Dismissed

Surendra v. District Magistrate, Sitapur and Others

Allahabad HC3 Oct 2024WRIC/8615/2024

Case brief

AI extract

What is this about?

The petitioner challenged orders setting aside mutation in his favor. The Court turned down preliminary objections, held that bypassing a title suit via recall application was inadmissible, and granted an interim stay on the impugned orders pending investigation.

What did the court decide?

Interim stay on the operation of the impugned mutation cancellation orders; case allowed to proceed with further arguments after taking notice.

Surendra vs District Magistrate, Sitapur and Others — Landlord and Tenant | Allahabad HC (2024)

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Court No. - 19

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Case :- WRIT - C No. - 8615 of 2024

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Petitioner :- Surendra Respondent :- District Magistrate, Sitapur And Others Counsel for Petitioner :- Dharm Raj Mishra,Virendra Mishra Counsel for Respondent :- C.S.C.

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Hon'ble Subhash Vidyarthi,J.

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Heard Sri Virendra Mishra, the learned counsel for the petitioner, Sri Rajiv Singh Chauhan, the learned Additional Chief Standing Counsel for the State of U.P. and Sri Ram Kumar Srivastava, the learned counsel for the opposite party no. 4.

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By means of the instant writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged validity of orders dated 19.09.2024, 20.09.2024 and 19.09.2024 passed by the Nayab Tehsildar (IIIrd), Sidhauli, District Sitapur in Case Nos. 02448/2019, 02447/2019 and 02453/2019 respectively, under Section 34 of U.P. Revenue Code, 2006, whereby the orders dated 03.02.2011, 19.05.2009 and 03.02.2011 respectively have been set aside.

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Brief facts of the case are that one Ram Bharose was recorded tenure holder of the land in question. He died in the year 1998 and thereafter names of his sons Rajesh and Raj Kumar were recorded as tenure holders. Rajesh sold his share of the property through a sale deed dated 03.10.2008 in favour of Neeraj Jain and name of the purchaser Neeraj was mutated by means of an order dated 19.05.1995. Neeraj sold the land in question to Om Prakash Agarwal and Mohit Agarwal on 18.10.2010 and mutation of their names was affected on 03.10.2011.

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Raj Kumar, the other son of Ram Bharosey, died in the year 2009 leaving behind his wife Ram Devi and sons Akash and Suraj. They sold off their shares of the property to Om Prakash Agarwal and Mohit Agarwal through a sale deed dated 01.11.2010 and names of Om Prakash Agarwal and Mohit Agarwal were mutated by means of an order dated 03.02.2011.

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Om Prakash Agarwal and Mohit Agarwal sold the entire land which they had purchased through separate sale deeds from the heirs of late Ram Bharosey, to the petitioner through a sale deed dated 25.11.2023 and the petitioner's name was mutated in respect of the entire land by means of an order dated 10.01.2024.

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On 07.02.2011, the opposite party no. 4 had filed an application for recall of the mutation orders dated 19.05.2009 and 03.02.2011, which applications have been allowed by means of the impugned orders dated 20.09.2024 and 19.09.2024.

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The learned counsel for the opposite party no. 4 has raised a preliminary objection that mutation proceedings are of summary nature and title cannot be decided therein. He has submitted that in case the petitioner is aggrieved by the impugned order, it is open for the petitioner to file a regular suit for declaration of his title. The second preliminary objection of the learned counsel for the opposite party no. 4 is that the petitioner has got a statutory remedy of filing a revision under Section 210 of U.P. Revenue Code, 2006. Third objection raised by the learned counsel for the opposite party no. 4 is that by means of the impugned orders, opportunity of filing objections has been granted to the petitioner and, therefore, the petitioner should file objections before the Nayab Tehsildar himself.

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Replying to the aforesaid objections, the learned counsel for the petitioner has submitted that there is no doubt that mutation proceedings are of summery nature and title is to be decided in regular proceedings. It was in accordance with this settled law that after passing of the mutation orders dated 19.05.2009 and 03.02.2011, the opposite party no. 4 had filed Suit No. 72/80/83/102, under Section 229B/209 of U.P. Zamindari Abolition and Land Reforms Act for declaration of his title and claiming possession of the land in dispute. However, the opposite party no. 4 abandoned that regular suit mid way and it was dismissed for want of prosecution on 12.01.2015.

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The submission of the learned counsel for the petitioner is that as per the law placed by the learned counsel for the opposite party no. 4 himself, the opposite party no. 4 ought to have pursued the suit for declaration of title and the mutation order could not have been cancelled on a recall application filed by the petitioner, that too, after bypassing the remedy of suit for declaration of title.

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Regarding the second objection as to availability of statutory remedy, the learned counsel for the petitioner has submitted that the petitioner had earlier filed a Revision No. 3098 of 2024 against the order dated 06.03.2024 passed by the Nayab Tehsildar whereby the recall application of the opposite party no. 4 was admitted. On 05.08.2024, the Commissioner Lucknow passed an order in the revision for issuing notice to the opposite party no. 4 and the revision was fixed for 28.08.2024. Meanwhile, the Nayab Tehsildar passed the impugned orders which rendered the revision filed by the petitioner infructuous. He has submitted that the aforesaid facts indicate that although the petitioner had himself first availed the statutory remedy but it turned out that the statutory remedy

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is not efficacious as the Nayab Tehsildar has passed the impugned orders during pendency of the revision.

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Regarding the third preliminary objection, the learned counsel for the petitioner submits that the Nayab Tehsildar has decided everything by the impugned orders and has accepted the application for setting aside the order of mutation, has set aside the mutation orders dated 19.05.2009 and 03.02.2011 and has ordered that the mutation in favour of opposite party no. 4 be effected in the records. Now nothing remains to be decided by the Nayab Tehsildar and, in these circumstances, the opportunity of filing objections is redundant.

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I find force in submissions of the learned counsel for the petitioner and in view of the same, the preliminary objections raised by the learned counsel for the opposite party no. 4 are turned down.

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As mutation orders had been passed in favour of the predecessors in interest of the petitioner way back on 19.05.2009 and 03.02.2011; the opposite party no. 4 had filed a regular suit for declaration of title and recovery of possession under Section 229B/209 of U.P. Zamindari Abolition and Land Reforms Act; he abandoned that remedy midway and adopted a short cut of filing an application for recall of the mutation orders, this Court is of the view that prima facie the course adopted by the opposite party no. 4 is not admissible in law.

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The matter requires detailed consideration.

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Issue notice to the opposite parties no. 5 to 11 returnable at an early date.

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The petitioner may take necessary steps within one week.

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The opposite parties may file objections, if any, within three weeks.

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List this case in the week commencing 18.11.2024.

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Keeping in view the aforesaid discussions, as an interim measure it is provided that till the next date of listing, operation and implementation of the orders dated 19.09.2024, 20.09.2024 & 19.09.2024 passed by the Nayab Tehsildar (IIIrd), Sidhauli, District Sitapur in Case Nos. 02448/2019, 02447/2019 and 02453/2019, shall be kept in abeyance.

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(Subhash Vidyarthi, J.)

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Order Date :- 3.10.2024 Pradeep/-

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Digitally signed by :- PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench

Surendra v. District Magistrate, Sitapur and Others

Case brief

What is this about?

What did the court decide?

Surendra v. District Magistrate, Sitapur and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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Case details

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