# Smt. Madeena v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2024) 5 ILRA 2307
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-28
- **Case number:** Writ-B No. 1596 of 2024
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-madeena-v-state-of-u-p-ors-opp-parties-52066
- **Pages:** 16

## Headnote

A. U.P. Revenue Code, 2006 - Sections
35(2) & 207 - Mutation - Appeal When
Mutation Proceedings Are Transferred to
Another Tehsil - Territorial Jurisdiction -
Whether the territorial jurisdiction to
entertain or decide an appeal against an
order passed in a mutation proceeding
transferred outside the Tehsil will lie in
the transferred Tehsil or the Tehsil where
the subject matter of dispute/unit is
situated. Held - Under Section 35(2) of
the Code, a person aggrieved by an order
of the Tehsildar may prefer an appeal to
the Sub-Divisional Officer. The SubDivisional Officer of the Tehsil where the
holding (unit) is situated has jurisdiction
to correct the judgment of the Tehsildar.
2308 INDIAN LAW REPORTS ALLAHABAD SERIES
The word 'subordinate' has not been used
in Section 35 of the Code; therefore, the
Full Bench judgment in Shabbar Husain
and
Others
v.
Dy.
Director
of
Consolidation,
Muzaffarnagar
and
Another, 2019 (4) ADJ 88, does not apply
to an appeal filed under Section 35(2) of
the Code in mutation proceedings. (Para
20)

B. U.P. Revenue Code, 2006 - Section
206(3) - Objection to Jurisdiction of
Revenue Court: An objection regarding
the jurisdiction of a court will not be
entertained by any appellate, revisional,
or executing court unless the following
three conditions co-exist: (i) the objection
must have been raised before the court of
first instance, (ii) it must be raised at the
earliest opportunity, and (iii) the party
raising the objection must demonstrate
that the irregular exercise of jurisdiction
has resulted in a failure of justice. All three
conditions must coexist for the objection
to be entertained (Para 36).

C. U.P. Revenue Code, 2006 - Sections
35(2) & 207 - Mutation Proceedings -
Provision
under
which
Appeal
is
maintainable Sections 35(2) or 207 - both
provisions S. 35(2) as well as S. 207 allow
for appeals against orders passed by the
Tehsildar in mutation cases - S. 207
provides for a first appeal by any party
aggrieved by a final order in specified
proceedings. Any person aggrieved by
an order of the Tahsildar in mutation
cases of succession or transfer may
prefer an appeal to the Sub-Divisional
Officer u/s 35(2) of the U.P. Revenue
Code, 2006. In the present case, the
rejection of the mutation application by
the Tehsildar led respondent No. 5 to file
an appeal u/s 207 of the Code before the
Sub-Divisional
Officer.
Petitioner
contended that the appeal was not
maintainable as it was filed u/s 207 and
not
S.
35(2).
Held:

Petitioner's
contention
was
misconceived;
mere
reference to a section, whether Section
207 or Section 35(2), does not affect the
maintainability of the appeal, as both
provisions allow for appeals against
orders passed by the Tehsildar in
mutation cases. (Para 38)

D. U.P. Revenue Code, 2006 - Sections
34 - Mutation Proceedings - Appeal -
objection as to the territorial jurisdiction
- Property in dispute situated within the
jurisdiction
of
Tehsil
Mauranipur,
District Jhansi. Respondent No. 5 moved
mutation application u/s 34 in the court
of the Naib Tehsildar, Rewan, District
Jhansi. Case was transferred to the
court of the Tehsildar, Garautha, District
Jhansi. Tehsildar, Garautha, rejected the
mutation
application.
Aggrieved,
respondent No. 5 preferred an appeal
before
the
Sub-Divisional
Officer
(S.D.O.), Mauranipur. Petitioner filed
transfer application, and the appeal was
transferred to the court of the S.D.M.,
Jhansi. S.D.M., Jhansi, allowed the
appeal. Petitioner challenged the order
in revision before the Board of Revenue,
which was dismissed. Before writ court
it was contended that the appeal against the
Tehsildar Garautha's order could have been
entertained only by the S.D.O., Garautha,
and thus, the appeal before the S.D.M.,
Mauranipur & S.D.M., Jhansi was not
maintainable. Held: Once the appeal was
transferred on the application filed by the
petitioner
from
the
court
of
S.D.M.,
Mauranipur, District- Jhansi to the court of
S.D.M., Jhansi such an o

## Text

_Characters 0–39,626 of 53,581. This is a partial read: ask again with offset=39626 for what follows._

5 All. Smt. Madeena Vs. State of U.P. & Ors.
2307
omnibus allegations have been made
against the applicant no 3, 4 and 5,
however, what role has been played by the
aforesaid applicants is not stated in
prosecution case.

33. It is also alleged in first
information report that the applicants have
threatened for life if the car is not given in
dowry. The applicants are proceeded under
section 506 IPC in this respect. Even in this
respect allegations are general in nature and
during investigation no specific role has
been assigned to the applicant nos. 3, 4 and
5. The allegations against applicant nos. 3,
4 and 5 are not such that a prudent man can
arrive at the conclusion that there is
sufficient ground for proceeding against the
applicant nos. 3, 4 and 5. Learned AGA
could not show any material to substantiate
that specific allegations existed against the
applicant nos. 3, 4 and 5. The State has also
not brought on record any injury report in
respect of allegation of assault nor it is
shown that during investigation specific
allegations
have
been
found
by
investigating officer against the applicant
nos. 3, 4 and 5.

34. In view of the fact that allegations
in the present case are vague in nature and
lacks specification in respect of applicant
nos. 3, 4 and 5, the criminal proceedings
against applicant nos. 3, 4 and 5 are absurd
and improbable that no prudent mind can
arrive at conclusion for proceeding against
applicants in view of the vague allegations.

35. In view thereof, the present
criminal proceedings against applicant nos.
3, 4 and 5 are bad in law, therefore, entire
proceedings of Criminal Case No. 6213 of
2018 (State vs. Shabban Khan and others)
under Sections 498A, 323, 506 IPC and
Section 3/4 of D.P. Act, P.S. Bilsi, District
Budaun arising out of Case Crime No. 689
of 2017 as well as charge-sheet dated
20.05.2018, is hereby set aside and quashed
against applicant nos. 3, 4 and 5, namely,
Smt. Mehtab, Achchan Khan and Kumari
Nida, respectively.

36. The present application under
Section 482 Cr.P.C. is, accordingly, partly
allowed.
----------
(2024) 5 ILRA 2307
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.05.2024

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Writ-B No. 1596 of 2024

Smt. Madeena ...Petitioner
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioner:
Krishna Kant Dwivedi

Counsel for the Opp. Parties:
Abhishek Kumar Yadav, Bhola Nath Yadav,
C.S.C., Deepak Gaur

A. U.P. Revenue Code, 2006 - Sections
35(2) & 207 - Mutation - Appeal When
Mutation Proceedings Are Transferred to
Another Tehsil - Territorial Jurisdiction -
Whether the territorial jurisdiction to
entertain or decide an appeal against an
order passed in a mutation proceeding
transferred outside the Tehsil will lie in
the transferred Tehsil or the Tehsil where
the subject matter of dispute/unit is
situated. Held - Under Section 35(2) of
the Code, a person aggrieved by an order
of the Tehsildar may prefer an appeal to
the Sub-Divisional Officer. The SubDivisional Officer of the Tehsil where the
holding (unit) is situated has jurisdiction
to correct the judgment of the Tehsildar.
2308 INDIAN LAW REPORTS ALLAHABAD SERIES
The word 'subordinate' has not been used
in Section 35 of the Code; therefore, the
Full Bench judgment in Shabbar Husain
and
Others
v.
Dy.
Director
of
Consolidation,
Muzaffarnagar
and
Another, 2019 (4) ADJ 88, does not apply
to an appeal filed under Section 35(2) of
the Code in mutation proceedings. (Para
20)

B. U.P. Revenue Code, 2006 - Section
206(3) - Objection to Jurisdiction of
Revenue Court: An objection regarding
the jurisdiction of a court will not be
entertained by any appellate, revisional,
or executing court unless the following
three conditions co-exist: (i) the objection
must have been raised before the court of
first instance, (ii) it must be raised at the
earliest opportunity, and (iii) the party
raising the objection must demonstrate
that the irregular exercise of jurisdiction
has resulted in a failure of justice. All three
conditions must coexist for the objection
to be entertained (Para 36).

C. U.P. Revenue Code, 2006 - Sections
35(2) & 207 - Mutation Proceedings -
Provision
under
which
Appeal
is
maintainable Sections 35(2) or 207 - both
provisions S. 35(2) as well as S. 207 allow
for appeals against orders passed by the
Tehsildar in mutation cases - S. 207
provides for a first appeal by any party
aggrieved by a final order in specified
proceedings. Any person aggrieved by
an order of the Tahsildar in mutation
cases of succession or transfer may
prefer an appeal to the Sub-Divisional
Officer u/s 35(2) of the U.P. Revenue
Code, 2006. In the present case, the
rejection of the mutation application by
the Tehsildar led respondent No. 5 to file
an appeal u/s 207 of the Code before the
Sub-Divisional
Officer.
Petitioner
contended that the appeal was not
maintainable as it was filed u/s 207 and
not
S.
35(2).
Held:

Petitioner's
contention
was
misconceived;
mere
reference to a section, whether Section
207 or Section 35(2), does not affect the
maintainability of the appeal, as both
provisions allow for appeals against
orders passed by the Tehsildar in
mutation cases. (Para 38)

D. U.P. Revenue Code, 2006 - Sections
34 - Mutation Proceedings - Appeal -
objection as to the territorial jurisdiction
- Property in dispute situated within the
jurisdiction
of
Tehsil
Mauranipur,
District Jhansi. Respondent No. 5 moved
mutation application u/s 34 in the court
of the Naib Tehsildar, Rewan, District
Jhansi. Case was transferred to the
court of the Tehsildar, Garautha, District
Jhansi. Tehsildar, Garautha, rejected the
mutation
application.
Aggrieved,
respondent No. 5 preferred an appeal
before
the
Sub-Divisional
Officer
(S.D.O.), Mauranipur. Petitioner filed
transfer application, and the appeal was
transferred to the court of the S.D.M.,
Jhansi. S.D.M., Jhansi, allowed the
appeal. Petitioner challenged the order
in revision before the Board of Revenue,
which was dismissed. Before writ court
it was contended that the appeal against the
Tehsildar Garautha's order could have been
entertained only by the S.D.O., Garautha,
and thus, the appeal before the S.D.M.,
Mauranipur & S.D.M., Jhansi was not
maintainable. Held: Once the appeal was
transferred on the application filed by the
petitioner
from
the
court
of
S.D.M.,
Mauranipur, District- Jhansi to the court of
S.D.M., Jhansi such an objection cannot be
taken by the petitioner as to the territorial
jurisdiction of the S.D.M., Jhansi to entertain
and decide the appeal. Further objection as
to the territorial jurisdiction of S.D.M.,
Mauranipur was not taken by the petitioner
in his objections filed to the appeal and it
was only in the written arguments the said
objection was taken. Petitioner also failed to
demonstrate
any
failure
of
justice
occurred because of the entertainment of
the appeal by the S.D.M., Jhansi. Since the
property in dispute was situated in Tehsil
Mauranipur, even though the order in the
mutation proceedings was passed by the
Tehsildar, Garautha, part of the cause of
action was present for respondent No. 5 to
file
an
appeal
before
the
S.D.M.,
Mauranipur.
The
writ
petition
was
dismissed. (Para 40, 41)
5 All. Smt. Madeena Vs. State of U.P. & Ors.
2309
Dismissed. (E-5)

List of Cases cited:

1. Shabbar Husain & ors. Vs Dy. Director of
Consolidation Muzaffarnagar & anr. 2019 (4)
ADJ 88

2. Hira Lal Patni Vs Sri Kali Nath reported in AIR
1962 SC 199

3. Pathumma & ors. Vs Kuntalan Kutty Dead by
Lrs. & ors. Reported in AIR 1981 SC 1683

4. R.S.D.V. Finance Co. Pvt. Ltd. Vs Shree
Vallabh Glass Works Ltd. Reported in AIR 1993
SC 2094

5. Rakhi & ors. Vs 1st A.D.J., Firozabad & ors. in
AIR 2000 All 166

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. Heard Sri Krishna Kant
Dwivedi, learned counsel for the petitioner,
Sri Abhishek Kumar Yadav, learned
counsel appearing for the respondent no. 5,
learned Standing Counsel for the Staterespondents and perused the record.

2. This writ petition has been filed
for following reliefs:-

"i. issue a writ, order or direction
in the nature of Certiorari Quashing the
impugned order dated 21.12.23 passed by
the respondent no. 2 in Revision no.
3434/2023 (Ann. 1 to the writ petition) and
order dated 21.08.23 passed by the
respondent no. 3 in Case no. 1987/ 2023
(Ann. 7 to the writ petition).
ii. issue a writ, order or direction in
the appropriate nature directing and
commanding
the
Tehsildar,
Tehsil
Mauranipur,
District
Jhansi,
i.e.
respondent no. 4, to stay the further
proceeding going on by him in Case no.
6802/2023, Meharban Singh Vs. Smt.
Sandal."

3. Brief facts of the case as
mentioned in the writ petition are that the
land in dispute i.e. land no. 1362 area
0.3820, 1260 area 1.4320, 1363 area 0.1080
situated as Mauza Dewari Singhpur, Tehsil
Mauranipur, District Jhansi was recorded in
the name of one Noor Khan. After the death
of Noor Khan, the property came to his son,
namely, Natthu. Natthu was married to Smt.
Sandal. Petitioner is the daughter of Natthu
and Smt. Sandal. After the death of Natthu,
the recorded tenure holder, name of Smt.
Sandal was recorded in the revenue record
being widow of Natthu. The petitioner was
minor at the time of death of her father
namely, Natthu. The mother of the
petitioner Smt. Sandal contracted, second
marriage with Sakur Khan, son of Ilahi
Khan on 11.04.1975 after the death of her
husband, Natthu and because of the second
marriage, Smt. Sandal, the widow of Natthu
was left with no right, title or interest in the
land in question. Name of Smt. Sandal
continued in revenue records and taking
advantage of the same Smt. Sandal
executed a sale deed dated 31.08.2017 of
land number 1260, area 1.4320 in favour of
respondent no. 5. After coming to know
about the sale deed executed by Smt.
Sandal in favour of respondent no. 5, the
petitioner instituted Original Suit No. 114
of 2017 for cancellation of the sale dated
31.08.2017, executed by Smt. Sandal in
favour of respondent no. 5. The aforesaid
suit is pending and the trial court i.e. Civil
Judge
(Junior
Division)
Mauranipur, Jhansi by its order dated
23.08.2022 has directed the parties to
maintain status quo. After the execution of
sale deed on 31.08.2017 by Smt. Sandal in
favour of respondent no. 5, the respondent
no. 5 moved an application under section
2310 INDIAN LAW REPORTS ALLAHABAD SERIES
34 of the UP Revenue Code, 2006
(hereinafter referred to as 'Code') for
mutation of his name over the land in
dispute on the basis of the registered sale
deed dated 31.08.2017 in the court of Naib
Tehsildar, Rewan, District- Jhansi. The
aforesaid case was transferred by order
dated 26.04.2018 passed by Additional
Commissioner (Administration), Jhansi to
the court of the Tehsildar, Garautha,
District- Jhansi on an application moved by
the respondent no. 5. The Tehsildar,
Garautha, District-Jhansi by an order dated
04.03.2023 has rejected the mutation
application filed by the respondent no. 5.
Against the order dated 04.03.2023 passed
by Tehsildar, Garautha, the respondent no.
5 preferred an appeal under Section 207 of
the Code before the Sub- Divisional
Officer, Mauranipur, District-Jhansi. The
appeal filed by the respondent no. 5 was
allowed by the S.D.M., Jhansi by its order
dated 21.08.2023 and order passed by the
Tehsildar, Garautha dated 04.03.2023 was
set aside and the court below was directed
to consider the case afresh on merits after
providing an opportunity of hearing to all
parties. The petitioner filed a revision
before the Board of Revenue- respondent
no.2 against the order dated 21.08.2023
passed by S.D.M., Jhansi, which was
registered as Revision No. 3434 of 2023,
Smt. Madeena versus Meharban Singh and
others. By order dated 21.12.2023, the
respondent no. 2 dismissed the revision
filed by the petitioner. Hence, the present
petition.

4. Primary contention raised by the
counsel for the petitioner is that once the
order dated 04.03.2023 was passed by the
Tehsildar, Tehsil Garautha, District- Jhansi
rejecting the application for mutation filed
by the respondent no. 5, the appeal filed by
the respondent no. 5 before the S.D.M.,
Mauranipur, District- Jhansi was not
maintainable as it was only the S.D.M.,
Garautha had the jurisdiction to entertain
the appeal against an order passed by
Tehsildar, Garautha. It has also been
contended that the S.D.M., Jhansi had
erroneously allowed the appeal filed by the
respondent no. 5 against the order dated
04.03.2023 passed by Tehsildar, Garautha
ignoring the objection, which was taken by
the petitioner in his written submissions as
to the maintainability of appeal. In this
regard, learned counsel for the petitioner
has relied upon the judgment of this Court
in case of Shabbar Husain and others Vs.
Dy.
Director
of
Consolidation
Muzaffarnagar and another reported in
2019 (4) ADJ 88. It is further contended by
learned counsel for the petitioner that
against an order passed under Section 34 of
the Code, an appeal lies under Section
35(2) of the Code. In the present case, the
appeal has been filed by the respondent no.
5 under Section 207 of the Code and not
under Section 35(2) of the Code and
therefore, the appeal as filed by the
respondent no. 5 is not maintainable.

5. Per contra, learned counsel for
respondent no. 5 submitted that the
property in dispute is situated within the
jurisdiction of Tehsil- Mauranipur, District-
Jhansi and as the application filed by the
respondent no. 5 under Section 34 of the
Code was transferred by the order of
Additional Commissioner, Jhansi to the
court of Tehsildar, Garautha, the same was
decided by Tehsildar, Garautha. It has been
further submitted that since part of cause of
action arose at Tehsil, Mauranipur, the
appeal filed by the respondent no. 5 was
maintainable
before
the
S.D.M.,
Mauranipur, District- Jhansi. It has also
been submitted by the counsel for the
respondent no. 5 that objection as to the
5 All. Smt. Madeena Vs. State of U.P. & Ors.
2311
territorial
jurisdiction
of
S.D.M.,
Mauranipur was not taken by the petitioner
in his objections filed to the appeal filed by
the respondent no. 5. It was only in the
written arguments the said objection was
taken. It is also contended by learned
counsel for the respondent that petitioner
herself filed Transfer Application No. 384
of 2023 (Smt. Madeena Vs. Meharban
Singh and others) under Section 212(2) of
the Code. The aforesaid transfer application
filed by the petitioner was allowed by order
dated 18.05.2023 passed by Commissioner
Jhansi and appeal was transferred to the
court of S.D.M., Jhansi and it was only
thereafter, the appeal was decided by the
S.D.M., Jhansi by order dated 21.08.2023.
It has been pointed out by learned counsel
for the petitioner that this fact regarding
moving of transfer application as well as
order dated 18.05.2023 passed on the
transfer application moved by the petitioner
has not been mentioned in the writ petition.

6. Learned counsel for the
respondent has produced the photocopy of
the certified copy of the order dated
18.05.2023 passed on transfer application
filed by the petitioner in Case No. 384 of
2023 (Smt. Madeena Vs. Meharban Singh
and others) which is taken on record. It has
also been contended by learned counsel for
the respondent that once the appeal was
transferred on the application filed by the
petitioner from the court of S.D.M.,
Mauranipur, District- Jhansi to the court of
S.D.M., Jhansi such an objection cannot be
taken by the petitioner as to the territorial
jurisdiction of the S.D.M., Jhansi to
entertain and decide the appeal.

7. Before considering the rival
submissions raised by the counsel for the
parties, it would be appropriate to look into
the relevant provisions of the U.P. Revenue
Code, 2006. Section 35 of the Code
provides
for
mutation
in
cases
of
succession or transfer. Section 35 of the
Code is quoted as under:-

"35.
Mutation
in
cases
of
succession or transfer.---(1) On the receipt
of a report under Section 33 or Section 34,
or upon facts otherwise coming to his
knowledge, the Tahsildar shall issue a
proclamation and make such inquiry as
appears to be necessary and -
(a) if the case is not disputed, he
shall direct the record of rights (Khatuani)
to be amended accordingly; and [***]
[(c) if the case is disputed, he shall
decide the dispute and direct, if necessary,
the record of rights (khatauni) to be
amended accordingly.]
[(2) Any person aggrieved by an
order of the Tahsildar under sub-section (1)
may prefer an appeal to the Sub-Divisional
Officer within a period of thirty days from
the date of such order.]"

8. Section 207 of the Code
provides for first appeals and is quoted as
under:-

" 207. First appeal--(1) Any party
aggrieved by a final order or decree passed
in any suit, application or proceeding
specified in 1(column 2) of the Third
Schedule, may prefer a first appeal to the
Court or officer specified against it in
2(column 4), where such order or decree
was passed by a Court or officer specified
against it in 3(column 3) thereof.

(2) A first appeal shall also lie
against an order of the nature specified -
(a) in Section 47 of the Code of
Civil Procedure, 1908; or
(b) in Section 104 of the said Code;
or
2312 INDIAN LAW REPORTS ALLAHABAD SERIES
(c) in Order XLIII Rule 1 of the
First Schedule to the said Code.
(3) The period of limitation for
filing a first appeal under this section shall
be thirty days from the date of the order or
decree appealed against.

9. Section 212 of the Code
provides for transfer of cases and the same
is quoted as under:-

"212. Power to transfer cases.--(1)
Where it appears to the Board that it will be
expedient for the ends of justice to do so, it
may direct that any case be transferred
from one revenue officer to another revenue
officer of an equal or superior rank in same
district or any other district.

(2)
The
Commissioner,
the
Collector or the Sub-Divisional Officer
may make over any case or class of cases
arising under the provisions of this Code or
any other enactment for the time being in
force, for decision from his own file to any
revenue officer sub-ordinate to him and
competent to decide such case or class of
cases, or may withdraw any case or class of
cases from any such revenue officer and
may deal with such case or class of cases
himself or refer the same for disposal to any
other revenue officer competent to decide
such case or class of cases."

10. Section 214 of the Code
provides as 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. Rule 33 of the U.P. Revenue Code
Rules, 2016 is reproduced below:-

"33. Report regarding transfer
(Section 34.) (1) Every report by or on
behalf of a person obtaining possession of
any land by transfer referred to in section
34 shall, as soon as possible, be made in
R.C. Form-11.
(2) The provisions of sub-rules (3)
to (6) of Rule 29 shall mutatis mutandis
apply to every report submitted under this
rule.
(3) While submitting a report under
this rule, the applicant shall also file an
affidavit to the effect that the transfer under
reference
does
not
contravene
the
provisions of section 89 of the Code, but
where such declaration has been made in
the deed, the affidavit under this sub-rule
would not be required.
(4)
The
transferee
submitting
report for mutation on the basis of transfer
shall pay the mutation fee fixed by
Government Order issued from time to
time."

12. Rule 29 of the U.P. Revenue Code
Rules, 2016 is quoted as under:-

"29. Report regarding succession
(Section 33(1))---(1) Every report by or on
behalf of a person obtaining succession
possession of any land by succession
referred to in section [Section 33(1)] shall
be made, as soon as possible, in R.C. Form9.
(2) In the application/report for
mutation on the basis of Will or intestate
succession, the deceased shall not be
impleaded as opposite party. In the case of
report on the basis of Will, the heir of clause
(a) of section 108 or section 110 as the case
may be and if there is no heir of the
aforesaid clause and in the case of intestate
5 All. Smt. Madeena Vs. State of U.P. & Ors.
2313
succession, the heir of the succeeding
clause of section 108 or section 110 as the
case may be, shall be impleaded as
opposite party.
(3) Separate reports shall be made
for each village and if the land lies in more
than one Tahsil, the Collector shall decide
in which Tahsil, the proceedings shall be
held.
(4) The aforesaid report may be
submitted to the Revenue Inspector through
the Lekhpal. The Lekhpal shall immediately
issue a receipt therefor. No stamp duty is
required to be paid for such report.
(5)
If
the
person
obtaining
possession by succession is a minor, then
such report may be submitted by his
guardian
or
through
next
friend.
(6) If more than one person jointly obtain
possession over the land by succession, a
report by any one of them shall be deemed
to be sufficient compliance for the purposes
of section 33(1)."

13. Rule 188 of the U.P. Revenue
Code Rules, 2016 is quoted as under:-

" Provisions of the Code to apply
(Section 214)--Where in relation to any
suit, application or proceedings under the
Code, any express provision has been made
in the said Code or these rules or
Regulations
made
thereunder,
the
provisions of the Code, these rules or
regulations will apply, notwithstanding
anything contained in the Code of Civil
Procedure, 1908, or the Limitation Act,
1963."

14. Rule 192 of the U.P. Revenue
Code Rules, 2016 is as under:-

"192. Deterimination of questions
in summary proceedings (Section 225 A).
(1)
All
the
questions
arising
for
determination in any summary proceeding
under this Code or these rules shall be
decided upon affidavits.

(2) The following proceedings shall
be treated as summary proceedings,
namely:

Section Particulars
24
Demarcation proceedings
25
Proceeding regarding rights
of way and other easements.
26
Proceeding
regarding
removal of obstacle.
30(2)
Proceeding
regarding
physical division of minjumla
number.
31(2)
Proceeding
regarding
determination of shares.
32
Proceeding
regarding
correction of records.
35
Mutation proceedings.
38
Proceeding
regarding
correction
of
error
or
omission.
49
Proceeding
regarding
revision of map and records.
58
Proceeding
regarding
dispute arising in respect of
any property referred to in
sections 54, 56 or 57.
66
Proceeding
regarding
inquiry
into
irregular
allotment of Abadi sites.
67
Proceeding
regarding
eviction
of
unauthorised
occupants.
80
Proceeding
regarding
declaration
for
nonagricultural use.
82
Proceeding
regarding
cancellation of declaration.
98
Proceeding
regarding
permission
to
transfer
2314 INDIAN LAW REPORTS ALLAHABAD SERIES
Bhumidhari land to person
other than Scheduled Caste.
101
Proceeding for exchange.
105(2)
Proceeding for possession of
Land.
128
Proceeding for cancellation
of allotment and lease.
149 &
150
Proceeding for eviction of
Government lessee.
193
Proceeding to set aside sale
for irregularity.
195
Proceeding for setting aside
of sale by Collector or
Commissioner.
212
Proceeding for transfer of
cases.

(3) The State Government or the
Board may declare any other proceeding
except the suits under the Code or these
rules as the summary proceeding.
(4) The procedure for disposal of
summary proceedings is contained in
Revenue Court Manual."

15. R.C. Form -11 is reproduced as
under:-

R.C. FORM-11
[See Rule-33(1)]
Report regarding transfer of land
u/s 34 of U.P. Revenue Code, 2006
To,

The Tahsildar
.........................Tahsil
.......................District
1. Name, parentage and address of
applicant........................
2. Particulars of land acquired by
transfer
(including
area
and
land
revenue.................)
3. Name, parentage and address of
transferor.......................................
............
4. Name, parentage and address of
other transferee if any ............
5. Nature of transfer (sale, gift
etc................)
6.
Date
of
execution
and
registration of deed of transfer...............
7.
Amount
of
consideration..................................
......
8. Any other details.

Date:
......................................
Signature of applicant

16. The judgment in the case of
Shabbar Husain (supra) relied upon by the
petitioner deals with revision filed under
Section 48 of the U.P. Consolidation of
Holdings Act, 1953 therefore,s it will be
useful to look into provisions of Section 48
of the U.P. Consolidation of Holdings Act.
Section 48 of the U.P. Consolidation of
Holdings Act, 1953 provides for revision
and reference under the U.P. Consolidation
of Holdings Act, 1953 and the same is
quoted as under:-

"48. Revision and reference. - (1)
The Director of Consolidation may call for
and examine the record of any case decided
or proceedings taken by any subordinate
authority for the purpose of satisfying
himself as to the regularity of the
proceedings; or as to the correctness,
legality or propriety of any order (other
than an interlocutory order) passed by such
authority in the case or proceedings, may,
after allowing the parties concerned an
opportunity of being heard, make such
order in the case or proceedings as he
thinks fit.
(2) Powers under sub-section (1)
may be exercised by the Director of
5 All. Smt. Madeena Vs. State of U.P. & Ors.
2315
Consolidation also on a reference under
sub-section (3).
(3) Any authority subordinate to the
Director of Consolidation may, after
allowing
the
parties
concerned
an
opportunity of being heard, refer the record
of any case or proceedings to the Director
of Consolidation for action under subsection (1).
Explanation (I) For the purposes of
this
section,
Settlement
Officers,
Consolidation,
Consolidation
Officers,
Assistant
Consolidation
Officers,
Consolidator and Consolidation Lekhpals
shall be subordinate to the Director of
Consolidation.
Explanation (II) - For the purposes
of this section the expression 'interlocutory
order' in relation to a case or proceedings,
means such order deciding any matter
arising in such case or proceeding or
collateral thereto as does not have the effect
of finally disposing of such case or
proceeding.
Explanation (III). - The power
under
this
section
to
examine
the
correctness, legality or propriety of any
order includes the power to examine any
finding, whether of fact or law, recorded by
any subordinate authority, and also
includes the power to re-appreciate any
oral or documentary evidence."

17. In the case of Shabbar Husain
(supra) the following question was referred
to the Full Bench of this Court, which is
quoted in para 2 of the judgment and the
same is reproduced as under:-

"The question for determination is
thus stated in the referring order:
"Whether the territorial jurisdiction to
entertain/decide appeal or revision, against
the order passed on the objection or appeal
transferred outside the district will be at the
transferred district or at the district where
the
subject
matter
of
dispute/unit
situates?"

18. Interpreting the provisions of
the U.P. Consolidation of Holdings Act,
1953 the aforesaid question was answered
by the Full Bench in following terms:-

"35. If an appeal or objection is
transferred outside of the district, an
application (revision) under section 48 of
the Act would lie before the Deputy
Director of Consolidation of the same
District, where the matter was transferred
and not in the District where holding or unit
situates."

19. In paragraph 14 of the
judgment in the case of Shabbar Husain and
others Vs. Dy. Direction of Consolidation
Muzaffarnagar and another (supra); this
court has held as under:-

"....the Director of Consolidation
may call for and examine the record of any
case
or
proceeding
taken
by
any
subordinate
authority.
The
word
'subordinate' in the section assumes
significance. It clearly denotes that the
revisional court can correct the order of its
subordinate
authority.
Therefore,
the
Deputy Director of Consolidation of the
district, where the case was transferred can
correct the order of the Settlement Officer,
Consolidation, who is his subordinate
authority. In case revision is filed in the
district where the holding (unit) situates,
the revisional authority, in our opinion, has
no jurisdiction to correct the judgment of
the appellate authority of another district,
who is not his subordinate authority."

20. The judgement in case of
Shabbar Husain (supra) will not apply to
2316 INDIAN LAW REPORTS ALLAHABAD SERIES
the present proceedings as the Full Bench
was interpreting a provision i.e. Section 48
of the U.P. Consolidation of Holdings Act,
1953, which is different than the Section 35
of the Code. Under Section 48 of the U.P.
Consolidation of Holdings Act, word
'subordinate authority' has been used
whereas in the Section 35(2) of the Code, it
has been provided that a person aggrieved
by an order of the Tehsildar under subSection (1 ) may prefer an appeal to SubDivisional Officer. Word 'subordinate' has
not been used in the Section 35 of the Code,
therefore, the judgment in case of Shabbar
Husain (supra) will not apply to an appeal
filed under Section 35(2) of the Code.

21. Unlike Code of Civil
Procedure, (hereinafter referred to as
C.P.C.), (Section 15 to Section 21), the U.P.
Revenue Code, 2006 does not provide for
place of suing, but from the reading of
provisions of Sections 34, 35, Rule 33 and
RC Form 11, it is apparent that an
application or the report has to be submitted
to the Tehsildar of the Tehsil, within whose
jurisdiction the land is situated.

22. Thus, it is the place where the
property i.e. land lies, an application has to
be made to the concerned Tehsildar having
jurisdiction over the area. Section 214 of
the Code quoted above provides that the
provisions of C.P.C. will apply to every
suit, application or proceedings under this
Code. Rule 186 of the U.P. Revenue Code
Rules, 2016 provides that the provisions of
C.P.C. shall not be applicable to the
summary proceedings under the Code or
these Rules, but the principles enshrined in
the C.P.C., 1908, shall be observed in the
disposal of such proceedings. Rule 192 of
the U.P. Revenue Code Rules, 2016
provides that the proceedings under Section
35 of the Code shall be treated as summary
proceedings and therefore, even if the
provisions of the C.P.C. are not to be
applied, the principles enshrined in the
C.P.C. have to be followed while deciding
the proceeding under Section 35 of the
Code.

23. Section 21 of the C.P.C.
provides that no objection as to place of
suing shall be allowed by any Appellate or
Revisional court unless such objection was
taken in the Court of first instance at the
earliest possible opportunity and in all
cases where issues are settled at or before
such settlement, and unless there has been
a consequent failure of justice.

24. Section 21 of the C.P.C. is
quoted as under:-

"4[(1)] No objection as to the place
of suing shall be allowed by any Appellate
or Revisional Court unless such objection
was taken in the Court of first instance at
the earliest possible opportunity and in all
cases where issues are settled at or before
such settlement, and unless there has been
a consequent failure of justice.
2.....
3....."

25. Section 206 of the Code
provides for jurisdiction of civil court and
the revenue courts. Section 206 of the Code
is quoted as under:-

"206. Jurisdiction of civil court and
revenue
courts.---(1)
Notwithstanding
anything contained in any law for the time
being in force, but subject to the provisions
of this Code, no civil court shall entertain
any suit, application or proceeding to
obtain a decision or order on any matter
which the State Government, the Board,
any Revenue Court or revenue Officer is, by
5 All. Smt. Madeena Vs. State of U.P. & Ors.
2317
or under this Code, empowered to
determine, decide or dispose of.
(2) Without prejudice to the
generality of the provisions of sub-section
(1), and save as otherwise expressly
provided by or under this Code-
(a) no Civil Court shall exercise
jurisdiction over any of the matters
specified in the Second Schedule; and
(b) no Court other than the revenue
Court or the revenue officer specified in
5(column 3) of the Third Schedule shall
entertain
any
suit,
application
or
proceeding specified in 6(column 2)
thereof.
(3)
Notwithstanding
anything
contained in this Code, an objection that a
Court or officer mentioned in sub-section
(2)(b) had or had no jurisdiction with
respect to any suit, application or
proceeding, shall not be entertained by any
appellate, revisional or executing Court,
unless the objection was taken before the
Court or officer of the first instance, at the
earliest opportunity, and in all cases where
issues are settled at or before such
settlement, and unless there has been a
consequent failure of justice."

26. Sub-clause 3 of Section 206 of
the Code provides that objection as to
jurisdiction
that
a
court
or officer
mentioned in sub-Section 2 (b) has or has
no jurisdiction with respect to any suit,
application or proceeding, shall not be
entertained by any appellate, revisional or
executing court, unless the objections is
taken before the court or officer of the first
instance, at the earliest opportunity and in
all cases where issues are settled at or
before such settlement and unless there has
been a consequent failure of justice.
Though, Section 206 of the Code deals with
the jurisdiction of the Civil Court viz. a viz.
Revenue
Court,
but
the
principle
underlying the said provision will also
apply to the facts of the present case.

27. The Supreme Court in the case
of Hira Lal Patni Vs. Sri Kali Nath
reported in AIR 1962 SC 199, in
paragraph no. 4 has held as under:-

"4. The only ground on which the
decision of the High Court is challenged is
that the suit instituted on the original side
of the Bombay High Court was wholly
incompetent
for
want
of
territorial
jurisdiction and that therefore, the award
that followed on the reference between the
parties and the decree of Court, under
execution, were all null and void. Strong
reliance was placed upon the decision of
the Privy Council in the case of Ledgard v.
Bull, 13 Ind. App. 134 (P. C.). In our
opinion, there is no substance in this
contention. There was no inherent lack of
jurisdiction in the Bombay High Court
where the suit was instituted by the
plaintiff-decree-holder. The plaint had been
filed after obtaining the necessary leave of
the High Court under Cl. 12 of the Letters
Patent. Whether the leave obtained had
been rightly obtained or wrongly obtained
is not a matter which can be agitated at the
execution stage. The validity of a decree
can be challenged in execution proceedings
only on the ground that the court which
passed the decree was lacking in inherent
jurisdiction in the sense that it could not
have seizin of the case because subject
matter was wholly foreign to its jurisdiction
or that the defendant was dead at the time
the suit had been instituted or decree
passed, or some such other ground which
could have the effect of rendering the court
entirely lacking in jurisdiction in respect of
the subject matter of the suit in over the
parties to it. But in the instant case there
was no such inherent lack of jurisdiction.
2318 INDIAN LAW REPORTS ALLAHABAD SERIES
The decision of the Privy Council in the
case of 13 Ind. App. 134 (P. C.) is an
authority for the proposition that consent or
waiver can cure defect of jurisdiction but
cannot cure inherent lack of jurisdiction. In
that case, the suit had been instituted in the
court of the subordinate Judge, who was
incompetent to try it. By consent of the
parties, the case was transferred to the
Court of the District Judge for convenience
of trial. It was laid down by the Privy
Council that as the Court in which the suit
had been originally instituted was entirely
lacking in jurisdiction, in the sense that it
was incompetent to try it, whatever
happened subsequently was null and void
because consent of parties could not
operate to confer jurisdiction on a court
which was incompetent to try the suit. That
decision has no relevance to a case like the
present where there could be no question of
inherent lack of jurisdiction in the sense
that
the
Bombay
High
Court
was
incompetent to try a suit of that kind. The
objection to its territorial jurisdiction is
one which does not go to the competence of
the Court and can, therefore, be waived. In
the instant case, when the plaintiff obtained
the leave of the Bombay High Court on the
original side, under Cl. 12 of the Letters
Patent, the correctness of the procedure or
of the order granting the leave could be
questioned by the defendant or the
objection could be waived by him. When he
agreed to refer the matter to arbitration
through Court, he would be deemed to have
waived his objection to the territorial
jurisdiction of the Court, raised by him in
his written statement. It is well settled that
the objection as to local jurisdiction of a
court does not stand on the same footing as
an objection to the competence of a court to
try case. Competence of a court to try a
case goes to the very root of the
jurisdiction, and where it is lacking, it is a
case of inherent lack of jurisdiction. On the
other hand an objection as to the local
jurisdiction of a court can be waived and
this principle has been given a statutory
recognition by enactments like S. 21 of the
Code of Civil Procedure."

28. The objection has to be taken
at the earliest possible opportunity and if
the same is not taken, the objection cannot
be taken before the appellate or the
revisional court. Apart from this, the party
raising the objection has to demonstrate
that because of irregular exercise of
jurisdiction has resulted in failure of justice.
Keeping in view the provisions of Section
206 of the Code as well as Section 21 of the
C.P.C., the objection as to place of suing has
to be taken at the first opportunity and
failure to take such an objection will result
that the person/party cannot take this
objection at appellate or revisional stage.

29. In the facts of the present case,
the original application under Section 35(2)
of the Code was moved within the
jurisdiction
of
Tehsildar,
Tehsil-
Mauranipur, where the property in dispute
was situated. On a transfer application
moved by the respondent no. 5, the
application under Section 35 of the Code
filed by the respondent no. 5 was
transferred to the court of Tehsildar-
Garautha, another sub-division of DistrictJhansi where the said proceedings were
decided. Being aggrieved by the judgment
passed
by
the
Tehsildar-
Garautha,
respondent no. 5 filed an appeal before the
S.D.M. Mauranipur under Section 35(2) of
the Code.

30.

Learned
counsel
for
respondent no. 5 submitted that it was open
to the defendants to waive the objection and
if they did so, they could not subsequently
5 All. Smt. Madeena Vs. State of U.P. & Ors.
2319
take the objection.