Petitioners challenged a dismissal of their revision against mutation orders based on disposal of properties via family settlement in summary proceedings.
Petition dismissed holding title issues must be adjudicated in regular forum; no order as to costs.
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Neutral Citation No. - 2024:AHC-LKO:59331
Court No. - 8
Case :- WRIT - B No. - 875 of 2024
Petitioner :- Manoj Rao And Another Respondent :- Board Of Revenue U.P., Lucknow Thru. Its Secretary And Others Counsel for Petitioner :- Pradeep Kumar Tiwari,Suraj Singh Counsel for Respondent :- C.S.C.
Hon'ble Jaspreet Singh,J.
Heard learned counsel for the petitioners. Notice on behalf of respondent nos.1 and 2 has been accepted by the office of Chief Standing counsel.
By means of the instant petition, the petitioners has assailed the order dated 15.03.2024 passed by the Board of Revenue whereby the revision preferred by the petitioners was dismissed affirming the order passed by the S.D.O Khadda District Kushinagar dated 16.02.2018 passed in proceedings initiated under Section 33/39 of the U.P. Land Revenue Act, 1901.
The litigation in between the parties has a chequered history. The property-in-dispute originally belonged to one Sri Narvada Rao(father of the present petitioners). One was Sri Sanjay (respondent no.4) Durga Shankar and Om Prakash (respondent no.5) had claimed rights in the disputed property basing their claim on a family settlement in pursuance whereof Narvada Rao settled the property in favour of the Sanjay, Durga Shankar and Om Prakash. On the basis of the said family settlement, the mutation order was passed in their favour on 17.02.1993.
The present petitioners who are the son and daughter of Narvada Rao had applied for their mutation after the death of their father. Their application was allowed on 28.09.2015. The said order has been brought on record as Annexure-11. Against this order, two sets of application were moved seeking recall of the order. One set of application was moved by the Rajpati Devi and Aneeta Devi (respondent no.7 and 6 respectively) and the other set was moved by Bindu Rao and Seema Rao. The said applications came to be allowed vide order dated 16.02.2018 against which the petitioners had filed the revision before the Board of Revenue which was dismissed by means of the order dated 15.03.2024.
Assailing the two orders the learned counsel for the petitioners
submits that the applications for recall have been allowed on an erroneous assumption that the order passed in favour of the petitioners was exparte. On the contrary the said order was passed after hearing the parties and hence an application for recall was not maintainable. Apart from the fact that the said applications were delayed and no separate application for condonation of delay was moved and in view thereof, the orders cannot be sustained.
Having considered the aforesaid submissions, this Court finds that the orders passed by the S.D.O., Khadda dated 16.02.2018 has been allowed on the ground that there is another set of proceedings which are pending between the parties wherein the order dated 26.04.2000 is in question and still pending. The same reason has been adopted by the Board of Revenue to decline interference in the order passed by the S.D.O, Khadda.
The record further indicates that the core controversy which is in question is regarding the validity of the alleged family settlement said to have been arrived at between Narvada Rao and his nephews (children of his real sister/Bhanja ). On the basis of the said settlement Sanjay, Durga Shankar and Om Prakash got their names mutated and later between 2010 to 2014 all three of them sold the property-in-question in parts. The private respondent nos.3 and 8 to 11 are the purchasers having purchased the property from Sanjay, Durga Shankar and Om Prakash. At this stage, it will be relevant to notice that the instant proceedings have been initiated under Section 33/39 of the U.P. Z.A & L.R Act, 1901 which needless to say are of summary nature. The basic contention of the learned counsel for the petitioners is that the family settlement which the basis of the claim of Sanjay, Durga Shankar and Om Prakash as well as their successor in interest, if is found to be legally in operative then further acts including the sale deeds executed by them also would be void.
A specific pointed query was put to learned counsel for the petitioners as to whether the sale deeds executed by Sanjay, Durga Shankar and Om Prakash had been challenged by the petitioners who are the children of the Narvada Rao, learned counsel for the petitioners has submitted that till date no such proceedings have been initiated. In the aforesaid backdrop where the private respondents are claiming their rights on the basis of sale deeds and though sale deeds have been yet not been assailed and the issue involved is the validity of the alleged family settlement said to have been executed between Narvada Rao and his nephews. In order to hold that the sale deeds as bad, necessarily, the validity and the legality of the family settlement would necessarily have to be examined. On
one hand, it is the children of Narvada Rao who are the petitioners who claim their rights on the basis of inheritance and on the other hand the private respondents derive their rights on the basis of the family settlement and consequently the sale deeds executed by the nephews of Narvada Rao. These are pure questions of fact. The issue primarily involves an adjudication on the rights of the parties based on title. Whether the family settlement and/or the sale deeds are valid they all have to be considered and in order to do so it will require evidence. As of today, apparently there is no challenge to the said sale deeds or a direct challenge to the family settlement. The mutation proceedings as already noticed above are of summary nature which do not decide the right, title and interest of the parties which is subject to any adjudication made by the competent court on the regular side.
In the aforesaid backdrop, where the matter has been remitted for decision afresh by the order dated 16.02.2018 and 15.03.2024 as certain recall applications are pending and the title of the parties can be adjudicated on the regular side, hence, this Court in the aforesaid backdrop finds that the issue in controversy between the parties cannot be adjudicated in a summary fashion rather it has to be thrashed out in regular proceedings.
In the aforesaid backdrop, this Court is not inclined to entertain the petition rather this Court is of the opinion that it will be open for the petitioners to get their rights adjudicated in the regular forum and any order passed by the competent court on the regular side would govern the rights of the parties and naturally in light thereof the orders passed by the mutation court shall follow the suit.
It is also clarified that the Court has not examined the plea of either of the parties on merit and needless to say that any observation made herein or the orders passed by the mutation courts will not come in the way of the petitioners or be treated as an expression of opinion on merits.
With the aforesaid observations, this Court is not inclined to entertain the petition as it arises out of summary proceedings and the issue involved is of title which can be adjudicated in the regular forum, hence the petition is dismissed with the aforesaid liberty to the petitioners. No order as to costs.
Order Date :- 29.8.2024 Harshita
Digitally signed by :- HARSHITA High Court of Judicature at Allahabad, Lucknow Bench
3 issues framed by the court
Whether a writ petition is maintainable to challenge mutation orders in summary proceedings involving disputed family settlement and title.
Whether summary mutation proceedings are competent to adjudicate validity of family settlements and sale deeds when title is in dispute.
Whether the petition should be dismissed or warrants regular court proceedings for determination of title.
2 provisions across 1 enactments
Manoj Rao And Another
Board Of Revenue U.P., Lucknow
Jaspreet Singh, J.
As recorded by the court registry
2 orders share this CNR
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