Court No. - 7

Case :- WRIT - C No. - 25296 of 2022

Petitioner :- Vijay Kumar

Respondent :- State Of U.P. And 5 Others

Counsel for Petitioner :- Dileep Kumar Srivastava

Counsel for Respondent :- C.S.C.

Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Dileep Kumar Srivastava, learned counsel for the

petitioner and Sri Abhishek Shukla, learned Additional Chief

Standing Counsel for the State-respondent.

2. Brief facts of the case are that one Smt. Gena Devi @ Gaura

Devi widow of Shaleshar was recorded tenure holder of the plot in

dispute. According to the Petitioner, Gena Devi @ Gaura Devi has

executed unregistered will deed dated 16.06.1997 in favour of

petitioner. Gena Devi @ Gaura Devi has died on 09.04.1998. It is

also mentioned in the writ petition that Gena Devi has also

executed a registered will deed in favour of respondent Nos.5 and

6 on 21.06.1991, which has been cancelled by unregistered will

deed alleged to be executed on 16.06.1997 in favour of the

petitioner. On the basis of registered will deed dated 21.06.1991

mutation was applied by respondent Nos.5 and 6, which was

allowed by the Tehsildar vide order dated 21.05.1998 following

due procedure of law.

3. Petitioner filed a restoration application under Section 201 of

U.P. Land Revenue Act for recalling of the order dated 21.05.1998,

the Naib Tehsildar vide order dated 20.12.2000 recalled the

mutation order dated 21.05.1998 and restored the mutation case on

its original number. Against the order dated 20.12.2000

respondent Nos.5 and 6 filed a revision under Section 219 of U.P.

Land Revenue Act before the Revisional Court on ground that

mutation order dated 21.05.1998 was passed on merit following

due procedure of law as well as on the basis of unregistered will

deed executed by recorded tenure holder Smt. Gena Devi in favour

of respondent Nos.5 and 6. Accordingly, revisional Court vide

order dated 16.08.2003 allowed the revision setting aside the order

dated 20.12.2000. Petitioner challenged the order dated

16.08.2003 through revision before the Commissioner and

Commissioner Basti Division Basti vide order dated 03.03.2021

dismissed the revision hence this writ petition.

4.Stamp reporting Section has reported latchs of 78 days in filing

the writ petition.

5. Counsel for the petitioner submitted that petitioner is claiming

right on the basis of will deed executed by recorded tenure holder

Smt. Gena Devi @ Gaura Devi although will deed is unregistered

one, but without affording opportunity of hearing to the petitioner,

the mutation order has been passed in favour of respondent Nos.5

and 6 who are claiming on the basis of registered will deed

executed by recorded tenure holder Gena Devi @ Gaura Devi, as

such the Naib Tehsildar has rightly set aside ex-parte mutation

order and restored the mutation case for decision afresh on merit.

He further submitted that revision against the order restoring the

mutation case on its original number has been set aside in arbitrary

manner with the finding that earlier order for mutation passed in

favour of respondent Nos. 5 and 6 is on merit. He further

submitted that will deed which is executed in favour of the

petitioner although is unregistered will deed but the earlier will

deed executed in favour of the respondent Nos.5 and 6 has been

cancelled, as such the petitioner is entitled to be recorded on the

basis of subsequent will executed by recorded tenure holder Smt.

Gena Devi. He further submitted that impugned order be set aside

and direction be issued that the mutation case be decided afresh on

merit after affording opportunity of hearing to the petitioner also.

6. On the other hand, learned Additional Chief Standing Counsel

for the State-respondent submitted that the writ petition arises out

of mutation proceeding, which are summary in nature, as such no

interference is required in the matter and writ petition is liable to

be dismissed.

7. I