Munni Devi & Another vs Nutan Singh & Others

Sharad Kumar Sharma, J

The challenge in the writ petition is to the orders passed by the Additional Commissioner Kumaon Region, Nainital on 06.10.2016 and also to the order dated 26.09.2015 passed by the Assistant Collector. In the proceedings, which were initiated under Section 34 to be read with Section 35 of the Land Revenue Act of 1901, since in the case at hand the principal tenure holder Chandan Singh, who died on 01.01.1999, it is contended in the pleadings that he had transferred the rights to one Heera Devi wife of Late Mr. Chandan Singh. Heera Devi also met with the sad demise on 24.02.2009. The petitioner claims that after her death he was recorded in the revenue records.

In the meantime, the another lady, i.e. respondent no. 1 herein, started claiming herself to be the wife of actual wedded Late Chandan Singh on the basis of the Will. Her claim to be recorded as such was rejected on 20.07.2001. Consequently, the proceedings were initiated under Case No. 304 and 136 of 2012-13, which was objected by Heera Devi by filing an objection on 03.09.2013. The proceedings, which were initiated under Section 34/35 inter se between the petitioner and the respondents, who were claiming their respective rights to have their right derived from Late Chandan Singh is a matter which is legally required to be adjudicated in the regular proceedings and no right or title could be determined of either of the parties based on the findings which are recorded in a summary proceedings under Section 34 read with 35 of the Land Revenue Act of 1901, which are fiscal proceedings only for the purposes of fixation of liability for the payment of the dues payable to the Government. Since the present proceedings are emanating from Section 34 to be read with Section 35, as decided by the Assistant Collector by an order dated 03.09.2013 and which is ultimately culminated to its finality by the order of the revisional court, this Court is of the view that in case if there is to be an inter se determination of right pertaining to the rival claim of the petitioner over the estates of Late Chandan Singh based on their rival claim as wife and the respondent emanating from the title, which they acquired stands divested to them since allegedly claiming being the wives of Late Mr. Chandan Singh, which Court is of the view that Section 33 and 34, since being a summary proceedings, they cannot be utilized as a Forum or a platform for deciding the right when there happens to be a rival claim between the parties to the proceedings, which has to be decided by the regular court, and not by the summary proceedings of mutation.

The said preposition has been settled down by the Coordinate Bench of this Court in a judgment reported in 2004(97) RD 696 'Smt. Manorama Devi & Others vs. Board of Revenue U.P. Lucknow & Others', which reads as under:

"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.

The learned Counsel for the petitioners has lastly relied on the case-law "Roshan Deen v. Preeti Lal, in which supervisory and extraordinary jurisdiction envisaged under Article 227 of the Constitution has been dealt with. In that case, in para 12 of the judgment, the Hon'ble Supreme Court has observed that "the very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The lookout of the High Court, is therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law." I am in full agreement with the view of the Hon'ble Apex Court. In the present case, had the Board of Revenue not confirmed the order of the Assistant Collector, then, in my opinion, injustice would have resulted to the respondent No. 3, who was admittedly recorded a Bhumidhar in the earlier revenue records, but due to slip of pen, her name could not be shown in the Khatauni prepared by the Patwari for subsequent years and her name was omitted without order of the Competent Court. Therefore, this case-law is of no avail to the petitioners.

Section 39 deals with corrections of mistakes in annual register and section 40 deals with settlement of disputes as to entries in annual register. Both these sections are reproduced hereunder:

Correction of mistakes in the annual register-

(1) An application for correction of any error or omission in the annual register shall be made to the Tehsildar.

(2) On receiving an application under sub-section (1) or any error or omission in the annual register coming to his knowledge otherwise, the Tehsildar shall make such inquiry as appears necessary and then refer the case to the Collector, who shall dispose it of, after deciding the dispute in accordance with the provisions of section 40.

Provided that nothing in this sub-section shall be construed to empower the Collector to decide a dispute involving any question of title.

(3) The provisions of sub-sections (1) and (2) shall prevail, notwithstanding anything contained in the U.P. Panchayat Raj Act, 1947.

Settlement of disputes as to entries in annual register-

(1) All disputes regarding entries in the annual registers shall be decided on the basis of possession.

(2) If in the course of inquiry into a dispute under this section the Collector or the Tehsildar is unable to satisfy himself as to which party is in possession, he shall ascertain by summary inquiry who is the person best entitled to the property and shall put such person in possession.

40-A. Savings as to title suits-No order passed under section 33, section 34, section 39, section 40, section 41, or section 54 shall bar any suit in a competent Court for relief on the basis of a right in a holding."

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."

Another judgment, which is reported in 1997 (I) Vol. XXVI

437 'Sankalchan Jay Chand Bhai Patel & Others vs. Vithalbhai Jay Chand Bhai Patel & Others' deals with the same controversy. Paragraph 7 of which is quoted hereunder:

"7. It is settled law that mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the property and that the right, title and interest as to the property should be established de hors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein. Therefore, the view taken by the learned single Judge, with due respect, is not correct in law. The civil suit is clearly maintainable. The High Court rightly granted injunction restraining the appellants from alienating the land. Even otherwise, section 52 of the Transfer of property Act lis pendense always stands in the way of purchaser of the land subject to the result in revision."

A reference of paragraph 21 and 27 is also made hereinbelow in a judgment reported in 1998 (1) Vol. XXVIII 'Balwant Singh & Another vs. Daulat Singh (Dead) By Lrs. & Others', which reads as under:

"21. We have considered the rival submissions and we are of the view that Mr. Sanyal is right in his contention that the courts were not correct in assuming that as a result of mutation no. 1311 dated 19.7.54, Durga Devi lost her title from that date and possession also was given to the persons in whose favour mutation was effected. In Smt. Sawarni's case, Pattanaik J., speaking for the Bench has clearly held as follows:-

"Mutation of a property in the revenue record does not create or extinguish title nor has it nay presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment."

In the circumstance, we are of the opinion that the trial court erred in assuming that by Mutation No. 1311, the widow divested herself of the title to the suit property by treating the mutation as gift and conveying title. Further it has not applied uniform test in appreciating the mutation entries. In one place, the trial court has accepted mutation entries in toto even for conveying title but in the other place, the trial court was no prepared to accept the mutation entries by expressing some doubt about it. It is to be state that this court in Gurbaksh Singh v. Nikka Singh (1963 Supp. (1) SCR 55) has held that entries in mutation must be taken as correct unless the contrary is established. Here the trial court has shifted the burden on the appellants to prove the entries as correct. The trial court has failed to apply the same yardstick that it has applied to Mutation No. 1311 to Mutation No. 1348. Assuming for the sake of arguments, that Mutation No. 1348 was on the basis of misunderstanding of the judgment in the earlier proceedings, that having been allowed to remain unaltered without challenge, cannot be brushed aside as worth nothing. Anybody affected by such entries should have challenged the same as provide under the law. In the absence of that, the entries cannot be ignored. Be that as it may, we have already noticed that mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue. That being the position. Mutation No. 1311 cannot be construed as conveying title in favour of Balwant Singh and Kartar Singh or extinguishing the title of Durga Devi in the suit property. Consequently, the title to the suit property always vested with the widow notwithstanding the Mutation No. 1311. Viewed in this manner, the decision in the earlier proceedings namely, decree in Suit No. 194/55 even assuming operates as res judicata, will not be of any avail to the contesting respondents, (plaintiffs) in the present suit because the reliefs sought in the prior proceeding was for a simple declaration that the `mutation gift' of 1954 would not affect the reversionary rights of reversioners. As noticed already, mutation entires will not convey or extinguish title in the property. Therefore, under Mutation No. 1311 neither Balwant Singh and Kartar Singh acquired title nor Durga Devi's title in the property got extinguished. The earlier court proceedings did not and could not convey title in favour of reversioner, as the relief sought was for a simple declaration as mentioned above. If no title as such was passed on under the alleged `mutation gift', the limited right of the widow in the property would get enlarged on the coming into force of the Hindu Succession Act, 1956."

In view of the above, this writ petition is not maintainable and the same is, accordingly, dismissed with the liberty open to the petitioners to get their rights declared by approaching before the competent court for determination of her rights.

Hence, the writ petition is dismissed with the aforesaid liberty subject to determination of their right and title by the competent regular court.

However, there would be no order as to cost.