# Smt. Hadisul Nisha v. Addl. Commissioner (J) & Ors

- **Citation:** (2021) 6 ILRA 149
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-25
- **Case number:** Misc. Single No. 5147 of 2015
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-hadisul-nisha-v-addl-commissioner-j-ors-47002
- **Pages:** 12

## Headnote

(A) Civil Law - Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 -
Sections 171 (1) , 172 (2) - Uttar Pradesh
Land Revenue Act, 1901 - Sections 34 , 35
, 219 - Uttar Pradesh Revenue Code 2006
- Sections 34, 35 - Land Law - Excess
jurisdiction -Mutation proceedings being
summary proceedings, only decide the
question of liability to pay taxes/land
revenue to the Government - mostly
decided on the basis of possession - a
proclamation is made on the basis of
mutation application in favour of a person
who has obtained possession on his
having shown to the court evidence that
he was in possession, in support of his
objection. (Para - 15,27)

Petitioner (widow) - name recorded on the
basis of succession - Opposite Party No.3
(brother of Petitioners husband) initially filed an
application for mutation on the basis of forged
Will deed - dismissed for want of prosecution -
application for recall of the order - not pressed
by Opposite Party No.3 - after nearly ten years
moved another application for mutation of
property - ground - remarriage of the
petitioner - rejected by the Tehsildar - Appeal
before Sub Divisional Magistrate - allowed exparte - Revision before Additional Commissioner
- rejected - observations being prejudicial to
the petitioner's interest - holding her to have
remarried - dis-entitled to inherit the property of
her late husband - petitioner filed Writ
Petition.(Para - 2,3,4,5)

HELD:- There is no finding recorded either by
the Appellate Court or by the Revisional Court
as to who was in actual possession of the
property in question and therefore liable to pay
revenue to the Government. The orders
impugned have placed reliance on the issue of
whether petitioner had remarried or not. The
evidence
produced
by
either
side
being
inconclusive, still a finding was recorded that
the petitioner had remarried and therefore was
disentitled to the property of her late husband
as per Sections 171 and 172 of the U.P.Z.A. &
L.R. Act. The orders impugned being clearly in
excess
of
jurisdiction
conferred
on
such
authorities, and also against the statutory
provisions of the U.P. Land Revenue Act, are set
aside. (Para - 29,30)
150 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ Petition allowed. (E-6)

List of Cases cited:-

## Text

_Characters 0–39,919 of 40,736. This is a partial read: ask again with offset=39919 for what follows._

6 All. Smt. Hadisul Nisha Vs. Addl. Commissioner (J) & Ors.
149

15. The Court below after considering
all the materials on record has rightly come
to the conclusion that the defendantappellant is not entitled for any relief,
under Section 24 of the Hindu Marriage
Act, 1955 and has rightly rejected the
application 18-ga filed by the defendantappellant.

16. However, considering the peculiar
facts and circumstances of the case, the
Principal Family Judge, Jaunpur is directed
to make every possible endeavour to decide
the Case No. 943 of 2015 (Sushil Kumar
Yadav Vs. Geeta Devi) filed u/s 13 of the
Hindu Marriage Act within a period of six
months from the date of filing of a certified
copy of this order.

17. Subject to the aforesaid direction,
this appeal is ,accordingly, dismissed.

18. No order as to cost.
----------

(2021)06ILR A149
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.06.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 5147 of 2015

Smt. Hadisul Nisha ...Petitioner
Versus
Addl. Commissioner (J) & Ors.
 ...Respondents

Counsel for the Petitioner:
S.K.
Upadhyay,
Pradeep
Kumar
Maurya,
Pramesh Kumar Jaiswal

Counsel for the Respondents:
C.S.C., Adnan Ahmad, B.K. Singh, Varun Pratap
Singh
(A) Civil Law - Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 -
Sections 171 (1) , 172 (2) - Uttar Pradesh
Land Revenue Act, 1901 - Sections 34 , 35
, 219 - Uttar Pradesh Revenue Code 2006
- Sections 34, 35 - Land Law - Excess
jurisdiction -Mutation proceedings being
summary proceedings, only decide the
question of liability to pay taxes/land
revenue to the Government - mostly
decided on the basis of possession - a
proclamation is made on the basis of
mutation application in favour of a person
who has obtained possession on his
having shown to the court evidence that
he was in possession, in support of his
objection. (Para - 15,27)

Petitioner (widow) - name recorded on the
basis of succession - Opposite Party No.3
(brother of Petitioners husband) initially filed an
application for mutation on the basis of forged
Will deed - dismissed for want of prosecution -
application for recall of the order - not pressed
by Opposite Party No.3 - after nearly ten years
moved another application for mutation of
property - ground - remarriage of the
petitioner - rejected by the Tehsildar - Appeal
before Sub Divisional Magistrate - allowed exparte - Revision before Additional Commissioner
- rejected - observations being prejudicial to
the petitioner's interest - holding her to have
remarried - dis-entitled to inherit the property of
her late husband - petitioner filed Writ
Petition.(Para - 2,3,4,5)

HELD:- There is no finding recorded either by
the Appellate Court or by the Revisional Court
as to who was in actual possession of the
property in question and therefore liable to pay
revenue to the Government. The orders
impugned have placed reliance on the issue of
whether petitioner had remarried or not. The
evidence
produced
by
either
side
being
inconclusive, still a finding was recorded that
the petitioner had remarried and therefore was
disentitled to the property of her late husband
as per Sections 171 and 172 of the U.P.Z.A. &
L.R. Act. The orders impugned being clearly in
excess
of
jurisdiction
conferred
on
such
authorities, and also against the statutory
provisions of the U.P. Land Revenue Act, are set
aside. (Para - 29,30)
150 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ Petition allowed. (E-6)

List of Cases cited:-

1. Jaipal (Minor) Vs Board of Revenue, UP
Allahabad, 1956 ALJ 807 (DB

2. Smt. Sawarni Vs Inder Kaur & ors., 1996 (6) SCC

3. Lal Bachchan Vs Board of Revenue, 2002 (22)
LCD 115

4. Bindeshwari Vs Board of Revenue, 2002 (1)
AWC 498

5. Puran Singh Vs Board of Revenue, 2004 (1)
AWC 853

6. Jagdish Narain & ors. Vs Board of Revenue,
2007 (1) ADJ 434

7. Suraj Bhan & ors. Vs Financial Commissioner
& ors., (2007) 6 SCC 186

8. Buddh Pal Singh Vs St. of U.P. & ors., 2012
(5)ADJ 216

9. Vinod Kumar Rajbhar Vs St. of UP & ors.,
2012 (2) AWC 1982

10. Ashok Kumar Vs Chairman Board of
Revenue UP Lucknow, 2013(1) ADJ 646

11. Mohammed Ismael @ Kallu Vs Board of
Revenue, 2013 (4) AWC 3687

12. Vijay Shankar Vs Additional Commissioner
(administration) Lko. Division & ors., 2015 (3)
AWC3216

13. Tulsi Ram & ors. Vs Additional Commissioner
Judicial Lko. & ors., 2016 (34) LCD 250

14. Awadhesh Singh Vs Additional Commissioner
& ors., 2017 (9) ADJ 378

15. Gaj Ram Vs St.of UP & ors., 2017 (5) AWC
5217

16.
Birendra
Kumar
Singh
&
ors.
Vs
Commissioner, Devi Patan Mandal, & ors., 2019
(12) ADJ 82
17. Radhey Shyam & ors. Vs St. of U.P. & ors.,
2016 (34) 4 LCD 1793

18. St. of M.P. Vs Babulal, AIR 1977 Supreme
Court 1718

19. Rudramani Shukla Vs Subhash Kumar, 2017
(3) ADJ 510

20. Vijay Shankar Vs Addl Commissioner, 2015
(33) LCD 1073)

21. Amarnath Arora Vs Board of Revenue U.P.
Lko., 2019 LCD 775

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. This writ petition has been filed by
the petitioner Hadisulnisha for quashing of
the order dated 23.01.2014 passed by the
Sub Divisional Magistrate Sultanpur, in
Appeal No. 89 of 2014, and for quashing of
the order dated 13.04.2015, rejecting the
petitioners' restoration/recall application as
also for quashing of the order dated
03.08.2015 passed by the Additional
Commissioner in Revision No. 2719 under
section 219 of the UP Land Revenue Act.

2. It is the case of the petitioner that
she is the widow of Late Kamaal Ahmad
son of Nazir Khan, the recorded tenure
holder of several plots of land situated in
village Seur Chamurkha, Pargana Bharosa,
Tehsil Sadar, District Sultanpur. Late Nazir
Khan had two sons, Late Kamaal Ahmad
and one Ansar Ahmad, who has been
arrayed as the opposite party no.3. Kamaal
Ahmad the husband of the petitioner died
in June 1999 and the petitioner''s name was
recorded under PA 11 by the Revenue
Inspector on the basis of succession. The
opposite party No.3being the real brother of
Kamaal
Ahmad
initially
filed
an
application for mutation on the basis of
forged Will deed which was dismissed for
6 All. Smt. Hadisul Nisha Vs. Addl. Commissioner (J) & Ors.
151
want of prosecution. An application was
moved for recall of the order which was
subsequently not pressedby Opposite Party
No.3.

3. The opposite party no.3 after nearly
ten years moved another application on
19.01.2009 for mutation of property of late
Kamaal
Ahmad
on
the
ground
of
remarriage of the petitioner after the death
of his brother. It was alleged that the
petitioner had married one Atiq Ahmad
resident of village Rethua, Pargana Haveli,
District Faizabad. The said mutation
application was rejected by the Tehsildar
on 08.11.2013. The opposite party No.3
preferred an Appeal before the Sub
Divisional Magistrate (hereinafter referred
to as "opposite party no.2") on 12.01.13,
registered as Appeal No.89/13.

4. It is the case of the petitioner that
wrong address of the petitioner, showing
her to be resident of village Rethua District
Faizabad, was mentioned in the Appeal as a
result whereof no notice was ever served
upon the petitioner. The Appellate Court
presumed service upon the petitioner on the
ground that notice had been sent through
ordinary post, through registered post, and
then substituted service was adopted
through publication in the newspaper. The
appeal
was
allowed
ex-parte
on
23.01.2014. The petitioner having derived
knowledge of the said appellate order
through
village
gossip
moved
an
application for restoration/recall of order
dated 23.01.2014 on 03.02.2014 but the
same was rejected by the Appellate Court
by observing that notice had been sent on
the address mentioned in the Appeal and
The Restoration application lacked details
of date of deriving knowledge of the order
passed in Appeal and the mode and manner
of deriving such knowledge.

5. The petitioner being aggrieved filed
a
Revision
before
the
Additional
Commissioner who rejected the same by
making certain observations also on the
merit of the case as set up by the parties.
Such observations being prejudicial to the
petitioner's interest and holding her to have
remarried and thus being dis-entitled to
inherit the property of her late husband, the
petitioner has approached this Court in
Writ Petition.

6. This Court has gone through the
pleadings on record. The petitioner in
paragraph 10 of the writ petition states
clearly that she is still living in the house
which had been left by her late husband
late Kamaal Ahmad and had not married
anyone after his death. It is her case that
she is still in possession over the entire
property left by her husband and to
substantiate her claim she has filed
photocopies of all relevant documents
including electricity bills, ration card, voter
ID card, Aadhaar card, Population Register,
Family Register and copy of receipt of Gas
connection and Bank passbook issued to
her showing her address as village Seur
Chamurkha, collectively as Annexure 8 to
the writ petition.

It has been submitted in paragraph 16
of the writ petition that the opposite party
no.3 had filed a Revision against an order
dated 14.02.2014 in a different proceeding
under section 210 of the Land Revenue
Act, where he had shown the address of the
petitioner as Seur Chamurkha, Pargana
Bharosa, Tehsil Sadar, district Sultanpur.
True copies of the memo of the Revision
and order passed on 03.06.2014 have been
filed Annexure 12 and 13 to the petition.

It has been further submitted that the
petitioner challenged the order dated
03.06.2014 before this Court where a
152 INDIAN LAW REPORTS ALLAHABAD SERIES
direction was issued to the SDM to decide
the restoration application expeditiously.

There is reference of another Writ
Petition number 3340 (M/S) of 2015 where
in the Court directed the Revisional Court
to hear the matter positively on 26.06.2015,
and in case due to unavoidable reasons it
could not be heard on 26.06.2015, then it
may be taken up on the next working day
and so on and so forth till it was finally
decided. After service of the order passed
by this Court, the Revisional Court was not
deciding the Revision and therefore the
petitioner filed a Contempt Petition No.
1439 (C) of 2015:Hadisulnisa versus Dr.
Abha Gupta. This Court directed the CSC
to
seek
instructions.
The
Addl
Commisioner Dr Abha Gupta, who was
under transfer, preponed the date of listing
of the Revision in the absence of the
counsel for the petitioner and decided the
same 3.8.2015 before leaving Sultanpur.
The petitioner came to know of the order
passed on 03.08.2015 only on 04.08.2015
when the petitioner reached the Court as
the date had been fixed in the Revision
earlier as 04.08.2015.

7. It has been submitted that the
Revision had been decided on 03.08.2015
without appreciating evidence produced by
the petitioner to show that she was still
living in Seur Chamurkha and was in
possession of the property in question. In
the order passed by the Revisional Court it
has observed that evidence existed both for
and against the petitioner, and that is it is
doubtful whether she had remarried or not
after the death of her late husband, yet,
while disposing of the Revision the
Additional Commissioner held that the
weight of evidence against the petitioner
was sufficient and therefore concluded that
she had indeed remarried, thus going
beyond jurisdiction and declaring the right
of the petitioner to claim succession having
been lost on remarriage of the petitioner,
which could only have been done by the
competent court of law in a suit for
declaration.

8. It has been further submitted that
the opposite party No.3 had filed a Caveat
in the Court of Commissioner Ayodhya,
showing the petitioner as resident of village
Seur Chamurkha ,Pargana Barosa,district
Faizabad whereas the village of the
petitioner falls in district Sultanpur.

9. It has been further argued by the
learned counsel for the petitioner that after
the order passed by the appellate court on
23.01.2014 the opposite party No.3 got his
name mutated in the revenue record on the
same day and then sold out the property in
dispute during the pendency of the
Revision on 24.05.2015.

10. In the counter affidavit filed on
behalf of the opposite party No.3, in reply
to paragraph 10 of the writ petition it has
been stated only that the petitioner never
moved any application for getting the
entries in the Parivar Register of village
Rethua District Faizabad deleted and that
the voter ID card and Aadhaar card etc.,
filed as evidence of residence in village
Seur Chamurkha District Sultanpur were
misleading and the petitioner was herself
responsible for not getting her details
corrected in the voter I card and Aadhaar
card etc. because while enjoying married
life with her second husband at the Rethua,
she wanted to retain the property of her
first husband in Seur Chamurkha.

In response to the specific pleadings in
the Writ petition that in two documents i.e.
a Caveat application and in a Revision the
opposite party No.3 had mentioned the
6 All. Smt. Hadisul Nisha Vs. Addl. Commissioner (J) & Ors.
153
address of the petitioner as village Seur
Chamurkha, it has been only stated that the
concurrent findings of fact recorded by the
learned three courts below should not be
interfered with in writ jurisdiction.

11. With regard to the argument
raised by the learned counsel for the
petitioner
that
the
Additional
Commissioner preponed the date of hearing
of Revision from 04.08.2015 to 03.08.2015
in the absence of the learned counsel for
the Revisionist, it has been submitted that it
is evident from the record that the counsel
for the petitioner had himself moved an
application on 26.06.2015 for summoning
lower court record while also providing
copy of the order dated 15.06.2015 passed
by this Court to the learned Revisional
Court. The Revisional Court summoned the
lower court file and fixed next date for
hearing as 04.08.2015 on the application
moved by the petitioner on 26.06.2015.
However, on 01.07.2015 the petitioner filed
a contempt petition and concealed the fact
that she had herself got the next date fixed
in the matter as 04.08.2015. When the
Revisional Court received Fax information
regarding filing of the contempt petition by
the petitioner, the Revisional Court called
the Advocates of both the parties and after
hearing them on 01.08.2015, fixed the date
for further hearing on 03.08.2015. Copies
of orders dated 01.08.2015, 03.08.2015,
and 04.08.2015 have been filed along with
the counter affidavit to show that there was
no malice on the part of the Revisional
Court in preponing the date for hearing of
the Revision. It has also been submitted
that on 01.08.2015 the news relating to
transfer of the Additional Commissioner
was published in the newspapers and on the
same day that is on 01.08.2015 Additional
Commissioner had preponed the date for
further
hearing
from
04.08.2015
to
03.08.2015 in the presence of the counsel
for both the parties.

12. The counsel for the opposite party
no.3 further argued on the merits of the
case that the petitioner solemnized a second
marriage on 25.12.2008, and when the
opposite party No.3 came to know of her
second marriage he filed an application
under Section 34 which was wrongly
rejected by the Tehsildar Sadar on
08.11.2013, without looking into evidence
produced by him. There were statements of
the Gram Pradhans of village Rethua and
village Hasanpur, (the parental village of
the petitioner), as well as the order of the
Additional
Development
Officer
(Panchayat) recording the name of the
petitioner in the Family Register of Rethua.
Also before the Additional Commissioner
was the report of the Tehsil authorities
dated 7.6.2014 submitted in pursuance of
the order passed by the Sub Divisional
Magistrate Sadar. Even the Investigating
Officer in the FIR lodged by the petitioner
regarding cheating and fraud allegedly
committed by the opposite party No.3, had
submitted a report on the basis of
statements taken by the him of several
villagers of village Rethua that the
petitioner had married Atiq Khan of the
said village.

13. In the counter affidavit filed by
the respondent No.3 the contents of
paragraph 37 to 66 of the writ petition have
been denied altogether in one paragraph 14,
and it has been submitted that the
appropriate remedy for the petitioner is to
file a Regular Suit for declaration of rights
and the Writ Petition should not be
entertained.

14. The learned counsel for the
respondent No.3, Sri Adnan Ahmad, has
154 INDIAN LAW REPORTS ALLAHABAD SERIES
also raised the preliminary objection
regarding the maintainability of the writ
petition against orders passed in mutation
proceedings. He has referred to several
judgements both by the Supreme Court and
by a Division Bench and by Coordinate
Benches of this Court to substantiate his
argument. The judgements cited by the
learned counsel are being listed here in
below:-

(i) Jaipal (Minor) versus Board of
Revenue, UP Allahabad, 1956 ALJ 807
(DB);

(ii) Smt. Sawarni versus Inder Kaur
and others 1996 (6) SCC;

(iii) Lal Bachchan versus Board of
Revenue, 2002 (22) LCD 115;

(iv) Bindeshwari versus Board of
Revenue 2002 (1) AWC 498;

(v) Puran Singh versus Board of
Revenue, 2004 (1) AWC 853;

(vi) Jagdish Narain and others versus
Board of Revenue 2007 (1) ADJ 434;

(vii) Suraj Bhan and others versus
Financial Commissioner and others 2007
(6) SCC 186;

(viii) Buddh Pal Singh versus State
of U.P. and others 2012 (5)ADJ 216;

(ix) Vinod Kumar Rajbhar versus
State of UP and others 2012 (2) AWC
1982;

(x) Ashok Kumar versus Chairman
Board of Revenue UP Lucknow 2013(1)
ADJ 646;

(xi)
Mohammed
Ismael@Kallu
versus Board of Revenue 2013 (4) AWC
3687;

(xii)
Vijay
Shankar
versus
Additional
Commissioner
(administration) Lucknow Division and
others 2015 (3) AWC3216;

(xiii) Tulsi Ram and others versus
Additional
Commissioner
Judicial
Lucknow and others 2016 (34) LCD 250;

(xiv)
Awadhesh
Singh
versus
Additional Commissioner and others
2017 (9) ADJ 378;

(xv) Gaj Ram versus State of UP and
others 2017 (5) AWC 5217;

(xvi) Birendra Kumar Singh and
others versus Commissioner, Devi Patan
Mandal, and others 2019 (12) ADJ 82;

15. The last two judgements have
been
rendered
by
this
Court
after
considering the law laid down in various
judgements referred to hereinabove, to
observe that ordinarily Writ Petitions are
not entertained against orders passed in
mutation proceedings for the simple reason
that even if such orders are interfered with
and favourable order is granted to the writ
petitioner, it would not amount to settling
of
rights
of
the
parties.
Mutation
proceedings being summary proceedings,
only decide the question of liability to pay
taxes/land revenue to the Government.
They are mostly decided on the basis of
possession and in case the Tehsildar is
unable to satisfy himself as to which party
is in possession, he has to ascertain in a
summary enquiry as to who is the person
best entitled to the property, and shall put
such person in possession. However for
determination/declaration of right, title and
interest to property the parties would still
have to approach the competent Revenue or
Civil Court, as has been observed by the
Supreme Court in Smt. Sawarni versus
Inder Kaur; in paragraph 7 - "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 in
question".

16. The learned counsel for the
petitioner on the other hand has placed
6 All. Smt. Hadisul Nisha Vs. Addl. Commissioner (J) & Ors.
155
reliance upon judgements of this Court also
rendered by Coordinate Benches, where the
Courts have observed that despite the
settled position with regard to reluctance of
the Writ Court to interfere in orders passed
in mutation proceedings, there will be facts
and circumstances peculiar to a case, which
may justify interference in writ jurisdiction.
The learned counsel for the petitioner has
placed reliance upon Radhey Shyam and
others versus State of U.P. and others, 2016
(34) 4 LCD 1793, wherein this Court had
observed on the basis of observations made
by the Supreme Court in State of Madhya
Pradesh
versus
Babulal,
AIR
1977
Supreme Court 1718, that a writ of
Certiorari should be issued where the
Lower Court acts illegally and there is error
on the face of the record. If the court
usurped jurisdiction, the record is corrected
by
Certiorari.
This
becomes
more
imperative where the Revisional Court has
failed to exercise its jurisdiction vested in
it, and such an order, even if passed in
mutation proceedings, cannot be sustained
in the eye of law and writ petition would be
maintainable against such an order.

17. The Court in the case of Radhey
Shyam (supra) observed in paragraph 18 -
"although it is settled that mutation
proceedings is fiscal in nature and the
orders passed therein do not decide the
right and title of the parties, ....., orders
passed therein being summary in nature,
writ petition would not be maintainable,
but ..... since there is jurisdictional error,
therefore the writ petition would lie against
such orders, where Revisional Court has
failed to exercise the jurisdiction vested in
it. It may also be noticed that although the
orders deciding the mutation case to do not
decide the right and title of the parties and
the judgements rendered therein are not
binding upon the court deciding the title
....., but it may be kept in mind that the
person whose name is recorded in the
Revenue Record can transfer the land
through registered sale deed, gift deed etc.
In case the sale deed is executed only
because of recording of name without
having any valid title, the remedy, for the
aggrieved person would be to file a suit but
for cancellation of sale deed, not for
declaration of rights which would consume
a very long time and in the meantime even
the nature of the land will be changed.
Further, the possession would be enjoyed
by the persons in whose favour and order
of mutation has been passed or the
transferee without there being any valid
title, and the person having valid title will
become a loser for years together, and in
some cases if the land has gone into the
hands of mafia or musclemen, the rightful
owner may not be able to get the fruits of
litigation during his life time. These
contingencies and situations of the cases,
although, may not have legal weight but the
factual matrix and the reality of the same
cannot be brushed aside while entertaining
writ petition against orders passed in
mutation cases."

18. This Court in Rudramani Shukla
versus Subhash Kumar, 2017 (3) ADJ 510;
made similar observations in paragraph 17
which are being quoted hereinbelow:-

"17.
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 transactions are made
after perusing such entries. No doubt in
matters of sale the purchaser is required to
make enquiry with due diligence as to the
real owner and any dispute in respect
156 INDIAN LAW REPORTS ALLAHABAD SERIES
thereof, but if the name is recorded in the
revenue records, sale transaction etcetera,
are easily made. True it is that Revenue
Records are not documents of title by
themselves and are for purposes of
realisation of revenue, but in view of the
presumption attached to them, specially 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 emphasised. It is
easy to say that an aggrieved party may
establish his right 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."

19. The Courts in the aforecited
decisions have laid down a few parametres
for entertaining writs arising out of
mutation proceedings. The exceptions that
have been carved out being very few, for
example:-

i) If the order is without jurisdiction;

ii) If the rights and title of the parties
have
already
been
decided
by
the
competent court, and that has been varied
by the mutation courts;

iii) If the mutation has been directed
not on the basis of possession or simply on
the basis of some title deed, but after
entering into a debate of entitlement to
succeed the property, touching into the
merits of the rival claims;

iv) If rights have been created which
are against statutory provisions of any
Statute, and the entry itself confers a title
on the petitioner by virtue of the provisions
of the U.P. Zamindari Abolition and Land
Reforms Act;

v) Where the orders impugned in the
writ petition have been passed on the basis
of fraud or misrepresentation of facts, or by
fabricating the documents by anyone of the
litigants.

vi) Where the courts have not
considered the matter on merits for
example the courts have passed orders on
restoration applications etc (Vijay Shankar
v Addl Commissioner; 2015 (33) LCD
1073)

20. This Court has perused the orders
passed by the Tehsildar dated 08.11.2013
by which the Tehsildar has rejected the
application for mutation filed by the
opposite party no.3. The Tehsildar noticed
that the parties to the litigation were both
Muslims and governed by the Muslim law.
The burden was upon the opposite party
no.3 to prove that the petitioner Hadisul
Nisha had remarried Atiq Khan after the
death of her first husband. The opposite
party No.3 had failed to produce any
documentary evidence like Nikahnama.
The Maulvi who solemnized the marriage
was also not produced. There was no
mention of Dower or Mehar by any of the
witnesses produced by the Opposite Party
No.3. The photocopy of the Parivar
Register of village Rethua produced by the
opposite
party
No.3
showed
clear
interpolation as first the name Rafiq Ul
nisha was recorded which was scored out
and thereafter the name of Hadisul Nisha
shown as wife of Atiq Ahmad. It was also
found by the Tehsildar that initially a copy
of the Parivar Register which was produced
was dated 05.02.2009 where after another
photo copy was produced of the same
Register dated 20.05.2010, wherein again
there was interpolation, and the name of the
wife of Atiq Khan was initially shown as
6 All. Smt. Hadisul Nisha Vs. Addl. Commissioner (J) & Ors.
157
Rafiq Ul Nisha, which was scored out and
the name of the petitioner written over it.
The order
dated 22.03.2009 of
the
Additional
Development
Officer
(Panchayat)
was
passed
during
the
pendency of the mutation application. None
of the witnesses produced by the opposite
party No.3 had stated that they were
actually
present
during
the
Nikaah
ceremony of Hadisul Nisha with Atiq
Ahmad. The opposite party No.3 also
admitted in his cross-examination that the
petitioner used to live in the same house as
Opposite party No.3 which was the joint
property of the opposite party No.3 and the
late husband of the petitioner Kamaal
Ahmad. It was stated by him that he used to
pay the electricity bills, however, the
petitioner Hadisul Nisha had produced
copies of Electricity Bills of the same
house paid by her. She had also produced
copies of Irrigation Receipts and copies of
Parivar
Register
of
village
Seur
Chamurkha, showing her to be the widow
of Kamaal Ahmad and living in the same
village. The opposite party No.3 could not
prove the remarriage of the petitioner on
the basis of evidence led by him and
therefore his application was rejected.

21. However, the Sub-Divisional
Magistrate initially allowed the Appeal
filed by the opposite party No.3 and later
also rejected the recall application filed by
the petitioner on 23.01.2014. The Sub
Divisional Magistrate had placed reliance
on the opposite party No.3 arguments in
Appeal that the name of the petitioner
having been recorded in the Family
Register of village Rethua, as wife of Atiq
Ahmad since 2009, and there being
certificates issued by the Gram Pradhans of
Seur Chamurkha, Rethua and Hasanpur, to
the effect that Hadisul Nisha had married
Atiq Khan, the burden was now upon
Hadisul Nisha to prove that she had not
remarried after the death of Kamaal
Ahmad. It was observed that despite notice
no documentary or oral evidence was
produced by the petitioner to show that the
Appellant had made a false claim. The Sub
Divisional Magistrate observed that on
summoning the lower Court Record, and
even after Gazette publication of Notice,
the respondent Hadisul Nisha had failed to
appear. The Panchayat Register maintained
under Section 5 of the Panchayat Raj Act
showed the name of Hadisul Nisha as wife
of a Atiq Ahmad resident of village Rethua
District Faizabad. Hadisul Nisha had not
made any effort to get the alleged wrong
entry deleted or corrected. There was
additional
evidence
in
the
form
of
affidavits of Gram Pradhans of villages
Rethua, Seur Chamurkha and Hasanpur,
that Hadisul Nisha had remarried. As per
law settled by the High Court reported in
1980 ALJ 590 ; it could be said that a
Muslim lady remarrying after death of her
husband lost her right to the property of her
late husband. Also under Section 171 (1)
and section 172 (2) of the U.P.Z.A.& L.R.
Act, a widow who remarries loses her right
to the property of her late husband. The
order passed by Tehsildar was set aside,
and direction was issued that the name of
the opposite party No.3 be recorded in the
Revenue Records as successor to the
property of Kamaal Ahmad.

22. The Revisional Court after noting
the facts as mentioned in the order dated
08.11.2013, and also in the order dated
23.01.2014, framed an issue as to "whether
the Revisionist had remarried after the
death of her late husband? "

It
observed
that
the
Election
Commission had issued Voters ID card on
15.07.2011 showing the Revisionist to be
158 INDIAN LAW REPORTS ALLAHABAD SERIES
widow of Kamaal Ahmad r/o Village Seur
Chamurkha. The Parivar Register of village
Seur Chamurkha issued on 27.04.2015,
also showed the Revisionist as widow of
late Kamaal Ahmad. Another copy of the
same
Family
Register
issued
on
21.08.2003, also showed the petitioner as
widow of late Kamaal Ahmad. The original
Electricity Bill dated 15.05.2007 also
showed the name of the husband of the
petitioner as late Kamaal Ahmad. Similarly
Ration Card Number 198402 issued to her
showed her husband''s name as Kamaal
Hamad. The FIR filed on 28.02.2009 in PS
Kotwali Nagar, Sultanpur showed the name
of the husband of the petitioner as late
Kamaal Ahmad. The original Irrigation
Receipt dated 18.02.2010 issued in the
name of the revisionist, showed her as
widow of late Kamaal Ahmad. A second
Irrigation Receipt also produced in original,
dated
28.06.2010,
also
showed
the
petitioner's late husband as Kamaal Ahmad.
A Surety Bond with photograph of the
revisionist, duly verified by the Additional
District and Session Judge, Sultanpur, on
12.10.2011, also showed the petitioner to
be residing in village Seur Chamurkha
District Sultanpur, and her husband being
late Kamaal Ahmad. The certificate issued
by the village Gram Pradhan of Seur
Chamurkha dated 26.10.2010 which has
been relied upon by the Additional District
and Sessions Judge in his order dated
12.10.2011 showed the petitioner to be
widow of late Kamaal Ahmad.

23. On the other hand, the opposite
party no.3 had also produced copies of
family register of village Rethua, Tehsil
Sohawal,
district
Faizabad
dated
17.01.2009,
05.02.2009,
25.03.2009
showing the name of Hadisulnisha as wife
of Atiq Ahmad. The Area Lekhpal had
submitted a report on 27.03.2012 that
Hadisulnisha's parental house was in
Village Hasanpur, and her first marriage
took place in village Seur Chamurkha, and
on death of Kamaal Ahmad she had
married again in the village Rethua . This
report was based upon certificate issued by
the the gram Pradhan of village Rethua
dated 25.03.2012. The Village Panchayat
Officer also issued another certificate dated
08.06.2010 that Hadisulnisha was residing
in village Rethua after marrying Atiq
Ahmad. Information given by Village
Development Officer of Seur Chamurkha
dated 20.9.2011 was to effect that in the
Family
Register
of
the
name
of
Hadisulnisha wife of late Kamaal Ahmad
was missing.

24. In paragraph 8 of the Revisional
order the Additional Commissioner has
observed that evidence existed in favour of
both the parties and it was doubtful whether
the Revisionist had remarried after the
death of her first husband. However, the
Additional Commissioner relied upon the
report dated 28.04.2012 of Naib Tehsildar
Kurebhaar, submitted to the Tehsildar
Sadar, Sultanpur on the request made by
the opposite party no.3, wherein he had
taken statements of Gram Pradhan of
village Rethua as well as other residents of
the same village who said that Atiq Ahmad
had married twice, the second wife was
from Sultanpur and often came to the
village. The Area Lekhpal had submitted
on the basis of statements made by
residents of village Rethua that "it seems
that Hadisulnisha widow of late Kamaal
Ahmad
resident
of
village
Chamurkha,district
Sultanpur
had
remarried."

The
Additional
Commissioner
observed in the order impugned that from
the report of the Area Lekhpal as submitted
6 All. Smt. Hadisul Nisha Vs. Addl. Commissioner (J) & Ors.
159
through the Tehsildar, Sadar Sultanpur, it
was
apparent
that
Hadisulnisha
had
remarried and on remarriage of a widow
she ceases to have any right or claim over
the property of her late husband, therefore
there was no illegality in the order passed
by the Appellate court and the Revision
was rejected.

25. It is evident that the Revisional
Court despite availability of evidence to the
contrary also on record, chose to believe
the report of the Area Lekhpal who had
taken statements of residents of village
Rethua in the absence of and without notice
to the revisionist. It is not clear as to why
the Tehsildar and Naib Sadar, Sultanpur
chose not to summon a report from village
Seur Chamurkha in their District Sultanpur,
which was under their jurisdiction, and
chose to believe the report of the Area
Lekhpal
submitted
on
the
basis
of
statements given by residents of a village
situated in a different district i.e. district
Faizabad.

In doing so the Revisional Court also
exceeded its jurisdiction as it gave a finding
on fact which affected the title of the
petitioner without giving any finding with
regard to possession, which alone was
necessary to decide a mutation case. The
order passed by the Revisional Court is
clearly hit by one of the five exceptions
carved out by this Court in its various
decisions to show interference in orders
passed
in
mutation
proceedings.
The
mutation in this case had been directed not on
the basis of possession or simply on the basis
of some title deed, but after entering into
debate of entitlement to succeeding the
property, touching into merits of the rival
claims. The entry itself conferred a title on
the opposite party No.3 by virtue of the
provisions of the U.P.Z.A.& L.R. Act, section
171 and 172. Substantial injustice has been
done to the petitioner by the order so passed
by the Appellate and Revisional Court.

26. There was no examination of any
witness
to
the
alleged
wedding
nor
examination of the said alleged husband of
the petitioner Atiq Ahmad. The Appellate
Court and the Revisional Court relied upon
secondary evidence, the statements of village
Pradhans and the report of the Area Lekhpal
of village Rethua, saying that he had taken
statements of several residents of village
Rethua, who indicated that Atiq Ahmad had
married twice. One of his wives belonged to
Hasanpur village and often came to village
Rethua to live with him. All this was done
behind the back of the petitioner.

27. In Rudra Mani Shukla versus
Subash Kumar (supra), the proceedings in
mutation application were decided on merits
without any enquiry into the possession. The
enquiry was conducted only with regard to
proving of the Gift deed by which the
respondent therein had claimed mutation in
his favour. Mutation being decided without
following the procedure prescribed, the writ
petition was entertained. It was observed that
under Rule A375 of the Revenue Courts
Manual, a proclamation is made on the
basis of mutation application in favour of a
person who has obtained possession on his
having shown to the court evidence that he
was in possession, in support of his
objection. This Court had observed that
under Section 34 of the U.P. Land Revenue
Act every person obtaining possession of any
land by succession or transfer, other than a
succession or transfer which had already been
recorded under section 33A, shall report such
succession or transfer to the Tehsildar of the
Tehsil in which the land is situated. Under
section 35, on receiving a report of transfer or
succession or upon facts otherwise coming to
160 INDIAN LAW REPORTS ALLAHABAD SERIES
his knowledge, the Tehsildar should make
such enquiry as is necessary, and if he is
satisfied that such succession or transfer
appears to have taken place, he shall direct
the Annual Registers to be amended
accordingly. Section 40 clearly provides that
all disputes regarding entries in the Annual
Register shall be decided on the basis of
possession.

28. This Court observed in Rudra Mani
Shukla (supra) that it was incumbent upon the
Tehsildar to make necessary enquiry about
the existing entries in the relevant papers and
also to make an enquiry as to who was in
possession,
and
then
make
an order
accordingly. In Amarnath Arora versus
Board of Revenue U.P. Lucknow, 2019 LCD
775; a Coordinate Bench of this court placing
reliance upon Rudra Mani Shukla (supra)
observed in paragraph 27 and 31 Thus:-

"27. what persuades this Court to
entertain this writ petition, though the same
has been preferred against orders passed in a
mutation case, is the fact that in terms of the
provisions contained in sections 34 and 35 of
the U.P. Revenue Code 2006, the finding of
''obtaining possession'' is necessarily to be
returned by the Court concerned, however,
ignoring the said provision since the
impugned orders have been passed, without
recording a finding in respect of ''obtaining
possession', I am inclined to entertain this
writ petition in the peculiar facts and
circumstances of the case and accordingly
reject the objection raised by the learned
Senior Advocate appearing on behalf of the
Respondent no.4 regarding maintainability of
the writ petition.

"31. Mutation proceedings in respect of
agricultural
land
which
are
presently
governed by the provisions of sections 34 and
35 of the UP Revenue Code 2006 were
earlier governed by sections 34 and 35 of the
U.P. Land Revenue Act. The provisions of
section 34 of the U.P. Revenue Code 2006
and Section 35 of the UP Land Revenue Act
are in Pari materia. In both these provisions,
the emphasis, in my considered opinion, is on
obtaining possession by transfer..."

29. In the orders impugned, there is no
finding recorded either by the Appellate
Court or by the Revisional Court as to who
was in actual possession of the property in
question and therefore liable to pay revenue
to the Government. The orders impugned
have placed reliance on the issue of whether
Hadishul Nisha had remarried or not.