# Shravan Kumar & Anr v. Addl. Commissioner Ayodhya Division, Ayodhya & Ors

- **Citation:** (2023) 12 ILRA 811
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-30
- **Case number:** Writ-C No. 1679 of 2023
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shravan-kumar-anr-v-addl-commissioner-ayodhya-division-ayodhya-ors-49538
- **Pages:** 22

## Headnote

Criminal Law - U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Sections 2(b), 2(c), 3(1) & 19(4) - Indian
Penal Code, 1860 - Section 386 - Bail -
Public Order vs. Law and Order - Gang Chart -
Non-Application of Mind

The applicant, Angad Rai @ Jhullan Rai, sought
bail in Case Crime No. 314 of 2023 under
Section 3(1) of the U.P. Gangsters Act, alleging
misuse of the Act to frustrate his prior bail in a
case under Section 386 IPC (Case Crime No.
111 of 2023). The gang chart alleged the
applicant, a member of Mukhtar Ansari's gang,
threatened witnesses, disturbing public order.
The applicant argued the allegations were a law
and order issue, not public order, and the gang
chart omitted his prior bail order. The St.
opposed, citing the Act's strict bail provisions
under Section 19(4). Held: (1) The bail
application was allowed. (2) The gang chart's
failure to mention the applicant's prior bail order
dated 26.05.2023 indicated non-application of
mind, and the allegations of witness threats
constituted a law and order issue, not public
order, per Banka Sneha Sheela Vs St. of
Telangana. (3) The twin conditions under Section
19(4)(b) were satisfied: no prima facie evidence
supported guilt under the Gangsters Act, and no
material suggested the applicant would commit
similar offences if released, per Mohd Muslim @
Hussain Vs St. (NCT of Delhi) and Ranjitsingh
Brahmajeetsing Sharma Vs St. of Maharashtra. (4)
The St.'s failure to challenge the prior bail order or
seek its cancellation weakened its case. (5) Bail
was granted with conditions to ensure court
attendance and prevent evidence tampering or
witness intimidation.

Case Law cited:

## Text

_Characters 0–39,920 of 75,872. This is a partial read: ask again with offset=39920 for what follows._

12 All. Shravan Kumar & Anr. Vs. Addl. Commissioner Ayodhya Division, Ayodhya &Ors.
811
possible without any detriment to the
administrative needs and the claim of other
employees.

(v) As far as the petition of
differently abled petitioners or petitioners
claiming transfer on grounds of serious
ailments are concerned, the matters are
remanded to the Board to take appropriate
decisions in view of the observation made
in
this
order.
In
any
case,
these
considerations are required to be examined
by the Board at the first instance. Thus, it is
directed that these petitioners shall file
individual representation detailing their
cause to the Board, which shall take a
decision in that matter keeping in view the
broad principle devised by this Court in the
instant judgment as well as in the case of
Divya Goswami (supra), including the
adversity on candidates in all these kinds of
mid-session transfer.

(vi) In the facts of the present
case, there shall be no order as to cost.
----------
(2023) 12 ILRA 811
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.11.2023

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ-C No. 1679 of 2023

Shravan Kumar & Anr. ...Petitioners
Versus
Addl. Commissioner Ayodhya Division,
Ayodhya & Ors. ...Respondents

Counsel for the Petitioners:
Ravi Shanker Tewari, Sheo Pal Singh

Counsel for the Respondents:
C.S.C., Ajay Kumar Pandey, Vijai Bahadur Verma

Criminal Law - U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Sections 2(b), 2(c), 3(1) & 19(4) - Indian
Penal Code, 1860 - Section 386 - Bail -
Public Order vs. Law and Order - Gang Chart -
Non-Application of Mind

The applicant, Angad Rai @ Jhullan Rai, sought
bail in Case Crime No. 314 of 2023 under
Section 3(1) of the U.P. Gangsters Act, alleging
misuse of the Act to frustrate his prior bail in a
case under Section 386 IPC (Case Crime No.
111 of 2023). The gang chart alleged the
applicant, a member of Mukhtar Ansari's gang,
threatened witnesses, disturbing public order.
The applicant argued the allegations were a law
and order issue, not public order, and the gang
chart omitted his prior bail order. The St.
opposed, citing the Act's strict bail provisions
under Section 19(4). Held: (1) The bail
application was allowed. (2) The gang chart's
failure to mention the applicant's prior bail order
dated 26.05.2023 indicated non-application of
mind, and the allegations of witness threats
constituted a law and order issue, not public
order, per Banka Sneha Sheela Vs St. of
Telangana. (3) The twin conditions under Section
19(4)(b) were satisfied: no prima facie evidence
supported guilt under the Gangsters Act, and no
material suggested the applicant would commit
similar offences if released, per Mohd Muslim @
Hussain Vs St. (NCT of Delhi) and Ranjitsingh
Brahmajeetsing Sharma Vs St. of Maharashtra. (4)
The St.'s failure to challenge the prior bail order or
seek its cancellation weakened its case. (5) Bail
was granted with conditions to ensure court
attendance and prevent evidence tampering or
witness intimidation.

Case Law cited:

1. Banka Sneha Sheela Vs St. of Telangana &
ors., (2021) 9 SCC 415

2. Ram Manohar Lohia Vs St. of Bihar, (1966) 1
SCR 709: AIR 1966 SC 740

3. Mohd Muslim @ Hussain Vs St. (NCT of
Delhi), 2023 LiveLaw (SC) 260

4. Ranjitsingh Brahmajeetsing Sharma Vs St. of
Mah., (2005) 5 SCC 294

5. U.O.I. Vs Ratan Malik, (2009) 2 SCC 624
812 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard learned counsel for the
petitioners, Sri Vijai Bahadur Verma, who
put in appearance on behalf of opposite
party No.3-Harihar Bux and Sri Hemant
Kumar Pandey, learned counsel for the
State.

2. In view of order proposed to be
passed, notice to opposite parties is hereby
dispensed with.

3. By means of present petition,
petitioners have assailed the order passed in
the mutation proceedings.

4. The main relief sought in the
present petition on reproduction reads as
under:-

"(i) To issue writ, order or direction in
the nature of certiorari quashing the
impugned judgment and order dated
19.01.2023 passed by the Ld. Opp. Party
No.1
in
Revision
No.
00378/2021
[C202104000000378] (Smt. Kalawati Vs
Harihar Bux & Ors) u/s 229 of the U.P.
L.R. Act and the judgment & order dated
15.02.2021 passed by the Ld. Opp. Party
No.2 in Case No. 5382/2014 [Computer
No. 20140412055382] u/s 34/35 of the U.P.
L.R. Act (Smt. Kalawati Vs Tauqeer Ahmed
& Ors) contained in Annexure No.1 & 2
respectively to the Writ petition."

5. As per record as also the
submissions advanced by the learned
counsel for the petitioners the orders
aforesaid have been assailed, broadly, on
following grounds:-

(i)
limitation
for
preferring
an
application for mutation under Section 34
of U.P. Land Revenue Act, 1901 (in short
"Act of 1901").

(ii) the jurisdiction of Tehsildar and
other authorities under the Act of 1901
while dealing with the mutation cases.

6. Learned counsel for the parties,
proposed the following questions, which
are to be answered by this Court:-

"A. As to whether an application u/s
34 of
 the L.R. Act, 1901 can be moved in
case of transfer at any point of time or
within
 a reasonable period of time
after

reporting
the
possession
as
provided u/s
 34(1) of the Act?

B. As to whether if the possession is
not be reported to the Tehsildar of the
Tehsil concerned within three months from
the
 date of obtaining possession upto
what 
time the application can be
entertained 
after levying fine as the same
is not
 provided even u/s 38 of the Act?

C. As to whether in a local law where
no limitation is provided section 29(2)(b) of
the
Limitation
Act
would
be
made
applicable and as such as per residuary
Article 137 the limitation would be three
years?
D. As to whether in a summary proceedings
when rival claims are setup the Tehsildar is
entitled to decide the title or the same
should be referred to the Court of original
jurisdiction to decide the title as has been
held by the full bench of Karnatka High
Court in the case of Smt. Jayamma & 3
Ors. Versus the State of Karnatka & 3
Ors., reported in AIR Online 2020 KAR
108 (Full Bench)."

7. Before entering into the factual
aspect of the case as also the issue that as to
whether in the facts of the case the present
petition is liable to be entertained, this
12 All. Shravan Kumar & Anr. Vs. Addl. Commissioner Ayodhya Division, Ayodhya &Ors.
813
Court finds it appropriate to deal with the
aforesaid questions.

8. For coming to the conclusion on
the questions aforesaid as also on the issue
of entertainability of present petition, it
would be apt to refer some statutory
provisions and relevant paragraphs of some
pronouncements.

9. Section(s) 33A, 34, 35, 38, 40 and
40-A of the Act of 1901 being relevant, are
extracted herein under:-

"[33A. Correction of annual registers
in cases of uncontested successions. -(1)
Where a person obtains possession of any
land by succession, tire Kanungo shall
make such enquiry as may be prescribed
and if the case is not disputed record the
same in the annual registers.]

[(2) The provisions of sub-section (1)
shall mutatis mutandis apply -

(i) to a person, who has been admitted
as asirdarof any land under Section 195 of
the Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950 before tire
commencement of the Uttar Pradesh Land
Laws (Amendment) Act, 1977 or as a
bhumidhar with non-transferable rights
under
tire
said
section
after
such
commencement, or as anasamiof any land
under Section 197 of the first mentioned
Act.

(ii) to every settlement of land made
under sub-section (3) of Section 27 of the
Uttar Pradesh Imposition of Ceiling on
Land Holdings Act, 1960.]

34. Report of succession or transfer
of possession. -[(1) Every person obtaining
possession of any land by succession or
transfer (other than a succession or
transfer which has already been recorded
under Section 33-A), shall report such
succession or transfer to the Tahsildar of
the Tahsil in which the land is situate.]

(2)[* * *]

(3)[* * *]

(4) If the person so succeeding, or
otherwise obtaining possession, is a minor
or otherwise disqualified, the guardian or
other person who has charge of his
property shall make the report required by
this section.

(5) No Revenue Court shall entertain a
suit or application by the person so
succeeding
or
otherwise
obtaining
possession until such person has made the
report required by this section.

[Explanation.- For tire purposes of
this section, the word 'transfer' includes -

(i) a family settlement by which the
holding or part of the holding recorded in
tire record-of-rights in tire name of one or
more members of that family is declared to
belong to another or other members; or

(ii) an exchange of holding or part
thereof under Section 161 of the Uttar
Pradesh Zamindari Abolition and Land
Reforms Act, 1950.

[35.
Procedure
on
report
-On
receiving a report of succession or transfer
under Section 34, or upon facts otherwise
coming to his knowledge, the Tahsildar
shall make such inquiry as appears
necessary, and if the succession or transfer
appears to have taken place, he shall direct
the annual registers to be amended
accordingly.]

38. Fine for neglect to report. - Any
person neglecting to make the report
required by Section 34 within three months
from the date of obtaining possession under
a[* * *]lease, or from the date of the
succession or other transfer, shall be liable
to a fine not exceeding five times the
amount of the fee which would otherwise
have been payable under Section 37, or
when no fee is leviable, then not exceeding
814 INDIAN LAW REPORTS ALLAHABAD SERIES
such amount as the[State Government]may
by rule prescribe.

40. 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[Tahsildar]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.

(3)[* * *]

Explanation.- The term 'possession' in
this Section means possession based on
succession or transfer.

[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 a competent
Court for relief on the basis of a right in a
holding.]"

10. Section 214 of the U.P. Revenue
Code, 2006 (in short "Code of 2006"),
being also relevant, is extracted herein
under:-

"214. Applicability of Code of Civil
Procedure, 1908 and Limitation Act,
1963.- Unless otherwise expressly provided
by or under this Code, the provisions of the
Code of Civil Procedure, 1908 and the
Limitation Act, 1963 shall apply to every
suit, application or proceedings under this
Code."

11. In the case of Vishwa Nath and
Another vs. Board of Revenue, U.P.,
Lucknow and Others; 2004 (4) AWC
3141; this Court considered the statutory
provisions related to mutation proceedings
and as per observations made in this
judgment
the
mutation
court
has
jurisdiction to take evidence and also to
examine the same to find out that as to
whether the transfer or succession had
taken place or not. The relevant paras of the
judgment, referred above, are as under:-

"7. Section 34 of U.P. Land Revenue
Act, 1901 (hereinafter referred to as Act)
provided that every person obtaining
possession of any land by succession or
transfer shall report such succession or
transfer to the Tahsildar of the Tahsil in
which the land is situate. Section 35
provides procedure on report. Section 35 of
extracted below:-

"35. Procedure on report.- On
receiving a report of succession or transfer
under Section 34, or upon facts otherwise
coming to his knowledge, the Tahsildar
shall make such inquiry as appears
necessary, and if the succession or transfer
appears to have been taken place, he shall
direct the annual registers to be amended
accordingly."

Section 40 provides for settlement of
disputes as to entries in annual register.
Section 40-A is with regard to saving as
title suits. Sections 40 and 40-A of the Act
is quoted below:-

"40. 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 Tahsildar) 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.

Explanation.- The term "possession"
in this section means possession based on
succession or transfers.

40A. Saving as title suits.- No order
passed under Section 33, section 35,
12 All. Shravan Kumar & Anr. Vs. Addl. Commissioner Ayodhya Division, Ayodhya &Ors.
815
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."

Section 234 of the Act empowers the
Board to make rules with the previous
sanction of the State Government. In
exercise of powers under Section 234 of the
Act Rules have been framed. Chapter AXXXVII was inserted vide Notification
dated 14th
January,
1966
regarding
mutation of names due to succession or
transfer under Sections 34, 35 of the Act.
Rule A-378(b) which is relevant in the
present as is extracted below:-

"A-378(b).
If
the
succession
is
disputed, the tahsildar shall make a
summary enquiry in accordance with
Section 40 and shall record such evidence
as the parties may produce and also take
into consideration such other evidence as
may otherwise be placed before him for
determining the dis-pute. If the succession
is found to have taken place and it is in
accordance with the provisions of the ZA
and LR Act, 1950, he shall order it to be
recorded in the Annual Register."

Rule A-378(b), as quoted above,
provides that if the succession is disputed,
the tahsildar shall make a summary
enquiry in accordance with Section 40 and
shall record such evidence as parties may
produce. Section 40, as extracted above,
provides that disputes shall be decided on
the basis of possession and if in course of
enquiry Collector or Tahsildar 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.

8.Rule 381 relied by counsel for the
petitioner as contained in Chapter XXXVII
of U.P. Revenue Court Manual was rule
relating to mutation prior to insertion of
Chapter A-XXXVII. Rule 381(c) is with
regard to disputed case which itself
contemplate making of summary inquiry
and taking evidence. Rule 381(c) is
extracted below:-

"381. Procedure on completion of
enquiry required by Section 35.- Upon the
completion of the inquiry required by
Section 35 the tahsildar shall-

(a) and (b)..............................

(c) In a disputed case, under Section
35 the tahsildar shall only make a
preliminary enquiry to determine the
dispute and its nature before referring the
case to the Collector for disposal as
required by the section. The Collector shall
then make a summary enquiry himself and
shall take such further evidence as the
parties may desire to produce and as may
be necessary in his opinion for completing
the enquiry. He may also take into
consideration in his opinion for completing
the enquiry. He may also take into
consideration the evidence, if any, recorded
by the Tahsildar or a qualified NaibTahsildar."

9.From perusal of Rule A-378(b) of
the U.P. Revenue Court Manual as well as
Rule 381 and Section 40 of the Act, it is
clear that in a disputed case of succession,
the inquiry is contemplated and in the said
inquiry the Tahsildar/Collector is also
entitled to take evidence of the parties.
Furthermore, Section 35 of the Act provides
for making such inquiry as appears
necessary and the relevant words used in
Section 35 are, "if the succession or
transfer appears to have taken place, he
shall direct the annual registers to be
amended accordingly." The inquiry, thus, is
for finding out if the succession or transfer
appears to have taken place. However,
inquiry is summary in nature and the order
passed there in has no bearing in title suit
in which relief is claimed on the basis of
right in a holding. Section 40-A of the Act
816 INDIAN LAW REPORTS ALLAHABAD SERIES
specifically provides that no order passed
under Section 35 of the Act shall bar any
suit in a competent Court for relief on the
basis of a right in a holding.

10.The question posed is as to whether
if a registered Will or any registered
document is filed before a mutation Court
whether it is obligatory for the mutation
Court to direct for mutation on the said
basis and whether in any circumstances the
mutation Court has jurisdiction to ignore
the said document. When statute gives
power to Court to conduct an inquiry to
find out as to whether transfer or
succession has taken place or not, the
Court will have all necessary power to
arrive at a decision. In case it is held that
mutation Court has to always direct for
mutation on the basis of registered
document, the power of the Court under the
aforesaid section Will be hedged with
restriction, which cannot be read in the
statutory scheme. The interpretation as
canvassed by counsel for the petitioners
will put restraint on exercise of jurisdiction
by the mutation Court, which is not
envisaged in the provisions, and the Rules.
The provisions of U.P. Revenue Court
Manual, as quoted above, provide taking of
evidence by the Court. When the Court take
evidence it has jurisdiction to decide the
issue raised. The report of mutation can be
given on the basis of a transfer. Let us take
an example that a sale deed is claimed to
be executed by a person, which is
registered document produced before the
mutation Court. An objection is filed to the
application that person claiming to have
executed the sale deed is dead or the
person was not present in the district at the
time of execution and the sale deed is by an
impostor.
Obviously
the
Court
is
empowered to take evidence and decide the
objection. In case interpretation is taken
that the sale deed is to be always accepted
if one of the attesting witnesses comes and
proves the execution that will be fettering
the power of the Court. The Court is
empowered to take evidence of both the
par-ties and decide the dispute as to
whether deed was executed by person
claimed to have executed the deed or not,
same can be an example with regard to a
Will also. In a case of registered Will if an
objection is taken that Will was not
executed by the person claims to have
executed the Will, the Court can take
evidence and decide the issue. The mere
that one of the attesting witness comes and
proves the Will does not oblige the Court to
accept the Will in all circumstances. It is,
however, relevant to note that for ignoring
the registered document there has to be
valid reasons and a registered document
cannot be ignored on insufficient grounds.

11.From the foregoing discussions, it
is clear that it is in the jurisdiction of the
mutation Court on the basis of evidence
brought before it to either accept the Will
or not accept the Will.

12.The counsel for the petitioners has
placed reliance on Appendix-10 Note 10 of
U.P. Revenue Court Manual which is
extracted below:-

"10. But cases do arise e.g., when the
Collector has taken charge of an estate
immediately on the death of the owner,
when the dispute must be decided on a
summary inquiry into title. The difficulty in
such cases arises on the interpretation of
the word 'summary', vide Board's letter No.
13/Judl. 384-B of June 2, 1930. If only all
Courts would get this word fixed in their
minds the Board feel that mutation work
will be enormously reduced, perhaps by
half. It is the fear of having a case returned
for further hearing, that forces the majority
of
Sub-Division
Officers
to
convert
themselves into extra civil Courts. At the
same time the Board must enter a caveat;
12 All. Shravan Kumar & Anr. Vs. Addl. Commissioner Ayodhya Division, Ayodhya &Ors.
817
the word 'summary' does not mean
'scamped'; it is not to be used as a cloak
for the delinquencies of the idle officer. It is
impossible to avoid entering into points of
civil law in discussing questions of title;
and the rules of civil law must be observed.
It is difficult to give instructions which will
cover all cases; but a few illustrations of
cases in which time can be saved may help
:

(i) If the deceased has executed a deed
of adoption which has been duly registered,
it should be left to the opposite party to
prove in the civil Courts that the adoption
was invalid or for any reason.

(ii) If a transfer is made with all due
formality including as assertion that
possession has been given, and a prompt
application for mutation is challenged by
the transferor on the ground that the
consideration has not been paid, it should
be for the transferor to go to the civil
Courts.

(iii) If the transferor, a recorded
proprietor, admits the transfer and delivery
of possession inter vivos no third party
should be allowed to challenge the
possession of the transferee.

(iv) If a Muslim woman produces a
formal nikahnama signed by her husband,
duly registered that is sufficient evidence
for the Revenue Court that she is duly
married.

(v) If a properly executed registered
Will in favour of some one other than the
heir is produced, it is not for Revenue
Courts to decide as to the competence of
the testator.

(vi)
Ordinarily
civil
Courts
dakhalnama in pursuance of a decree
should not be questioned."

13. Reliance has been placed on Note
10(v) which provide that if a property
executed registered Will in favour of some
one other than the heir is produced, it is not
for Revenue Court to decide as to the
competence of the testator. It is not
necessary to examine the submission any
further since the present case is a case in
which Will is executed in favour of two sons
who
are
admitted
heirs
under
the
provisions of U.P. Zamindari Abolition &
Land Reforms Act. Thus Note 10(v) is not
attracted strictly in the present case.

14.Now coming to the cases cited by
counsel for the petitioners, the first case
relied isRoop Narain's case(1973 All LJ
599) (supra). The aforesaid case was a
case which lay down that if the property is
bequeathed under the valid Will, the
provisions of Sections 171 and 172 of U.P.
Zamindari Abolition & Land Reforms Act
will not be attracted. The said judgment
further lay down principle for construing a
Will. In the present case, it is not the case
of the respondents that Will could not have
been executed by the deceased. With regard
to principle of construing a Will since
findings given in the mutation proceedings
are only summary subject to decision by
competent Court, it is open to the
petitioners to establish their right on the
basis of Will in competent Court. The said
case was not a case arising out of mutation
proceedings nor the question of jurisdiction
of mutation Court has been considered in
the said case, hence the said case is not
attracted. Another case relied on by
petitioners isRudra Pratap's case(AIR 1975
All 125) (supra). In the aforesaid case, the
learned single Judge took the view that
Board of Revenue decided the title of the
parties in a mutation proceedings, hence
the petitioners can seek assistance of High
Court to remove the shadow on its title. The
said case was a case on its own fact. The
learned single Judge for taking the said
view has placed reliance on a Division
Bench judgment inJaipal Minorv.The Board
818 INDIAN LAW REPORTS ALLAHABAD SERIES
of Revenue. U.P., Allahabad, 1956 All LJ
807 : (AIR 1957 All 205). Following was
laid held in paragraph 2 of the judgment of
learned single Judge:-

"2............In
support
of
this
contention he has placed reliance upon a
decision of this Court inJaipal Minorv.The
Board of Revenue, U.P., Allahabad1956 All
LJ 807 (1) : AIR 1957 All 205. In that case
no doubt it was held 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 passed 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. In my
opinion the present case belongs to that
category of cases inasmuch as the Board of
Revenue has proceeded to decide the
question of title......"

InJaipal Minor's case(supra), the
Division Bench did not lay down that
whenever the question of title is decided in
mutation proceeding, the writ petition can
be entertained. Following was laid down by
the Division Bench inJaipal Minor's
case(supra):-

"The contention of learned counsel for
the petitioner is that the Board of revenue
in
passing
this
order
exceeded
its
jurisdiction. It has however been the
consistent practice of this Court not to
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, and his right to
establish his title thereto is expressly
reserved by Sec. 40(3) of the Act. The only
exception to this general rule is in those
cases in which the entry itself confers a title
on the petitioner by virtue of the provisions
of the U.P. Zamindari Abolition & Land
Reforms Act. This petition does not fall in
that class and we think therefore this Court
should not entertain it. It is accordingly
dismissed with costs."

From above, it is clear that this Court
does not interfere with the order made by
Board of Revenue regarding recording of
names. Only one exception was noted
i.e.,cases in which the entry itself confers a
title on the petitioner by virtue of the
provisions of the U.P. Zamindari Abolition
& Land Reforms Act. No such proposition
was laid down by the Division Bench that
whenever any decision on title is given, this
Court may interfere. However, from the
scheme of the Act and the Rules, it is clear
that the decision of the dispute by Tahsildar
on necessary inquiry and evidence has to
be only with regard to prima facie title
when he is unable to decide possession.
Findings in summary proceedings have no
bearing on the adjudication of title by the
competent Court nor the findings given in
mutation proceedings can be treated to
findings establishing any title. The case
ofRudra Pratap(AIR 1975 All 125) (supra),
thus, does not help the petitioners in the
present case. Other judgments relied by
counsel
for
the
petitioners,
namely,Chandra Kanta Medhi's case(AIR
1976 Gauhati 94) (supra),Bala Prasad's
case(supra),Smt. Pitmo's case(AIR 1978 All
301) (supra) andAwadesh's case(1962 Rev
Dec SOC 26) (supra) were all on Indian
Succession Act, 1925 with regard to
registered Will. There is no dispute with
regard to principles laid down for proof of
Will under Succession Act. The above cases
12 All. Shravan Kumar & Anr. Vs. Addl. Commissioner Ayodhya Division, Ayodhya &Ors.
819
does not consider the jurisdiction of a
mutation Court not are cases in which
nature of jurisdiction under Section 35 of
the Act was considered. The said cases,
thus, do not support the contention of the
petitioners in any manner.

15.In the present case all the three
Courts have not accepted the registered
Will as claimed by the respondents. The
Naib
Tahsildar
has
noted
various
suspicious circumstances. The appellate
Court has also accepted the contention of
Naib Tahsildar regarding holding of Will
suspicious. The revisional Court has also
held that burden to explain the suspicious
circumstances was on the respondents in
which they did not succeed. The revisional
Court accepted the findings of the trial
Court which found the Will suspicious and
not proved. All the three Courts having held
the Will as suspicious after appreciating the
evidence on record, it cannot be held that
they exceeded in their jurisdiction in
deciding the mutation application. As
observed above, the mutation Court has
jurisdiction to examine, the evidence to
find out as to whether transfer or
succession had taken place or not. The
orders passed by mutation Court cannot
be held to be without jurisdiction or in
excess
of
jurisdiction
under
the
provisions of the U.P. Land Revenue Act,
1901. However, findings recorded by
mutation Courts are findings only in
summary
proceedings
and
have
no
bearing when the title is adjudicated by
competent Court on the basis of right
claimed by the petitioners. In view of the
proposition laid down inLal Bachan's
case(2001 All LJ 2950) (supra), I do not
find it a fit case to be entertained under
Art. 226 of the Constitution it being
arisen out of summary proceedings of
mutation under Section 34 of U.P. Land
Revenue Act, 1901."

12. This Court in the case of Rudra
Mani Shukla vs. Subhash Kumar and
Others; 2017 SCC OnLine All 4603,
observed as under:-

"11.Under Section 34 of the Land
Revenue Act, 1901 every person obtaining
possession of any land by succession or
transfer (other than a succession or
transfer which has already been recorded
under Section 33-A); shall report such
succession or transfer to the Tehsildar of
the Tehsil in which the land is situate.

12.Section 35 of the Land Revenue
Act, provides that on receiving a report of
transfer or succession or upon facts
otherwise coming to his knowledge, the
Tehsildar shall make such inquiry as
appears necessary, and if the succession or,
transfer appears to have taken place, he
shall direct the annual registers to be
amended accordingly. Section 40 provides
that all disputes regarding entries in the
annual registers shall be decided on the
basis of possession. Sub-section (2) of
Section 40 provides that if in the course of
inquiry into a dispute under this Section,
the Tehsildar is unable to satisfy himself as
to which party is in posses-sion. He shall
ascertain in summary inquiry who is the
person best entitled to the property and
shall put such person in possession?

13.In the present case, the transfer
was reported by the Sub Registrar also to
the Tehsildar on 21.03.2015, whereon a
proclamation was issued, whether it was in
terms of Rules or not is a separate, matter
which need not be gone into at this stage.
Consequent to the proclamation two
persons
namely
Karuna
Karit
and
Rudramani Shukla filed objections. The
procedure to be followed in such mutation
proceedings has been laid down in Rule A366 to A-384, of Part 3 of Chapter AXXXVII of the U.P. Revenue Court Manual.
820 INDIAN LAW REPORTS ALLAHABAD SERIES
Rule A-367 deals with me report to be
submitted to the Tehsildar under Section 34
and its requisite contents. As per Rule A372 no report shall be deemed to be invalid
merely for reason of some of the particulars
required to be specified having been
omitted or having been incorrectly stated.
In such cases the Tehsildar shall ascertain
from the person making the report or from
any other source considered convenient,
such particulars as may be necessary to
complete or correct the report.

14.As per Rule A-373 upon the receipt
of such a report under section 34 or on
facts otherwise coming to his knowledge
the Tehsildar shall cause a proclamation to
be issued free of charge in the manner
provided in Section 197 of the Land
Revenue Act, notifying that proceedings for
mutation of names have been started. This
rule further provides that "without waiting
for the issue of proclamation, the Tehsildar
shall make necessary enquiries about the
existing entries in the relevant papers and
other details pertaining to the land in
question from the office of the Registrar
Kanungo and from the Halqa Lekhpal also,
if necessary". Rule A-374 deals with the
proclamation and its contents. Rule A-375
which is relevant for present case says that
"the proclamation shall also require the
person who has obtained possession also
any other persons who may wish to file
objection to attend on the date to be
specified in the proclamation and for
producing such evidence as may be in his
possession in support of his objection".

15.As this court is concerned with the
maintainability of the objection in the
proceedings under Section 34 of the Act,
1901 for which orders were reserved on
26.12.2016 and ultimately pronounced on
02.01.2017 the aforesaid Rule A-375 makes
it very clear that any other person who may
wish to file objection can do so and he can
also produce evidence in support of his
objection. In the present case on a reading
of objections filed by the petitioner and
considering the provisions contained in
Rule A-375, it cannot be said that objection
on
his
part
was
not
maintainable.
Moreover the order having been reserved
for pronouncement on maintainability of
the objection, the issue which should have
been decided was such maintainability,
instead, the Tehsildar decided the merits of
the controversy itself as also the validity of
the objections on merits and ordered the
mutation of the name of respondent No. 1
in place of respondent No. 2. This in the
opinion of this court was not the correct
procedure adopted by him. There was no
necessity for such a hurry in the matter. No
doubt the rule speaks of such enquiry on
his part as may be necessary but even in
matters where a discretion is vested it
should be used judiciously. Moreover, in
this context Rule A-379 which pertains to
proceedings under Section 34 based on
"transfer" is relevant as it says that in all
cases of transfer where an objection is filed
under Rule A-375, the Tehsildar shall
record necessary evidence adduced by the
parties. He may also ask for evidence about
it, if he has reasons to believe that
declaration made in the affidavit under
Rule A-376 is not sufficient and in order.
On completion of the enquiry, he shall
submit a report along with connected file to
the Collector after having given a date to
the parties to appear in that Court. The
Collector may make such further enquiry
as he may consider necessary and he shall
dispose of the matter after giving an
opportunity to the parties to be heard. This
part of the rule requiring the Tehsildar to
send a report to the Collector is no longer
in operation, though still on statute book,
as,
under
the
substantive
provision
contained in Sections 34 and 35 etc. it is
12 All. Shravan Kumar & Anr. Vs. Addl. Commissioner Ayodhya Division, Ayodhya &Ors.
821
the Tehsildar who is competent to pass a
final order in such mutation proceedings
but nevertheless the use of word "on
completion of the enquiry" are important
as they are indicative of an enquiry to be
conducted by the Tehsildar in terms
mentioned in Rule A-379 read with section
35 and 40, as the case may be.

16.As far as succession is concerned
the relevant rules in this regard are A378(a) and A-378(b). The two rules relate
to two different situations of undisputed
succession and disputed succession but as
far as the present case is concerned it being
based on transfer through Gift deed the
relevant rule is as aforesaid Rule A-379.

17.In the present case as already
observed earlier the Tehsilar should have
decided the maintainability and thereafter
proceeded to hold enquiry as aforesaid. In
matters of mutation based on transfer the
rule does not make any distinction between
a disputed case and an undisputed case as
is evident from the use of word "in all cases
of transfer".

18.Mutation
proceedings
are
important proceedings as, entries based
thereon in the record of rights (Khatauni)
are presumed to be correct under Section
35 of the Land Revenue Act, 1901 as also
Section 40 of the U.P. Revenue Code, 2006
and practically all transaction are made
after perusing such entries. No doubt in
matters of sale the purchaser is required to
make due inquiry with diligence as to the
real owner and any dispute in respect
thereof but if the name is recorded in the
revenue records, sale transaction etc., are
easily made. True it is that Revenue records
are not documents of title by themselves
and are for purposes of realization of
revenue but in view of the presumption
attached to them especially in view of the
contents of Khatauni as prescribed in
Section 31 of the Revenue Code, 2006 their
importance in practical terms hardly needs
to be emphasized. It is easy to say that an
aggrieved party may establish his title in
regular proceedings but the fact is that
such proceedings go on for years together,
therefore, judicious application of mind in
mutation proceedings, even though they are
summary proceedings, can at times prevent
injustice and prolonged litigation. This is
not to suggest that interference in such
matters should be made in a routine
manner."

13. As per the observations of this
Court in the judgment passed in the case of
Madhav Pandey and others vs. Board of
Revenue and others, (2002) 2 AWC 1311;
the mutation proceedings are summary in
nature and writ petitions arising out of the
mutation proceedings are not entertainable
under Article 226 of the Constitution of
India except where there is lack of
jurisdiction. In paragraph No. 29 of the said
judgement, it has been categorically held as
under:-

"29. The last submission of the counsel
for the Petitioner is that the revenue court
cannot interfere with the finding of fact and
the revisional court i.e., the Board of
Revenue
has
wrongly
exercised
the
jurisdiction , hence this court may set aside
the order of the board of revenue. As
noticed above, there is difference between
lack of jurisdiction and erroneous exercise
of jurisdiction in a case. The present
proceedings arising out of the mutation
proceedings which is summary proceeding
and the writ petitions against the summary
proceedings are not entertained under
Article 226 of Constitution of India. There
is no need to consider the question as to
whether the revisional court has committed
any error in exercise of jurisdiction.
Assuming for argument sake that there is
822 INDIAN LAW REPORTS ALLAHABAD SERIES
some error in exercise of jurisdiction by the
Board of Revenue, the said error will not
make the order without jurisdiction. As
held above, the writ petition arising out of
the
summary
proceedings,
can
be
entertained only when there is lack of
jurisdiction. It being not a case of lack of
jurisdiction, no interference is called for in
the impugned order on the basis of the
above submission of the counsel for the
petitioners."

14. In the case of Faqruddin v. Tajuddin
(2008) 8 SCC 12 the Hon'ble Apex Court
has held that the revenue authorities of the
State are concerned with revenue. Mutation
takes place only for certain purposes. It is
well settled that an entry in revenue record
is not a document of title. Revenue
authorities cannot decide the question of
title.

15. In the case of Suraj Bhan v.
Financial Commissioner, (2007) 6 SCC
186, the Hon'ble Apex Court has held that
an entry in Revenue Records does not
confer title on a person whose name
appears in Record of Rights. It is the 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 the title to the property is
concerned, it can only be decided by a
competent Civil Court.

16.