BHUWAN CHANDRA SAH Vs. ADDITIONAL COMMISSIONER KUMAON UTTARAKHAND

JUDGEMENT

(1.) PETITIONERS have invoked Articles 226 / 227 of Constitution of India assailing the orders dated 15.09.2003, 11.06.1998 and 22.01.1999 whereby mutation application, moved by the petitioners herein to mutate the name of the petitioners in the revenue record over the property in dispute pursuant to the oral family settlement and subsequent memorandum of family settlement dated 30th September, 1935, was rejected by the Tehsildar and appeal and revision arising therefrom were also came to be dismissed. Brief facts of the present case, inter alia, are that name of Harkishan Lal Sah was recorded in the revenue record as the owner in possession of the property in question. Undisputedly, Shri Harkishan Lal Sah had three brothers, namely, Bhawani Dass Shah, Moti Ram Shah and Kundan Lal Shah. It is stated before me that name of Shri Harkishan Lal Shah was recorded in the revenue record in a representative capacity being elder brother / karta, since, in fact, property was joint Hindu family property of all the four brothers. It is further stated that after the death of Harkishan Lal Shah in the year 1926 sons of Harkishan Lal as well as Bhawani Dass Shah, Moti Ram Sah and Kundan Lal Shah all three brothers of Harkishan Lal Shah agreed to partition the property by way of mutual partition. Consequently, as per the oral settlement (partition) different lots were prepared and handed over to different co -owners and ultimately oral partition so effected was reduced in writing in the shape of memorandum of partition in the year 1935.

(2.) AN application seeking mutation was moved about after 60 years, from the date of memorandum of partition which was initially rejected by the learned Tehsildar vide order dated 26.11.1996, however, appeal arising therefom was allowed by the Assistant Collector, Ranikhet vide order dated 10.09.1997 remanding the mutation case to decide it afresh in accordance with law. After the remand, learned Tehsildar once again dismissed the mutation application vide impugned order dated 11.06.1998, holding that petitioners could not prove themselves successors of Shri Harkishan Lal Shah. Appeal arising thereform was dismissed vide order dated 22.01.1999 and thereafter revision arising thereform was dismissed vide order dated 15.09.2003. Hence present petition. I have heard Mr. B.C. Pandey, Senior Advocate assisted by Mr. Siddhartha Sah, Advocate for the petitioners and Mr. M.C. Pandey, Senior Advocate assisted by Mr. Devesh Upreti, Advocate for the respondents and have carefully perused the record.

(3.) I have carefully perused the alleged family settlement, annexure No.1 to the writ petition. It is nowhere mentioned in the alleged memorandum of family settlement that name of Shri Harkishan Lal Shah was recorded in the revenue record in representative capacity being Karta of joint Hindu Family. I am unable to agree with the contention of learned counsel for the petitioners that language of the memorandum of family settlement shall demonstrate that property was joint Hindu Family property in view of the fact that sons of Harkishan Lal Shah agreed to partitioned the same admitting the property as joint property. Sections 34, 35 and 38 of the U.P. Land Revenue Act, 1901 reads as under : -