Abhi Ram and Another vs Mahendra Singh and Another

V.K. Bist, J.—By means of this writ petition the petitioner has sought the writ of certiorari quashing the impugned judgment and order dated 12.02.1999 passed by the Tehsildar, Haridwar in case No. 25/99 u/s 34/ 35 of U.P. Land Revenue Act 1901, whereby the name of the respondent was directed to be mutated in the revenue records on the basis of registered Will dated 19.04.96 executed by late Shri Baburam in favour of the respondents Mahendra Singh and Harish Chandra and order dated 22.05.99 whereby the restoration application filed by the petitioner was rejected and order dated 31.03.2000 whereby the appeal preferred by the petitioner has also been dismissed by the Assistant Collector 1st class and also the order dated 31.01.08 by which the revision filed by the petitioner was also dismissed. Shri Baburam, Shri Abhi Ram (father of the petitioners) and Shri Kadam Singh (father of the respondents) were brothers. Baburam died issueless.

On 19.04.1996, Late Baburam executed a registered Will in favour of the respondents in respect of land in dispute. Subsequently, on 06.11.1998, he again executed a Will in favour of the petitioners in respect of Khata Khatauni No. 560, Khasra No. 128, Area 1.416 hectares Village Anneki Hetampur, Pargana Roorkee, Tehsil and district Haridwar. Thereafter, on 19.12.1998 Baburam died issueless. On 08.01-1999, respondents filed a mutation Suit No. 25/99 "Mahendra & another Vs. Baburam" pertaining to the land of Baburam before the Court of Tehsildar, Haridwar. In the said suit, the petitioners were not made party. On 12.12.1999, the Court of Tehsildar, Haridwar decided the mutation suit in favour of the respondents ex-parte. When the petitioners came to know about the ex-parte order, they moved a restoration application within a period of seven days before the Court of Tehsildar, Haridwar. The said restoration application was not opposed in writing by the respondents, but they orally opposed the same. On 22.05.1999, the Tehsildar, Haridwar dismissed the restoration application of the petitioner. Aggrieved by the order dated 22.05.1999, petitioner filed Appeal No. 17/1999 "Abhiram Vs. Mahendra Singh & another" before the Court of Assistant Collector First Class, Haridwar, but the same was dismissed by the Court on 31.03.2000. Against the order of Assistant Collector dated 31.03.2000, petitioner filed Revision No. 13/2001-02 "Abhiram Vs. Mahendra Singh & others" before the Court of Additional Commissioner Garhwal Mandal Pauri. The revision filed by the petitioner was also dismissed on 31.01.2008. Aggrieved by the said order, present writ petition has been filed by the petitioners.

The submission of the learned Senior Advocate for the petitioners is that under the law, registration of a Will is not mandatory. He submitted that the registered Will not have a precedence over the unregistered Will. He contended that when the controversy regarding claim arising out of two Wills is there, same ought to be decided after hearing both the parties. He argued that the perverse finding has been recorded by the Court that the respondents have filed their objection to the recall application. He submitted that the view taken by the Court, while deciding the recall application by entering into merit and deciding the propriety of the Will itself, was not the scope available to the Tehsildar, as he was ceased with deciding the application for recall only. It is submitted by the learned Senior Advocate for the petitioners that it is established preposition of law that while considering an application, the Court has to consider only the reasons given in the application and cannot adjudicate the rights on merits and thus, the Tehsildar, while rejecting the application, has exceeded the jurisdiction vested with him u/s 201 of the Land Revenue Act by entering into the merits of the principal proceedings. He argued that the view taken by the Tehsildar that while filing the recall application, the petitioners have not controverted the main application filed by the respondents seeking mutation on the basis of the Will, is a perverse finding because while filing an application for restoration, an objection/written statement to the merits of the application is not required to be seen. He submitted that the judgment rendered on the basis of Will was bad because the theory of Will cannot be accepted as the petitioner is a brother and he was required to be heard. He argued that the entire order is violative of principles of natural justice and the proceedings are vitiated.

On the other hand, learned counsel for the respondents submitted that the writ petition has been filed arising out of the proceedings u/s 34/35 of the U.P. Land Revenue Act, which are summary in nature and the writ petition is not maintainable against the proceedings arising out of the summary proceedings. Learned counsel for the respondents relied upon the judgment reported in Girish Chandra Vs. Apar Ayukt (Prakashan) Garhwal Mandal and Others in which it was held that the mutation proceedings being summary proceedings, no interference can be made in a writ petition, thus the writ petition is not maintainable. He further argued that the registered Will executed by the deceased in favour of the respondent, has been proved by the witnesses before the Tehsildar, Haridwar. He further submitted that the petitioner is placing reliance upon an unregistered Will and an unregistered Will cannot override the effect of the registered Will and infact, the petitioner who is relying upon an unregistered document is a forged one, as the witnesses of the aforesaid Will have also filed their affidavit stating therein that no such Will has been executed in favour of the petitioner. He further submitted that the proclamation was issued and the same is on the record. He argued that the learned Court below recorded concurrent finding of facts in its judgment and therefore, the writ petition is liable to be dismissed.

I have considered the submission advanced by the learned counsel for the parties and have perused the papers available on record.

Restoration application was filed by the petitioner mainly on the ground that before passing the order dated 12.02.1999, he was not heard. The Tehsildar, Haridwar rejected that application on 22.05.1999. While rejecting the said application, the Tehsildar, Haridwar entered into merit of the case and adjudicated the right of the parties. Infact, the Tehsildar, Haridwar should have considered the recall application on its merit. Right of party to be heard is an important right. No person can be denied hearing right before any order is passed against him. The Tehsildar, Haridwar erred in rejecting the application of the petitioner. Higher Courts also did not consider this aspect of the matter. Case law cited by the counsel for the respondents does not apply in the present case as this Court is deciding the case only on the ground of right of hearing/natural justice.

In view of above discussion, the writ petition is allowed. Order dated 12.02.99 passed in suit No. 25/99 "Mahendra Singh & another" Vs. Babu Ram, order dated 22.05.99 passed by the Tehsildar, Haridwar, order dated 31.03.2000 passed by the Assistant Collector, Haridwar in appeal No. 17/99 "Abhiram Vs. Mahendra Singh & another" and the order dated 31.01.08 passed by the Additional Commissioner, Garhwal Mandal, Pauri are quashed. The Tehsildar, Haridwar is directed to decide the case afresh in accordance with law, after hearing all the parties, within a period of two months from the date of production of a certified copy of the order. No order as to costs.