WPMS/2/2016 of Lily Nath Agarwal Vs RAVINDRA NATH AGARWAL

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 2 of 2016

Lily Nath Agarwal

Ravindra Nath Agarwal and Others

...Petitioner

...Respondents

Ms. Menkaa Tripathi, Advocate for the petitioner. Mr. D.S. Patni, Senior Advocate for the respondent.

Hon’ble Sharad Kumar Sharma, J (Oral)

The matter is heard through video conferencing.

2. The challenge in the writ petition as given by the petitioner is to the impugned order passed by the Court of Additional Commissioner, Kumaon Division Nainital, in Revenue Revision No. 114 of 2013-14 ‘Ravindra Nath Agarwal vs. Ms. Lily Nath Agarwal and Others’. The said order was passed by the Revisional Court, in the exercise of its powers vested in him under Section 219 of the Land Revenue Act, 1901.

3. The genesis of the proceedings was emanating from the invocation of the proceedings under Section 34 of the Land Revenue Act at the behest of respondent no. 1, for mutation, which was registered as Case No. 30/3081 of 2010-11 ‘Ravindra Nath Agarwal vs. Estate of Late Badrinath Agarwal and Others’ before the Court of Tehsildar, in relation to the property lying in Khata No. 741 of Village Bithoria, Haldwani, District Nainital. The petitioner herein challenged those proceedings by filing an objection, on the pretext that there already happens to be an inter se dispute of title and rights, which is subject matter of consideration in regular proceedings by way of Suit No. 2745 of 2012 ‘Yogendra Nath Agarwal vs. Ravindra Nath Agarwal and Others’, which was initially instituted before the Delhi High Court on the original side, based on Will executed by the predecessors of the parties to the writ petition, i.e. Late Mr. Badrinath, which according to the information imparted by the petitioner now

stands transferred to the District Court at Delhi, on the ground of pecuniary jurisdiction. In those proceedings, the Court has already granted status quo order on 10.09.2012, in favour of the plaintiffs, therein where partition and injunction is subject matter of determination in relation to the various properties of Late Mr. Badrinath, including the disputed property herein, in the mutation proceedings.

4. The argument raised by the learned counsel for the petitioner to the effect that in view of the pendency of the principal proceedings for declaration of rights as well as for partition before the Delhi High Court, will entail the maintainability of the proceedings under Section 34 of the Land Revenue Act, as to be non stagnate could not be proceeded with is not acceptable by this Court for yet another reason that the petitioner herself has filed an application under Section 34 of the Land Revenue Act on 10.05.2011, that means she has submitted to the jurisdiction of the Revenue Courts, for getting the name recorded, which otherwise according to the judgments rendered by the various courts, including the Apex Court the mutation proceedings have been held to be summary proceedings, which doesn’t entail decision on title or rights of the party to the proceedings under Section 34. Hence, the application preferred under Section 34 by respondent no. 1 cannot be said to be not maintainable.5. On conclusion of the arguments, when the counsel for the petitioner had felt that the writ petition is likely to be dismissed on the ground that it was not maintainable under the settled law by the various judicial pronouncements, in retaliatory manner had expressed that the Court may record that she has prayed for time for filing the rejoinder affidavit, but the same has been declined. In response to the said retaliation, it will be necessary to observe that this writ petition was heard, as back as on 05.01.2016, when the interim order of status quo was granted. It remained pending and it was adjourned ever since the orders passed on 25.08.2018, 01.03.2019, 03.03.2019, 16.06.2020, 18.06.2020, and ultimately when the counter affidavit was filed by the respondents on 19.06.2020. After filing of the counter affidavit, the matter was taken up on 25.06.2020, when the

petitioner was granted time to file rejoinder affidavit. The same was not filed. Subsequent thereto, once again the time was granted by the Coordinate Bench of this Court on 23.07.2020 and by this Court on 06.08.2020. Seeking time for filing rejoinder affidavit on different dates was nothing, but strategy adopted by the petitioner to keep the writ petition pending, and that too, which was arising out of an interlocutory proceedings, which is yet to be decided on merits and further more when the proceeding itself was not maintainable under Article 227 of the Constitution of India. It is settled law also that filing of rejoinder to the pleadings in counter by the respondent is not as of right, which petitioner can claim in proceedings under Article 227 of the Constitution of India, in which the Court exercises the supervisory jurisdiction over the orders passed by the Subordinate Court. Hence, this aptitude of retaliation for getting the case adjourned on the ground that she has prayed time for filing of rejoinder affidavit, that has been denied, this Court expresses anguish as to the manner in which the counsel for the petitioner has carried herself during the course of the argument.

6. With regards to the issue of maintainability of the proceedings of mutation during the pendency of the principal proceedings for declaration of rights and title in Suit for partition. In answer to it, it would be apt to make reference to judgment of Hon’ble Apex Court reported in 2019 (13) SCC 70 ‘Ajit Kaur @ Surjit Kaur vs. Darshan Singh (dead) through legal representatives and Others’, wherein in paragraph 15 and 16 of the said judgment, the Hon’ble Apex Court has held that the revenue record mutations does not create or extinguish title or nor does it raises any presumption of title of the property in favour of the person in whose favour the order has been passed. Opening of fiscal proceedings will not confer right of acquisition by either of the devices, which has been referred to under the provisions of the Land Revenue Act of 1901. The mutation of the property in the revenue records are fiscal proceedings and does not create or extinguish title, nor it has presumptive value on title; it only enables the person in whose favour the mutation has been ordered to pay the land revenue, that is the only purpose for passing the order of mutation under

Section 34 of the Land Revenue Act. Hence, the apprehension expressed is not tenable. Paragraph 15 and 16 of the aforesaid judgment is quoted hereunder:

“15. It is settled position of law that the mutation of property in the revenue records are fiscal proceedings and does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation has been ordered, to pay the land revenue. At the same time, the effect of declaratory decree to restore the property alienated to the estate of the alienor and until and unless the alienees are able to convince the court that they have no subsisting interest in the property, the heirs of the alienees would be entitled to the benefits of the property as per the law of succession. The effect of the operation of the aforesaid declaratory decree would be to restore the land in dispute to the aforesaid estate of Bhana(deceased) and the succession would be deemed to have opened on 27th March, 1973 when Bhana died. On his death, the estate left behind him including the land in dispute would devolve upon his heirs as per their entitlement and after the registered will dated 5th January, 1973 has been upheld by the High Court in RSA No. 933/1984 decided on 28 th July, 2004 and attained finality, its consequence was to follow accordingly.

16. The submission of learned counsel for the appellant that the appellant being in possession of the subject property in question at the time when Act, 1956 came into force and by virtue of Section 14(1) of the Act became an absolute owner of the subject property and the decree being nullity is inexecutable and it is jurisdictional error against the policy of legislature, is without substance for the reason that Section 14(1) of the Act, 1956 clearly envisage that the possession of the widow, however, must be under some vestige of claim, right or title or under any of the devise which has been purported under the law. Indisputedly, in the instant case, the appellant was not holding any valid possession over the subject property and as already observed, opening of fiscal proceedings would not confer right of acquisition by either of the devise which has been referred to under the explanation to Section 14(1) of the Act, 1956. Section 14 of the Act, 1956 is as under: “14. Property of female Hindu to be her absolute property (1) Any property possessed by female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as limited owner.

Explanation.— In this subsection, ‘property’ includes both movable and immovable property acquired by female Hindu by inheritance or devise, or at partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in subsection(1) shall apply to any property acquired by way

of gift or under will or any other instrument or under decree or order of civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe restricted estate in such property.””

7. An identical view has been expressed by the Hon’ble Apex Court in judgment reported in 2007 (6) SCC 186 ‘Suraj Bhan and Others vs. Financial Commissioner and Others’, where in paragraph 8 and 9 of the said judgment, which is quoted hereunder, the Hon’ble Apex Court has further held and clarified that the entry, which has been made by virtue of the mutation proceedings has been affected in the revenue records by the Tehsildar on the basis of an application filed under Section 34 of the Land Revenue Act; its only the entry made for the purpose of the remittance of the land revenue payable towards the land, against which person is recorded. It cannot be said that entering the name of the applicant in the revenue records as consequence of the proceedings under Section 34, any illegality has been done by the Tehsildar by taking an action on the basis of the Will even if it is executed in favour of any other individual person. The said order has been directed to be confirmed by the Collector only subject to the condition of its adjudication in regular civil proceedings:

“8. So far as mutation is concerned, it clear that entry has been made and mutation has been effected in Revenue Records by Tehsildar on the basis of an application made by respondent No.5 herein and his name has been entered in Record of Rights on the basis of the Will said to have been executed by Ratni Devi. In our opinion, therefore, it cannot be said that by entering the name of respondent No. 5 in Revenue Records, any illegality had been committed by Tehsildar. It is true that no notice was issued to the appellants but the Tehsildar had taken the action on the basis of Will said to have been executed by deceased Ratni Devi in favour of respondent No. 5. The said order has been confirmed by the Collector as also by Financial Commissioner. When the grievance was made against the said action by filing Writ Petition, the High Court also confirmed all the orders passed by Revenue Authorities under the Act. We see no infirmity so far as that part of the order is concerned.

9. There is an additional reason as to why we need not interfere with that order under Article 136 of the Constitution. It is well settled that an entry in Revenue Records does not confer title on person whose name appears in Record of Rights. It is settled law that entries in the Revenue Records or Jamabandi have only 'fiscal purpose' i.e.

payment of land-revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by competent Civil Court (vide Jattu Ram v. Hakam Singh and Ors., AIR 1994 SC 1653). As already noted earlier, Civil Proceedings in regard to genuineness of Will are pending with High Court of Delhi. In the circumstances, we see no reason to interfere with the ”order passed by the High Court in the writ petition.

8. The genesis of the proceedings in the present writ petition arises out of an objection, which was filed by the petitioner, before the Tehsildar in the proceedings under Section 34 of the Land Revenue Act, 1901, on the ground that the summary proceedings would not be maintainable because the determination of regular rights pertaining to the grant of decree of partition and permanent injunction, is subject matter pending considering before the Delhi High Court (as it then was), in which the property, for which the mutation has been sought, is also subject matter. The Tehsildar, held the proceedings to be maintainable and rejected the objection preferred by the petitioner with the following observations. Against which the petitioner has filed revision being Revision No. 52/11 of 2012-13 invoking the provisions contained under Section 219 of the Land Revenue Act, 1901, before the Court of Collector, on 10.12.2012:“bl U;k;ky; esa fopkjk/khu okn u rks dCts dk vf/kdkj nsrk gS vkSj uk gh ekSf[kd vf/kdkj iznku djrk gSA vius i{k ds leFkZu esa oknh vf/koDrk }kjk 2008(1) Civil Court Cases 310 (SC) Page 310 izfr micU/k djk;h x;hA mHk;i{kksa dh mDr foospuk rFkk i=koyh esa miyC/k lk{;ksa ds voyksdu fo”ys’k.k ds Lrj ij gS fd bl U;k;ky; ds fopkjk/khu ukekUrj.k okn dk ljljh izfdz;k gS tks jktdks’kh; izd`fr fd dk;Zokgh gS bl izdkj ukekUrj.k okn ds ikfjr vkns”k ls fdlh O;fDr ds Loro ij izHkko ugha iM+rk gSA mDr foospuk ds vk/kkj ij vkifRrdrkZ fyyhukFk vxzoh }kjk izLrqr izkFkZuki= fnukad 27-9-12 fujLr fd;k tkrk gSA i=koyh okLrs “ks’k oknh lk{; ds ftjg gsrq fnukad 01-12-12 dks is”k gksA ”

9. The revision thus preferred by the petitioner before the Collector, was allowed by an order of 05.06.2014 and, as consequence thereto, resulting into setting aside the order of the Tehsildar dated 17.11.2012, holding the proceedings to be maintainable under Section 34. Consequently, the proceedings before Tehsildar, under Section 34 of the Land Revenue Act, 1901, was consigned to records, for the following reasons:

“eSaus nksuksa i{kksa ds fo}ku vf/koDrkvksa dh cgl lquh rFkk i=koyh esa miyC/k vfHkys[kksa dk voyksdu fd;kA fuxjkuhdrkZ dk dFku gS fd fookfnr Hkwfe esa lEcfU/kr ,d fjV ;kfpdk orZeku esa ek0 mPp U;k;ky; fnYyh esa fopkjk/khu gS ftl ij LFkxr vkns”k ikfjr fd;s x;s gSaA muds }kjk tc rd mDr ;kfpdk dk fuLrkj.k ugha gks tkrk rc rd voj U;k;ky; ds nk0[kk0 izfdz;k dks jksds tkus dk vuqjks/k fd;k x;kA lquokbZ ds le; mifLFkr f}rh; i{k ds fo}ku vf/koDrk }kjk Hkh LFkxu vkns”k ds vkt rd izHkkoh gksus dh iqf’V dh xbZA

nksuksa i{kksa ds fo}ku vf/koDrkvksa dks lquus ds mijkUr ;g rF; izdk”k esa vkrk gS fd fookfnr Hkwfe ls lEcfU/kr fjV ;kfpdk orZeku esa ek0 mPp U;k;ky; fnYyh esa fopkjk/khu gSA vr% of.kZr rF;ksa ds n`f’Vxr fuxjkuh Lohdkj dh tkrh gS o voj U;k;ky; dk vkns”k fnukad 17-11-2012 fujLr fd;k tkrk gSA okn izdj.k voj U;k;ky; dks bl funsZ”k ds lkFk izfrizsf’kr fd;k tkrk gS fd tc rd mDr fjV ;kfpdk esa dksbZ vfUre fu.kZ; ikfjr ugha gks tkrk rc rd voj@rglhynkj gY}kuh ds U;k;ky; ls lEcfU/kr okn dh dk;Zokgh LFkfxr jgsxhA bl vkns”k dh ,d izfr voj U;k;ky; dh i=kofy;ksa ds lkFk okij dj nh tk;A i=koyh ckn vko”;d dk;Zokgh lafpr vfHkys[kkxkj gksA”

10. It is against the order of 05.06.2014, passed by the Collector that the respondents herein preferred revision before the Commissioner invoking Section 219 of the Land Revenue Act, 1901, being Revision No. 114 of 2013-14 ‘Ravindra Nath Agarwal vs. Ms. Lily Nath Agarwal and Others’, whereby, the Commissioner had passed the impugned order dated 23.11.2015, consequently, allowing the revision and holding thereof that the proceedings under Section 34 of the Land Revenue Act of 1901, would be maintainable, for the reason being that, the mutation proceedings since being summary in nature and is fiscal in nature, it will not have any bearing in relation to the determination of title, which is subject matter of the regular suit for partition and injunction, which is pending before the Delhi Courts. The Court further observed, that any rights, which are flowing to the parties to the proceedings of mutation under Section 34 of the Act, may it be on whatsoever basis including the Will , will have no affect as far the determination, which is being made in mutation proceedings on the regular civil proceedings, for the reason being that the proceedings, which are held under Section 34, they are only summary and fiscal in nature and they do not determine the right or title of the parties; because that has always been made as subject matter, of the provisions contained under Section 40A of the Land Revenue Act of 1901, which has been kept subject to determination of rights and title

in regular proceedings of Suit. Section 40A of the Land Revenue Act is quoted hereunder:

“[40A. Saving as to title suits. - No order passed under Section 33, Section 35, Section 39, Section 40, Section 41 or Section 54 shall bar any suit in competent Court for relief on the basis of right in holding.]”

11. The apprehension expressed by the learned counsel for the petitioner is that the finding, which has been recorded by the Revisional Court, in the impugned order dated 23.11.2015, would be having an impact on the determination of rights inter se between the parties, which is yet to be adjudicated in regular proceedings.

12. This Court is of the view that this apprehension expressed by the petitioner is unfounded in view of the settled law that the mutation proceedings, since it does not have any bearing on determination of right or title of party, which is to be decided by regular proceedings, and since it is always subject matter of decision of regular proceedings, which is yet to be decided between the parties. By the impugned order otherwise also, since it happens to be having only an effect of reviving the proceedings before the Tehsildar under Section 34, any finding, which has been recorded for the purposes of mutation, will not be having any effect on the determination of rights between the parties and otherwise also, the nature of order, which is under challenge before this Court, would be an interlocutory order, for the reason being, that its effect is that the proceedings of the Tehsildar revives back where it will still be open for the parties to raise all their rival contentions without being affected by the findings recorded by the Revisional Court, in the impugned order, which has to be still decided independently by the Tehsildar, on its own merits.

13. Consequently, subject to the above observations, the writ petition lacks merit and the same is, accordingly, dismissed.

(Sharad Kumar Sharma, J.) 10.08.2020