# Smt. Kalawati v. The Board of Revenue & Ors

- **Citation:** (2022) 5 ILRA 944
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-05
- **Case number:** Writ B No. 295 of 2022
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kalawati-v-the-board-of-revenue-ors-48612
- **Pages:** 13

## Headnote

(A) Land Law - Uttar Pradesh Revenue
Code, 2006 - Section 35 - Mutuation in
cases of succession , Section 39 - Certain
orders of the Revenue Officers not to
debar a suit , The Constitution of India -
Article 226 - orders of mutation are
passed on the basis of possession - no
substantive rights of the parties are
decided - ordinarily orders passed in
mutation proceedings are not to be
interfered
with
in
exercise
of
the
extraordinary jurisdiction of this Court
under Article 226 of the Constitution of
India - unless the same are found to be
wholly without jurisdiction or have the
effect of rendering findings which are
contrary to title already decided by a
competent court. (Para - 11,43 )

(B) Land law - Uttar Pradesh Revenue
Code, 2006 - Section 39 - unequivocal
terms - order passed under Section 35
would
not
debar
any
person
from
establishing his rights to the land by
means of a suit under Section 144 - an
entry in revenue records is only for fiscal
purpose - does not confer title on a
person whose name appears in record-ofrights - title to the property can only be
decided by a competent civil court. Para
- 18,44)

Orders of mutation - passed in favour of the
predecessor-in-interest of private respondents -
basis of claim - petitioner asserting herself to be
the second wife of the recorded tenure holder -
to support her claim reliance was sought to be
placed on various pieces of documentary
evidence - proceedings being summary in
nature - do not decide the rights of the parties -
challenge
under
writ
petition
-
whether
entertainable.(Para - 3,41)

HELD:-Court not inclined to exercise its
extraordinary discretionary jurisdiction under
Article 226 of the Constitution of India against
the orders passed in mutation proceedings.
(Para -45 )

Petition dismissed. (E-7)

List of Cases cited:-
5 All. Smt. Kalawati Vs. The Board of Revenue & Ors.
945

## Text

_Characters 0–39,979 of 41,021. This is a partial read: ask again with offset=39979 for what follows._

944 INDIAN LAW REPORTS ALLAHABAD SERIES

81. Thus, considering the facts and
circumstances of the case, this Court finds
that as the appellants are working in real
estate sector and their project having been
registered on 15.8.2017 after enforcement
of Act, 2016, comes under the purview of
''promoter', as defined under Section 2(zk)
of Act, 2016, and necessary compliance of
pre-deposit, as enshrined under Section
43(5) of Act, 2016, has to be made before
the Tribunal before entertainment of their
appeal. Furthermore, the law is settled as
far as mandatory compliance of Section
43(5) of Act, 2016 is concerned in view of
the judgment of Apex Court in the case of
M/s Newtech Promoters and Developers
Pvt. Ltd. (supra).

82. I, therefore, find that no case for
interference is made out in the orders
impugned. The appeals fail and are hereby
dismissed. Interim orders stand discharged.

83. However, no order as to costs.
----------
(2022)05ILR A944
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2022

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ B No. 295 of 2022

Smt. Kalawati ...Petitioner
Versus
The Board of Revenue & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Ramedran Asthana

Counsel for the Respondents:
C.S.C., Sri Rishikesh Tripathi
(A) Land Law - Uttar Pradesh Revenue
Code, 2006 - Section 35 - Mutuation in
cases of succession , Section 39 - Certain
orders of the Revenue Officers not to
debar a suit , The Constitution of India -
Article 226 - orders of mutation are
passed on the basis of possession - no
substantive rights of the parties are
decided - ordinarily orders passed in
mutation proceedings are not to be
interfered
with
in
exercise
of
the
extraordinary jurisdiction of this Court
under Article 226 of the Constitution of
India - unless the same are found to be
wholly without jurisdiction or have the
effect of rendering findings which are
contrary to title already decided by a
competent court. (Para - 11,43 )

(B) Land law - Uttar Pradesh Revenue
Code, 2006 - Section 39 - unequivocal
terms - order passed under Section 35
would
not
debar
any
person
from
establishing his rights to the land by
means of a suit under Section 144 - an
entry in revenue records is only for fiscal
purpose - does not confer title on a
person whose name appears in record-ofrights - title to the property can only be
decided by a competent civil court. Para
- 18,44)

Orders of mutation - passed in favour of the
predecessor-in-interest of private respondents -
basis of claim - petitioner asserting herself to be
the second wife of the recorded tenure holder -
to support her claim reliance was sought to be
placed on various pieces of documentary
evidence - proceedings being summary in
nature - do not decide the rights of the parties -
challenge
under
writ
petition
-
whether
entertainable.(Para - 3,41)

HELD:-Court not inclined to exercise its
extraordinary discretionary jurisdiction under
Article 226 of the Constitution of India against
the orders passed in mutation proceedings.
(Para -45 )

Petition dismissed. (E-7)

List of Cases cited:-
5 All. Smt. Kalawati Vs. The Board of Revenue & Ors.
945
1. Lal Bachan Vs B.O.R., U.P., Luck. & ors.,
2002 (93) RD 6

2. Smt. Hadisul Nisha Vs Add. Commissioner
(Judicial), Faizabad & ors., 2021 (152) RD4 26

3. Mahesh Kr. Juneja & anr. Vs Add.
Commissioner Judicial, Moradabad Division &
ors., 2020 (146) RD 545

4. Awadhesh Singh Vs Add. Commissioner &
ors., 2017 (9) ADJ 378

5. Smt. Bhimabai Mahadeo Kambekar (D) Th.
LR Vs Arthur Imp. & Exp. Co. & ors., (2019) 3
SCC 191

6. Jaipal Vs B.O.R., U.P., Alld. & ors., AIR 1957
ALL 205

7. Bindeshwari Vs B.O.R. & ors., 2002 (1) AWC
498

8. Vinod Kumar Rajbhar Vs St. of U.P. & ors.,
2012 (1) ADJ 792

9. Buddh Pal Singh Vs St. of U.P. & ors., 2012
(5) ADJ 266

10. Bhimabai Mahadeo Kambekar Vs Arthur
Imp. & Exp. Co. & ors., (2019) 3 SCC 137

11. Balwant Singh Vs Daulat Singh, (1997) 7
SCC 137

12. Narasamma Vs St. of Karn., (2009) 5 SCC
591

13. Faqruddin Vs Tajuddin, (2008) 8 SCC 12

14. Narain Prasad Aggarwal Vs St. of M.P.
,(2007) 11 SCC 736

15. U.O.I. & ors. Vs Vasavi Cooperative Housing
Society Ltd. & Ors. ,(2014) 2 SCC 269

16. Corpn. of the City of Bangalore Vs M.
Papaiah, (1989) 3 SCC 612

17. Guru Amarjit Singh Vs Rattan Chand, (1993)
4 SCC 349

18. H.P. Vs Keshav Ram, (1996) 11 SCC 257
19. Sawarni (Smt.) Vs Inder Kaur (Smt.) &
ors.,(1996) 6 SCC 223

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

21. Harish Chandra Vs U.O.I. & ors., 2019 (5)
ADJ 212 (DB)

22. Mahesh Kr. Juneja & anr. Vs Add.
Commissioner Judicial Moradabad Division &
ors.,2020 (146) RD 545

23. Jitendra Singh Vs St. of M.P. & ors., 2021
SCC Online SC 802

24. Suraj Bhan Vs Financial Commissioner,
(2007) 6 SCC 186

25. Suman Verma Vs U.O.I. ,(2004) 12 SCC 58

26. Rajinder Singh Vs St. of J & K, (2008) 9 SCC
368

27. Municipal Corp., Aurangabad Vs St. of
Maha., (2015) 16 SCC 689

28. T Ravi Vs B. Chinna Narasimha, (2017) 7
SCC 342

29. Bhimabai Mahadeo Kambekar Vs Arthur
Imp. & Exp. Co., (2019) 3 SCC 191

30. Prahlad Pradhar Vs Sonu Kumhar, (2019) 10
SCC 259

31. Ajit Kaur Vs Darshan Singh, (2019) 13 SCC 70

32. Radhey Shyam & ors. Vs St. of U.P. & ors.,
2013 (7) ADJ 71

33. Rudramani Shukla Vs Subhash Kr. & ors.,
2017 (3) ADJ 510

34. Vijay Shankar Vs Add. Commissioner
(Administration) Luck. Divison & ors., 2015 (3)
ADJ 186 (LB)

35. Whirlpool Corp. Vs Rregistrar of Trade
Marks, (1998) 8 SCC 1

36. Harbanslal Sahnia Vs I.O.C. Ltd., (2003) 2
SCC 107
946 INDIAN LAW REPORTS ALLAHABAD SERIES
37. Radha Krishan Industries Vs St. of H.P. &
ors., (2021) 6 SCC 771

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Ramendra Asthana,
learned counsel for the petitioner, Sri Ajeet
Kumar Singh, learned Additional Advocate
General assisted by Sri J.P.N. Raj, learned
Additional Chief Standing Counsel for the
State
respondents
and
Sri
Rishikesh
Tripathi, learned counsel for the respondent
nos. 4 to 7.

2. The present petition has been filed
seeking to raise a challenge to the order dated
05.10.2021 passed by the respondent no.1Board of Revenue, U.P. at Lucknow
dismissing
the
Revision
No.
REV/1789/2019/Banda (Computerized Case
No. R20190711001789, Smt. Kalawati vs.
Pramod Singh), the earlier order dated
16.08.2019 passed by the respondent no.2Up-Ziladhikari,
Banda
in Appeal
No.
T2018017110104138 (Smt. Kalawati vs.
Smt. Shiv Devi) and also the order dated
26.06.2018 passed by the respondent no.3-
Naib
Tehsildar
Banda,
in
Case
No.
00411/2018
(Computerized
Case
No.
T201807110100411, Report Lekhpal vs.
Gyan Singh) under Section 35 of Uttar
Pradesh Revenue Code, 20061 rejecting the
objection dated 13.02.2017 filed by the
petitioner and allowing mutation application
dated 02.01.2017 filed by Smt. Shiv Devi,
predecessor-in-interest of the respondents
nos. 4 to 7 in the present petition.

3. An objection has been taken by the
counsel appearing for the respondents by
pointing out that the orders which are
sought to be challenged have been passed
in mutation proceedings and the aforesaid
proceedings being summary in nature
which do not decide the rights of the
parties, the present writ petition seeking to
challenge
the
same
would
not
be
entertainable.

4. Counsel for the petitioner though
not
disputing
the
aforesaid
legal
proposition that as per the consistent view
taken by this Court, a writ petition arising
out of mutation proceedings is not
entertainable, seeks to contend that there
are certain exceptions to the general rule
and it cannot be held that in all situations a
writ petition seeking to challenge orders in
mutation
proceedings
would
not
be
entertainable.

5. To support his contention, reliance
is sought to be placed on decisions of this
Court in Lal Bachan vs Board of
Revenue, U.P., Lucknow and others2 and
Smt.
Hadisul
Nisha vs. Additional
Commissioner (Judicial), Faizabad and
others3.

6. Learned Additional Advocate
General appearing for the State respondents
and also the counsel who has put in
appearance on behalf of the private
respondent nos. 4 to 7 have contended that
mutation proceedings being of a summary
nature do not decide any question of title
and the orders passed in such proceedings
do not come in the way of a person getting
his rights adjudicated in a regular suit and it
is for the said reason that the consistent
view taken by the courts is that such
petitions are not to be entertained in
exercise of powers under Article 226 of the
Constitution of India. Reliance has been
placed on the decisions of this Court in
Mahesh Kumar Juneja and another vs.
Additional
Commissioner
Judicial,
Moradabad
Division
and
Others4,
Awadhesh
Singh
vs.
Additional
5 All. Smt. Kalawati Vs. The Board of Revenue & Ors.
947
Commissioner and others5 and also a
decision of the Supreme Court in Smt.
Bhimabai Mahadeo Kambekar (D) Th.
LR vs. Arthur Import and Export
Company & Ors.6.

7. The question of the maintainability
of a writ petition against orders passed in
mutation proceedings has come up before
this Court earlier and it has consistently
been held that normally the High Court in
exercise of its discretionary jurisdiction
does not entertain writ petitions against
such orders which arise out of summary
proceedings.

8. In the case of Jaipal Vs. Board of
Revenue, U.P., Allahabad & Ors.7 notice
was taken of the consistent practice of this
Court not to interfere with the orders made
by the Board of Revenue in cases in which
the only question at issue was whether the
name of the petitioner should be entered in
the record of rights. The observations made
in the judgment in this regard are as
follows:-

"3. ...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..."

9. The question with regard to the
maintainability of a writ petition arising out
of
mutation
proceedings
fell
for
consideration in the case of Sri Lal
Bachan Vs. Board of Revenue, U.P.,
Lucknow & Ors.2 and it was held that the
High Court does not entertain a writ
petition
under
Article
226
of
the
Constitution of India for the reason that
mutation proceedings are only summarily
drawn on the basis of possession and the
parties have a right to get the title
adjudicated
by
regular
suit.
The
observations made in the judgment are
extracted below:-

"11. This Court has consistently
taken the view as is apparent from the
decisions of this Court referred above that
writ petition challenging the orders passed in
mutation
proceedings
are
not
to
be
entertained. To my mind, apart from there
being remedy of getting the title adjudicated
in regular suit, there is one more reason for
not entertaining such writ petition. The orders
passed under Section 34 of the Act are only
based on possession which do not determine
the title of the parties. Even if this Court
entertains the writ petition and decides the
writ petition on merits, the orders passed in
mutation proceedings will remain orders in
summary proceedings and the orders passed
in the proceedings will not finally determine
the title of the parties."

10. Reiterating a similar view in the
case of Bindeshwari Vs. Board of
Revenue & Ors.8, it was stated that
mutation proceedings do not adjudicate the
rights of parties and orders passed in the
said proceedings are always subject to
adjudication by the competent court and
therefore a writ petition against an order in
mutation
proceedings
would
not
be
entertainable. It was observed as follows:-

"11. ...The present writ petition
arising out of the summary proceeding of
948 INDIAN LAW REPORTS ALLAHABAD SERIES
mutation under Section 34 of U.P. Land
Revenue Act, cannot be entertained under
Article 226 of the Constitution of India.
The mutation proceedings do not adjudicate
the rights of the parties and orders passed
in the mutation are always subject to
adjudication by the competent court."

11. The settled legal position that
orders of mutation are passed on the basis
of possession and since no substantive
rights of the parties are decided, ordinarily
a writ petition would not be entertainable
against such orders unless the same are
found to be wholly without jurisdiction or
have the effect of rendering findings which
are contrary to title already decided by a
competent court, was reiterated in the case
of Vinod Kumar Rajbhar Vs. State of
U.P. and others9.

12. Taking note of the nature and
scope of mutation proceedings which are
summary in nature and also the fact that
orders in such proceedings are passed on
the basis of possession of the parties and no
substantive rights are decided, this Court in
Buddh Pal Singh Vs. State of U.P. &
Ors.10,
restated
the
principle
that
ordinarily a writ petition in respect of
orders passed in mutation proceedings is
not maintainable. It was observed as
follows:-

"7. It is equally settled that the
orders for mutation are passed on the basis
of the possession of the parties and since no
substantive rights of the parties are decided
in mutation proceedings, ordinarily a writ
petition is not maintainable in respect of
orders passed in mutation proceedings
unless
found
to
be
totally
without
jurisdiction or contrary to the title already
decided by the competent court. The parties
are always free to get their rights in respect
of the disputed land adjudicated by
competent court."

13. The proposition that mutation
entries in revenue records do not create or
extinguish title over land nor such entries
have any presumptive value on title has
been restated in a recent decision in the
case of Bhimabai Mahadeo Kambekar
Vs. Arthur Import and Export Company
& Ors.6 placing reliance upon earlier
decisions in Balwant Singh Vs. Daulat
Singh11 and Narasamma Vs. State of
Karnataka12. The observations made in
the judgment are as follows:-

"6. This Court has consistently
held that mutation of a land in the revenue
records does not create or extinguish the
title over such land nor has it any
presumptive value on the title. It only
enables the person in whose favour
mutation is ordered to pay the land revenue
in question. (See Sawarni v. Inder Kaur,
Balwant Singh v. Daulat Singh and
Narasamma v. State of Karnataka)."

14. Reference may also be had to the
judgment in Faqruddin Vs. Tajuddin13,
wherein it was held that the revenue
authorities cannot decide questions of title
and that mutation takes place only for
certain purposes. The observations made in
this regard are as follows:-

''45. Revenue authorities of the
State are concerned with revenue. Mutation
takes place only for certain purposes. The
statutory rules must be held to be operating
in a limited sense... It is well-settled that an
entry in the revenue records is not a
document of title. Revenue authorities
cannot decide a question of title.''

15. A similar observation was made in
Narain Prasad Aggarwal Vs. State of
5 All. Smt. Kalawati Vs. The Board of Revenue & Ors.
949
Madhya Pradesh14, wherein it was held
as follows:-

''19. Record-of-right is not a
document of title. Entries made therein in
terms of Section 35 of the Evidence Act
although are admissible as a relevant piece
of evidence and although the same may
also carry a presumption of correctness, but
it is beyond any doubt or dispute that such
a presumption is rebuttable...''

16. In Union of India and others Vs.
Vasavi Cooperative Housing Society Limited
& Ors.15, the principle that entries in revenue
records do not confer any title was reiterated and
referring to the previous decisions in Corpn. of
the City of Bangalore v. M. Papaiah,16 Guru
Amarjit Singh v. Rattan Chand17 and H.P. v.
Keshav Ram18, it was stated thus :-

"21.
This
Court
in
several
judgments has held that the revenue records
do not confer title. In Corpn. of the City of
Bangalore v. M. Papaiah this Court held
that: (SCC p. 615, para 5)

''5. ...It is firmly established that
the revenue records are not documents of
title, and the question of interpretation of a
document not being a document of title is
not a question of law.''

In Guru Amarjit Singh v. Rattan
Chand this Court has held that: (SCC p.
352, para 2)

''2. ...that entries in the Jamabandi
are not proof of title.''

In State of H.P. v. Keshav Ram
this Court held that: (SCC p. 259, para 5)

"'5. ...an entry in the revenue
papers by no stretch of imagination can
form the basis for declaration of title in
favour of the plaintiffs.''

17. A similar view was taken in the
case of Sawarni (Smt.) Vs. Inder Kaur
(Smt.) and others19 and it was observed
that the mutation of name in the revenue
records does not have the effect of creating
or extinguishing the title nor has any
presumptive value on title and it only
enables the person concerned to pay land
revenue. It was stated thus :-

"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..."

18. The principle that an entry in
revenue records is only for fiscal purpose
and does not confer title on a person whose
name appears in record-of-rights and title
to the property can only be decided by a
competent civil court was reiterated in the
decision of Suraj Bhan and others Vs.
Financial Commissioner and others20
and it was stated as follows :-

"9...It is well settled that an entry
in revenue records does not confer title on a
person whose name appears in record-ofrights. 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 a competent civil court..."

19. The legal position that entries in
revenue records do not confer any title has
been considered and discussed in a recent
decisions of this Court in Harish Chandra
Vs. Union of India & Ors.21 and Mahesh
950 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar
Juneja
and
another
Vs.
Additional
Commissioner
Judicial
Moradabad Division and others4 and it
was restated that ordinarily orders passed
by mutation courts are not to be interfered
in writ jurisdiction as they are summary
proceedings, and as such subject to a
regular suit.

20. The settled legal position that an
entry in revenue records does not confer
title on a person whose name appears in
record-of-rights and that such entries are
only for "fiscal purpose" and no ownership
is conferred on the basis thereof and further
that the question of title of a property can
only be decided by a competent civil court
has again been restated in a recent decision
of the Supreme Court in Jitendra Singh
Vs. State of Madhya Pradesh and
others22 wherein after referring to the
previous authorities on the point in Suraj
Bhan Vs. Financial Commissioner20,
Suman Verma Vs. Union of India21,
Faqruddin Vs. Tajuddin14, Rajinder
Singh Vs. State of J & K23, Municipal
Corporation, Aurangabad Vs. State of
Maharashtra24, T Ravi Vs. B. Chinna
Narasimha25,
Bhimabai
Mahadeo
Kambekar Vs. Arthur Import & Export
Co.26
Prahlad
Pradhar
Vs.
Sonu
Kumhar27 and Ajit Kaur Vs. Darshan
Singh28, it was observed thus :-

"8. In the case of Suraj Bhan v.
Financial Commissioner, (2007) 6 SCC
186, it is observed and held by this Court
that an entry in revenue records does not
confer title on a person whose name
appears in record-of-rights. 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. It is further
observed that so far as the title of the
property is concerned, it can only be
decided by a competent civil court. Similar
view has been expressed in the cases of
Suman Verma v. Union of India, (2004) 12
SCC 58; Faqruddin v. Tajuddin, (2008) 8
SCC 12; Rajinder Singh v. State of J&K,
(2008) 9 SCC 368; Municipal Corporation,
Aurangabad v. State of Maharashtra,
(2015) 16 SCC 689; T. Ravi v. B. Chinna
Narasimha, (2017) 7 SCC 342; Bhimabai
Mahadeo Kambekar v. Arthur Import &
Export Co., (2019) 3 SCC 191; Prahlad
Pradhan v. Sonu Kumhar, (2019) 10 SCC
259; and Ajit Kaur v. Darshan Singh,
(2019) 13 SCC 70."

21. The mutation proceedings being of
a summary nature drawn on the basis of
possession do not decide any question of title
and the orders passed in such proceedings do
not come in the way of a person in getting his
rights adjudicated in a regular suit. It is for
this reason that it has consistently been held
that such petitions are not to be entertained in
exercise of powers under Article 226 of the
Constitution of India. The consistent legal
position with regard to the nature of mutation
proceedings, as has been held in the previous
decisions, may be stated as follows :-

(i) mutation proceedings are
summary in nature wherein title of the
parties over the land involved is not
decided;

(ii) mutation order or revenue
entries are only for the fiscal purposes to
enable the State to collect revenue from the
person recorded;

(iii) they neither extinguish nor
create title;

(iv) mutation in revenue records
does not have any presumptive value on the
5 All. Smt. Kalawati Vs. The Board of Revenue & Ors.
951
title and no ownership is conferred on the
basis of such entries;

(v) the order of mutation does not
in any way effect the title of the parties
over the land in dispute; and

(vi) such orders or entries are not
documents of title and are subject to
decision of the competent court.

22. A question would however arise
as to whether any exception can be carved
out to the aforesaid settled position with
regard to non-interference in matters
arising out of mutation proceedings in
exercise of powers under writ jurisdiction,
and if so what would the facts and
circumstances under which a writ petition
may be entertained in such matters.

23. The circumstances which may
persuade a Court for exercising writ
jurisdiction to entertain a petition arising
out
of
mutation
proceedings
were
considered in a decision of this Court in
Radhey Shyam and others Vs. State of
U.P. and others29, and it was observed as
follows :-

"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, therefore, the
orders passed therein being summary in
nature,
writ
petition
would
not
be
maintainable, but here in this case 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 do not decide
the right and title of the parties. The
judgements
rendered
therein
are
not
binding upon the Courts deciding the title
of the matter 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 there
being 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 right which would consume
a very long time and in the meantime even
the nature of the land may be changed.
Further, the possession would be enjoyed
by the persons in whose favour an order of
mutation has been passed or the transferee
without there being any valid title and the
person having valid title will become a
looser (sic loser) for the years together and
in some cases if the land has gone in the
hands of mafia or musclemen, the rightful
owner may not be able to get the fruit 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 petitions against the orders passed in
mutation cases."

24. Similar observations were made in
the case of Rudramani Shukla Vs.
Subhash Kumar and others30, and it was
stated thus :-

"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 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
952 INDIAN LAW REPORTS ALLAHABAD SERIES
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 realisation 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 emphasised. 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."

25. An exception to the general rule
against interference with orders made in
mutation proceedings, in exercise of writ
jurisdiction, finds reference in the Division
Bench judgement of this Court in the case
of Jaipal Vs. Board of Revenue U.P.
Allahabad and others7, wherein it was
stated as follows :-

"3...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 and Land Reforms
Act..."

26. In the case of Lal Bachan Vs.
Board of Revenue, U.P. Lucknow and
others2, while taking the view that
mutation proceedings are subject to
adjudication of title by competent court,
it was held that writ petition arising out
of such proceedings cannot be held to be
non-maintainable but such writ petition is
not entertained due to reason that parties
have right to get the title adjudicated by
regular suit and the orders passed in
mutation proceedings are summary in
nature. In a situation where a challenge is
raised to an order passed without
jurisdiction, it was held that the writ
petition
can
be
entertained
despite
availability
of
alternative
remedy.
Referring to the earlier decision in the
case of Jaipal, it was stated as follows :-

"18. In view of the above
discussions, it is clear that although the
writ petition arising out of the mutation
proceedings cannot be held to be nonmaintainable but this Court does not
entertain the writ petition under Article
226 of the Constitution due to reason that
parties have right to get the title
adjudicated by regular suit and the orders
passed in mutation proceedings are
summary in nature."

27. Certain exceptions where the
remedy of writ petition can be resorted to
so as to raise a challenge to orders passed
in mutation proceedings have been
referred to in Vijay Shankar Vs.
Additional
Commissioner
(Administration) Lucknow Divison and
others31, and Smt. Hadisul Nisha Vs.
Additional Commissioner (Judicial),
Faizabad3.

28. The reluctance of the Courts to
interfere with orders arising out of mutation
proceedings is primarily for the reason that
the question at issue is with regard to
correction of record of rights which is
primarily maintained for revenue purposes
and an entry therein has reference only to
possession and does not ordinarily confer
5 All. Smt. Kalawati Vs. The Board of Revenue & Ors.
953
upon the person in whose favour it is made
any title to the property in question.

29. The aforesaid inference that
revenue entries made on the basis of orders
of mutation do not ordinarily confer upon a
person in whose favour they are made, any
title to the property in question, stands
fortified
from
the
express
provision
contained under Section 39 of the Code
which states in clear terms that the orders
passed under the provisions relating to
mutation of revenue records would not act
as a bar against any person from
establishing his rights to the land by means
of a declaratory suit.

30. Section 39 of the Code, as
referred to above, is being extracted below
:-

"39. Certain orders of Revenue
Officers not to debar a suit :- No order
passed by a Revenue Inspector under
Section 33, or by a Tehsildar under subsection (1) of Section 35 or by a SubDivisional Officer under sub-section (3) of
Section 38 or by a Commissioner under
sub-section (2) of Section 35 or sub-section
(4) of Section 38 shall debar any person
from establishing his rights to the land by
means of a suit under Section 144."

31. The aforementioned section
clearly provides that no person shall be
debarred from establishing his rights to the
land by means of a declaratory suit under
Section 144, irrespective of the fact that an
order has been passed by; (i) a Revenue
Inspector under Section 33 (mutation in
case of succession), or (ii) a Tehsildar
under sub-section (1) of Section 35
(mutation in case of transfer or succession),
or (iii) a Sub-Divisional Officer under subsection (3) of Section 38 (correction of
error or omission), or (iv) a Commissioner
under sub-section (4) of Section 38
(correction of error or omission).

32. Section 39 which expressly
provides that the orders passed by revenue
officers in cases of a mutation and
correction of revenue entries would not
debar filing of a declaratory suit, is a
substantive provision, and corresponds to a
similar provision contained under Section
40-A of the U.P. Land Revenue, 1901 (now
repealed).

33. The language of the section
emphasizes that it applies to all orders
passed by the revenue officers in matters
relating to mutation and correction of errors
or omission of revenue entries and it
provides in clear terms that such order shall
not debar any person from establishing his
rights to the land by means of a declaratory
suit under Section 144.

34. The object of the section being to
enable a person to seek declaration of his
rights on questions of title irrespective of
the orders passed in mutation proceedings
with regard to correction of revenue entries,
the remedy of seeking a declaration on
questions of title by filing a declaration suit
remains
open. The
existence
of
an
efficacious statutory alternative remedy
would therefore also be a reason for not
entertaining a writ petition in exercise of
discretionary jurisdiction under Article 226.

35. The exceptions to the "rule of
alternate remedy" are well laid out in terms
of judicial precedents and would include
situations where the statutory authority has
not acted in accordance with the provisions
of law or acted in defiance of the
fundamental
principles
of
judicial
procedure; or has resorted to invoke
954 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions, which are repealed; or where an
order has been passed in violation of the
principles of natural justice.

36. The exceptions to the 'rule of
alternate remedy' were considered in the
case
of
Whirlpool
Corporation
vs.
Rregistrar of Trade Marks32, wherein it
was observed as follows :-

"14.
The
power
to
issue
prerogative writs under Article 226 of the
Constitution is plenary in nature and is not
limited by any other provision of the
Constitution. This power can be exercised
by the High Court not only for issuing writs
in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari for
the enforcement of any of the Fundamental
Rights contained in Part III of the
Constitution but also for "any other
purpose".

15. Under Article 226 of the
Constitution, the High Court, having regard
to the facts of the case, has a discretion to
entertain or not to entertain a writ petition.
But the High Court has imposed upon itself
certain restrictions one of which is that if
an effective and efficacious remedy is
available, the High Court would not
normally exercise its jurisdiction. But the
alternative remedy has been consistently
held by this Court not to operate as a bar in
at least three contingencies, namely, where
the writ petition has been filed for the
enforcement of any of the Fundamental
Rights or where there has been a violation
of the principle of natural justice or where
the order or proceedings are wholly without
jurisdiction or the vires of an Act is
challenged. There is a plethora of case-law
on this point but to cut down this circle of
forensic whirlpool, we would rely on some
old decisions of the evolutionary era of the
constitutional law as they still hold the
field."

(emphasis supplied)

37. Following the aforesaid decision,
in Harbanslal Sahnia Vs. Indian Oil
Corporation Ltd.33, it was stated thus :-

"7. So far as the view taken by
the High Court that the remedy by way of
recourse to arbitration clause was available
to the appellants and therefore the writ
petition filed by the appellants was liable to
be dismissed is concerned, suffice it to
observe that the rule of exclusion of writ
jurisdiction by availability of an alternative
remedy is a rule of discretion and not one
of compulsion. In an appropriate case, in
spite of availability of the alternative
remedy, the High Court may still exercise
its writ jurisdiction in at least three
contingencies : (i) where the writ petition
seeks
enforcement
of
any
of
the
fundamental rights; (ii) where there is
failure of principles of natural justice; or
(iii) where the orders or proceedings are
wholly without jurisdiction or the vires of
an Act is challenged. (See Whirlpool
Corpn.v. Registrar of Trade Marks, (1998)
8 SCC 1) The present case attracts
applicability of the first two contingencies.
Moreover,
as
noted,
the
petitioners'
dealership, which is their bread and butter,
came to be terminated for an irrelevant and
non-existent cause. In such circumstances,
we feel that the appellants should have
been allowed relief by the High Court itself
instead of driving them to the need of
initiating arbitration proceedings."

(emphasis supplied)

38. The 'rule of alternate remedy' in
the context of maintainability of a writ
5 All. Smt. Kalawati Vs. The Board of Revenue & Ors.
955
petition under Article 226 has been
examined in a recent decision in the case of
Radha Krishan Industries vs. State of
Himachal Pradesh and others34 and it
has been held that since the power under
Article 226 to issue writs can be exercised
not only for enforcement of fundamental
rights but for any other purpose as well, the
High Court has the discretion not to
entertain a writ petition and one of the
restrictions placed on the power of the High
Court is where an effective alternate
remedy is available to the aggrieved
person. The exceptions to the "rule of
alternate remedy" have been held to arise
where :

"(i) the writ petition has been
filed for the enforcement of a fundamental
right
protected
by
Part
III
of
the
Constitution;

(ii) there has been a violation of
the principles of natural justice;

(iii) the order or proceedings are
wholly without jurisdiction; or

(iv) the vires of a legislation is
challenged."

39. The rule of exhaustion of statutory
remedies has been held to be a rule of
policy, convenience and discretion and
existence of an alternate remedy would not
divest the High Court of its powers under
Article 226 which may be exercised in
appropriate cases.

40. Having regard to the foregoing
discussion the exceptions under which a
writ petition may be entertained against
orders passed in mutation proceedings
would arise where :

(i) the order or proceedings are
wholly without jurisdiction;

(ii) rights and title of the parties
have already been decided by a competent
court, and that has been varied in mutation
proceedings;

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

(iv) rights have been created
which are against provisions of any
statute, or the entry itself confers a title by
virtue of some statutory provision;

(v) the orders have been obtained
on the basis of fraud or misrepresentation
of facts, or by fabricating documents;

(vi) the order suffers from some
patent jurisdictional error i.e. in cases
where there is a lack of jurisdiction,
excess
of
jurisdiction
or
abuse
of
jurisdiction;

(vii) there has been a violation of
principles of natural justice.

41. In the case at hand, the grounds
which were sought to be canvassed to
raise a challenge to the orders of mutation
passed in favour of the predecessor-ininterest of the private respondents was
founded on the basis of the claim of the
petitioner asserting herself to be the
second wife of the recorded tenure holder
and to support her claim reliance was
sought to be placed on various pieces of
documentary evidence.
956 INDIAN LAW REPORTS ALLAHABAD SERIES

42. It is not disputed that the claim of
the petitioner that she was the second wife
of the deceased tenure holder which was
sought to be set up on the basis of
documentary
evidence
would
require
adjudication of rights of the parties
requiring detailed appreciation of facts and
the same would be clearly beyond the
scope
and
purview
of
summary
proceedings relating to claims of mutation.

43. Counsel for the petitioner has not
been able to point out any circumstance
which may persuade this Court to entertain
the writ petition in exception to the settled
legal position that ordinarily orders passed
in mutation proceedings are not to be
interfered
with
in
exercise
of
the
extraordinary jurisdiction of this Court
under Article 226 of the Constitution of
India.

44. At this stage, learned counsel for
the petitioner seeks to urge that the
findings
returned
in
the
mutation
proceedings
may
prejudice
the
petitioner's case in a suit pertaining to
claim of title. The aforesaid apprehension
is wholly without basis since findings
returned by mutation courts in summary
proceedings are for the limited purpose of
correction of revenue records and do not
have any presumptive value on a question
of
title
which
is
required
to
be
adjudicated by the court of competent
jurisdiction without being influenced by
any
finding
returned
in
mutation
proceedings. In this regard the provision
contained under Section 39 of the Code
has already been taken note of wherein it
is provided in unequivocal terms that
order passed under Section 35 would not
debar any person from establishing his
rights to the land by means of a suit under
Section 144.

45. Having regard to the aforesaid this
Court is not inclined to exercise its
extraordinary
discretionary
jurisdiction
under Article 226 of the Constitution of
India in the facts of the present case.

46. The petition stands dismissed
accordingly.
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(2022)05ILR A956
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.04.2022