Akbari & Others vs Virendra Kumar & Others

Sharad Kumar Sharma, J

In relation to the property lying in Khata No. 25, Khasra No. 47/7-13-0 and Khasra No. 116/16-16-15 lying in village Dosani, Pargana Manglaur, Tehsil Roorkee, District Haridwar, it is contended by the petitioner, that the applicant to the proceedings, i.e. Sita Ram, under Sections 34 & 35 of the Land Revenue Act, 1901, have purchased the property by virtue of a registered sale deed dated 13.03.1970 and based under the strength of registered sale deed dated 13.03.1970, the proceedings under Section 34/35 of the Land Revenue Act was drawn, by the purchaser Sita Ram for getting themselves mutated in the revenue records, which was registered as Mutation Case No. 343/1970 'Sita Ram & Others vs. Jinda'. In the application thus preferred by Sita Ram and Others on 02.04.1970 on the basis of the sale deed dated 13.03.1970, it was contended that Jinda was fraudulently recorded in the revenue records, in the proceedings before the Tehsildar. The said proceedings was contested by Late Mr. Rahimuddin, who had filed his objections and after considering the pleadings, which was raised in the objection filed by Late Rahimuddin, the Tehsildar by an order dated 06.11.2008 had dismissed his objection and the application under Section 34/35 filed by Sita Ram on the basis of sale deed dated 13.03.1970, which was also filed in original on record was allowed, on the ground that the objector had not perused his objection properly and no evidence was led by him to prove his objections, consequently the Tehsildar vide his order dated 06.11.1981 had directed to record the name of purchasers, who purchased the property by sale deed dated 13.03.1970 in the revenue records, thus, direction was issued to record Sita Ram and Others, against the property described above. Thus, the application under Section 34/35 was allowed by the order dated 06.11.1981.

Being aggrieved against the order, as mentioned in the order dated 06.11.1981, as passed by Naib Tehsildar on 17.06.1970, Rahimuddin is said to have filed an application for seeking recall of the order dated 17.06.1970, passed in the application registered as Case No. 343 of 1970, by invoking the provisions contained under Section 201 of Land Revenue Act, seeking recall of the order dated 17.06.1970. The said application as preferred by Rahimuddin was rejected as against the order rejecting the application under Section 201, an appeal was filed being Appeal No. 281 of 1977 'Rahimuddin vs. Jinda', which was dismissed by A.D.M. vide his order dated 28.08.1970. Against which a revision was filed in which initially stay was granted. Later on, the application under Section 34/35 of Land Revenue Act was considered by Tehsildar, Roorkee, and has been allowed by Tehsildar by an order dated 06.11.1981. Consequently, the objection of Rahimuddin was rejected as filed by the predecessors of the petitioner.

Being aggrieved against the order dated 06.11.1981, an application under Section 201 was filed seeking recall of the order dated 06.11.1981 the same was also dismissed vide order dated 18.01.1982. Thereafter its Rahimuddin, who filed an Appeal being Appeal No. 10 of 1981 'Rahimuddin vs. Sita Ram' before the Court of Assistant Collector, same has been also dismissed vide order dated 20.02.1982, which was recorded in the revenue records on 5.03.1982.

Being aggrieved against the said order of rejecting the application order under Section 201, Rahimuddin, is said to have preferred an appeal invoking the provisions contained under Section 210 of the Land Revenue Act. The appeal in question came up for consideration before the Court of Pargana /S.D.M. on 20.02.1982 the appeal was dismissed and as a consequence thereto, an application filed under Section 201 seeking recall of the order dated 02.12.1981 was rejected, thereby, confirming the mutation order dated 06.11.1981.

Being aggrieved against the order dated 20.02.1982 and 5.03.1982, passed by the appellate authority, a revision was preferred by Mr. Rahimuddin by invoking the provisions contained under Section 219 of the Land Revenue Act and the revision thus preferred, was registered as Revenue Revision No. 67 of 1982 and 20 of 1982, the same was considered by the revisional court of Additional Commissioner (Administration) and the Revisional Court by the order dated 05.10.1983, as passed in the aforesaid revision had dismissed the revision preferred by Rahimuddin. Against the dismissal of the revision vide order dated 05.10.1983, thereby affirming the order of rejecting the application under Section 201 Rahimuddin is said to have preferred a revision being Revenue Revision No. 324 of 1983-84 'Rahimuddin vs. Virendra Kumar & Others' before the Board of Revenue and giving challenge to the order dated 05.10.1983 as passed by the revisional court of Additional Commissioner (Administration), Meerut Mandal, as well as the order dated 05.03.1982 rendered in Appeal No. 10 of 1981 and the principal order dated 29.10.1982 as rendered in Case No. 19, whereby, the application was rejected by the Court of Tehsildar by an order dated 06.11.1982.

The revision thus preferred against the revisional court's order of the Additional Commissioner, before the Board of Revenue on 09.01.1984, the revision which was preferred before the Board of Revenue at Lucknow was transferred on creation of the State and was renumbered as Revision No. 77 of 2005-06 'Bashir Ahmed & Others vs. Birendra Kumar', the revision came up for consideration before the Court of Additional Chief Revenue Commissioner and the Court of Additional Chief Revenue Commissioner by the impugned order dated 30.01.2009 had dismissed the revision and as a consequence thereto, has affirmed the order passed by the courts below rejecting the application under Section 201 of the Land Revenue Act seeking recall of the mutation order rendered by the courts under Sections 34 & 35 of the Land Revenue Act way back on 17.06.1970 and subsequent order dated 06.11.1981.

Against the impugned orders in question the present writ petition has been preferred at a belated stage, almost after two years of passing the impugned order by the Additional Chief Revenue Commissioner on 30.01.2009 only by filing a writ petition before this Court eon 27.06.2011. When the revision came up for consideration before this Court, this Court had granted time to the petitioner to remove the defects and thereafter the writ petition was never argued thereafter on its merit for admission since the date of its filing on 27.06.2011.

Today when the matter was taken up, this court heard the counsel. Heard the learned counsel for the petitioner so far it relates to the relief claimed for in the writ petition, which is quoted hereunder:

"(a) Issue a writ or order in the nature of certiorari quashing the order dated 06.11.1981, 20.02.1982 (5-3-82), 5-10 -83 and 30-1- 09 (contained as annexure no. 1,2,3 and 5 respectively to this writ petition.

(b) Pass such order which this Hon'ble Court may deem just and proper in the circumstances of the present case.

(c) Award the cost of the petition."

Admittedly, what is reflected from record is that the mutation proceedings initiated by the respondents stood culminated by an order dated 17.06.1970, which was sought to be restored by filing an application under Section 201, which was numbered as Application No. 343 of 1970.

An application under Section 201 has been rejected concurrently by all the courts below and as such had affirmed the order of mutation dated 17.06.1970, ultimately the issue of recording the name of purposes of sale deed dated 13.03.1970, stood finally allowed by the order dated 06.11.1981.

It is too late in a day now to consider the propriety of an application filed under Section 201 in the proceedings, which has been decided as back as on 17.06.1970, whereby, it has resulted into the rejection of the application of the petitioner seeking recall of the order of mutation passed under Sections 34 & 35 of the Land Revenue Act. Even otherwise also, the effect of the order by mutation dated 17.06.1970 and 06.11.1981 would not be having an effect on determining a title over the property, as the proceedings under Sections 34 & 35, it is a settled law that they are proceedings, which are summary in nature and it does not determine a title of the party to the lis, as the entries made as a consequence of the orders passed under Sections 34 & 35 they are only fiscal in nature as it for the purposes which determines as to the person who would be responsible to pay the land revenue, which is payable against the land, which is a subject matter of proceedings under Section 34 of the Land Revenue Act. Paragraphs 8, 9 and 18 of the judgment 'Smt. Manorama Devi and Others vs. Board of Revenue U.P. Lucknow and Others' as reported in 2004 (97) RD 696 has been quoted hereunder for reference:

"8. "The main contention of the petitioners is that the proceedings under Sections 33/39 of the Land Revenue Act are summary in nature, therefore, the correction of entries in the said proceedings was not legally maintainable and that the long standing entries should not have been corrected. In support of their contention regarding maintainability of the writ petition, the petitioners have relied on the Ruling of the Allahabad High Court in the case of 'Tauzi-UI-Haq and others v. Board of Revenue and others.' In the present case, as already narrated above, it has been found by the Board of Revenue that the name of the applicant-respondent no.3 Smt. Kunwari Devi was found to have been left by slip of pen and without order of the Competent Court. In para No.19 of the case law, the High Court of Allahabad has observed that "But from the facts in the present case it would be evident that the application for correction of entries is not legally maintainable and attracts the abuse of the process of the Court, referred to in Appendix X of the U.P. Revenue Court Manual. The error in the revenue entries of which correction can be sought should be obvious one and particularly of a clerical nature." In the instant case, the correction ordered by the Assistant Collector vide his order dated 22.9.1990 was purely of a clerical nature, especially because the entries in the name of applicant-respondent no.3 in the disputed Khatas were existing from before and her name has been left in the subsequent Khataunis without the order of the Competent Court, therefore, the Board of Revenue has rightly observed that the mistake had occurred by slip of pen and the Assistant Collector has passed a legal order. I am unable to take a different view in the matter. The case-law referred to by the learned counsel for the petitioners is of no avail to the petitioners, rather the same supports the case of the respondent no.3, Smt. Kunwari Devi.

The learned Counsel for the petitioners has also relied on the ruling in the case of M/s Mahalakshmi Land and Finance Company Pvt. Ltd. v. Board of Revenue, U.P. Lucknow and others, in which similar view has been taken by the Allahabad High Court and it has been observed that section 33 of the Land Revenue Act stipulates correction of errors and not declaration of title. The learned Judge has held in para 8 of the said judgment that the Member, Board of Revenue, ignoring the earlier orders passed on regular side by Ceiling Authorities and the Board of Revenue has passed an order which not only sets at naught those orders but also decides title without giving an opportunity of hearing. The learned Member could not have gone beyond the jurisdiction that sections 33/39 of the U.P. Land Revenue Act provides. It is only to correct clerical errors and that too after giving an opportunity of hearing. It has also been observed by the learned Judge that "Here specifically it is so called correction in the record of rights. In the instant case also, the Assistant Collector, Ist Class, Kotdwar has corrected the Annual Register on the basis of previous Khatauni. The learned Judge further held in para 11 that "there is no real dispute between the parties and the only question is whether any accidental or clerical error was made in the previously prepared register. In the present case, the name of respodnent no. 3 Kunwari Devi was recorded in the Khatauni of the previous years; but due to clerical or accidental erros, her name could not find place in Patwari Khataunis, therefore, correction of clerical error alone has been ordered by the Assistant Collector Kotdwar. By the impugned order, the Assistant Collector Kotdwar has not decided any title of the petitioners or of the respondent no. 3. Therefore, this ruling too is of no avail to the petitioners because the learned Single Judge has held that the High Court would interfere, where they are not restricted to question of possession but also decide the question of title. The case of "Rudrapratap and another v. Board of Revenue, U.P. and others", relied on by the learned counsel for the petitioners is also of no avail to the petitioners. In that case, reference was made to the case of Jaipal Minor v. The Board of Revenue, U.P. Allahabad, and it has been held by the High Court that "mutation proceedings ordinarily relate to the question of possession and do not decide the question of title for which there is a separate remedy by way of a suit and as such the High Court should not interfere in the order assessed in mutation proceedings. But it was also observed in that case that this consideration should not be applied in cases where the question of title is also decided in mutation proceedings."

As has been mentioned earlier, in the present case, in the correction proceedings only clerical error was ordered to be corrected and it was not a case deciding title of the parties, therefore, this case law is also not helpful to the petitioners.

A perusal of the above provision in section 40-A would show that a person aggrieved by the order passed in the correction proceedings under section 33/39 of the U.P. Land Revenue Act can challenge it on regular side and judgment of Court shall over-ride the order passed in correction proceedings. Moreover, in the case of "Jaipal v. Board of Revenue, U.P. Allahabad and others" a Division Bench of the Allahabad High Court, in a writ petition under Article 226 made against the order of Board of Revenue entering name of certain person in record of rights has observed that "it has been the consistent practice of Allahabad High Court not interfere with orders made by the Board of Revenue in cases in which the only question at issue is whether the name of the petitioner should be entered in the record of rights. That record is primarily maintained for revenue purposes and an entry therein has reference only to possession. Such an entry does not ordinarily confer upon the person in whose favour it is made any title to the property in question." Ultimately, the writ petition has been dismissed."

In that view of the matter, this Court is of the view that the proceedings, which is impugned in the present writ petition rejecting the application under Section 201 of the Land Revenue Act they are summary in nature and they are not determining the title of the parties to the proceedings, which would always be a subject matter of the challenge as per the procedure provided under Section 40A of the Land Revenue Act.

Consequently, this Court does not find any merit in the writ petition and the same is accordingly dismissed.