajendra Singh i.e. petitioners, herein; feeling aggrieved, respondents, herein, filed an appeal before the Collector, Nainital, it was stated before the appellate court that in fact the respondents, herein, were in actual physical possession of the property in question and have matured their title on the basis of adverse possession, therefore, names of the petitioners ought not have been mutated in place of Rajendra Singh, vender/bhumidhar with transferable rights; learned Collector, vide order dated 6.5.2013, having observed that mutation could only be made on the basis of actual physical possession on the spot, set aside the mutation order dated 12.11.2009 passed by Tehsildar mutating the names of the petitioners and remanded the matter to the Tehsildar for passing fresh order in view of the observations made by the learned Collector in the order dated 6.5.2013; Petitioners, herein, having come to know about the order dated 6.5.2013, filed a revision before the Member, Board of Revenue with an application for condonation of delay. Learned Member, Board of Revenue, vide order dated 19.4.2013, having observed that he found no error in the judgment of the appellate authority, declined to condone the delay in filing the revision. Feeling aggrieved, the petitioners have approached this Court by way of present writ petition.

2. I have heard Mr. M.C. Kandpal, Senior Advocate assisted by Mr. Maneesh Bisht, learned counsel for the petitioners and Mr. Servesh Agarwal, learned counsel for the respondents, and have carefully perused the record.

3. This is the settled position of law that mutation does not confer any title and it is the source of the title, which has to be seen and mutation proceeding under Section 34 of the UP Land Revenue Act is a summary proceeding and any order passed in a summary proceeding shall not have the effect of res judicata in a regular suit for title. Therefore, ordinarily, while exercising the jurisdiction under Article 227 of the Constitution of India, this Court should be slow in entertaining any petition arising out of mutation proceeding and parties should be left to approach the regular court for getting their title decided. However, there is a caveat to this principle i.e. where this Court finds that courts below have committed jurisdictional or legal error in passing the mutation order which has resulted in the miscarriage of justice or undue hardship in peculiar facts and circumstances of the case this Court may entertain the petition under Article 227 of the Constitution of India to do complete justice.

4. Undisputedly, earlier the name of Govind Singh and after his death, name of his son Rajendra Singh remained recorded in khatauni (record of right) as well as in khasra (record of possession). In my considered opinion, possession shall be deemed, in ordinary course, with the person whose name and possession is recorded in the revenue record unless proved otherwise.

5. In the present case, mutation made in favour of the petitioners, purchasers from Rajendra Singh, was upset by the appellate court accepting the submission of the respondents that in fact the respondents were in actual physical possession and have matured their title on the basis of adverse possession. In my conside