RAJENDRA SINGH AND ANOTHER vs MAHENDRA SINGH

Manoj K. Tiwari, J

By means of this petition, under Article 227 of the Constitution of India, petitioners have challenged the orders dated 29.11.2012, 17.12.2013 and

26.08.2015 passed by learned Tehsildar Kotdwar, learned Assistant Collector, 1st Class Kotdwar, Garhwal and learned Commissioner, Garhwal

Division, Pauri.

Brief facts of the case are as follows:

Mahendra Singh (respondent) moved an application for mutation under Section 34 of the U.P. Land Revenue Act before Tehsildar Kotdwar on

03.07.2006, seeking mutation of his name, on the basis of a WILL alleged to have been executed by Smt. Kunwari Devi, who passed away on

21.02.2006. Learned Tehsildar, Kotdwar allowed the said application, after hearing the parties vide order dated 29.11.2012. Petitioner challenged the

said order by filing an appeal before learned Assistant Collector, 1st Class, Kotdwar, which was registered as Revenue Appeal No. 14 of 2012-13.

The said appeal was dismissed by learned

Assistant Collector vide judgment and order dated 17.12.2013. Thereafter, petitioner filed a revision before the learned Commissioner Garhwal

Division, Pauri, which was registered as Revision No. 09 of 2013-14. Learned Commissioner dismissed the said revision vide judgment and order

dated 26.08.2015. Thus, feeling aggrieved by these orders, petitioners have approached this Court, under Article 227 of the Constitution of India.

Learned counsel for the petitioners submits that respondent had relied upon a Will alleged to have been executed in his favour by Smt. Kunwari

Devi on 04.11.1991 however, mutation has been ordered on the basis of a different will dated 02.04.1991. Thus, according to him, the orders passed

by the revenue authorities are unsustainable.Â

4. Learned counsel for the respondent, on the other hand, submits that respondent through a separate application had submitted registered Will

dated 02.04.1991 before the Tehsildar and this fact is corroborated by the objection dated 04.09.2006 filed by the petitioner in which he disputed

validity of both the Wills i.e. 02.04.1991 and 04.11.1991. Thus, according to him, the contention of learned counsel for the petitioner is without any

substance. A perusal of the order passed by learned Tehsildar, Kotdwar, and order of appellate authority and the revisional authority indicates that the

Will dated 02.04.1991 was duly proved and the applicant (respondent herein) had not placed reliance upon the Will dated 04.11.1991. Since the

findings recorded by Tehsildar have been confirmed by Appellate and Revisional Authorities, therefore this Court is not inclined to interfere with such

finding.

Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person

in whose favour mutation is ordered to pay the land revenue. The proceedings under Section 34/35 of Land Revenue Act 1901 are summary in nature,

which are subject to Section 40-A of the said Act. Even otherwise also, the question of title cannot be decided in the summary proceedings under

Section 34/35 of the Act and the petitioners have the remedy to file declaratory suit under Section 229-B of U.P.Z.A. & L.R. Act before a Revenue

Court. Hon’ble Supreme Court in the case of Ram Badan Rai and others vs. Union of India and others reported in (1999) 1 SCC 705 has

considered the nature of proceedings under U.P. Land Revenue Act 1901. Paragraph no. 56 of the said judgment is extracted below:Â

“We shall briefly refer to the scheme of the U.P. Land Revenue Act, 1901. Section 32 in Chapter III of the abovesaid Act of 1901 deals with

record of rights and Sections 39 and 40 deal with correction of mistakes and settlement of disputes. Under Section 54, for revising maps and records,

the Assistant Records Officer shall cause survey and map correction to be made after issue of notice to affected parties. Orders passed by the

Assistant Records Officer under Section 54(6) are final subject to appeal under Section 210 and revision under Section 219. Section 40(2) permits the

Collector/Tahsildar to decide questions of possession and if he is unable to satisfy himself as to which party is in possession, he shall ascertain by

summary enquiry who is the person best entitled to the property and shall put such person in possession. Section 40-A, however says that no order

under Sections 33, 35 , 39, 40, 41 or 54 shall bar any suit in a competent court for relief on the basis of a right in a holding. Section 57 of the Act also

states that entries or decisions shall not affect the right of any person to claim and establish in the “civil court†any interest in land which requires

to be recorded in the registers prescribed under Section 32. Therefore, discussion (sic decision) on the question of title if given under the U.P. Land

Revenue Act, 1901, would not put an end to litigation.â€​

Therefore, this Court is not inclined to interfere with the orders impugned in this petition. The writ petition therefore fails and is hereby dismissed.

No order as to costs.Â

However, it is made clear that if petitioner files a declaratory suit before Competent Court, the court concerned shall decide the same, on merits

without being influenced by any observation made in this order.