BHUWNESHWARI GURURANI Vs. COMMISSIONER KUMAUN DIVISION NAINITAL

JUDGEMENT

(1.) ALL these writ petitions are interconnected and involved identical questions of facts and law, therefore, with the consent of learned counsel for the parties, all these writ petitions are heard together and are being disposed of by this common judgment.

(2.) UNDISPUTEDLY , late Shri B.G. Dass was bhumidhar in possession of property, in question, Village Mukhani, Tehsil Haldwani, District Nainital; Mr. Bhupendra Singh, respondent No.7 moved an application seeking mutation before the Naib Tehsildar, West Circle, Haldwani, District Nainital under Section 34 of U.P. Land Revenue Act in the year 1991, saying Shri B.G. 6 Dass, father of respondents A.R. Dass, B.S. Dass and D.B. Dass, has in fact executed one unregistered will in favour of Bhupendra Singh; Mr. B.G. Dass expired in the year 1989, therefore, Mr. Bhupendra Singh had inherited the property of Mr. B.G. Dass on the strength of unregistered will; vide order dated 17.01.1991, Mutation Application Case No. 30/185 of 90 -91 was dismissed for non prosecution, however, it was also recorded by the Naib Tehsildar that no evidence was produced on record in support of claim of Shri Bhupendra Singh; thereafter, without recalling the order dated 17.01.1991, learned Naib Tehsildar was pleased to allow the mutation application moved by Bhupendra Singh vide order dated 08.05.1991 mutating the property in question in favour of Bhupendra Singh on the basis of alleged unregistered will executed by Mr. B.G. Dass; Bhupendra Singh thereafter executed several sale deeds in favour of the petitioners herein of the different portions of the property in question; names of the vendees from Bhupendra Singh were also mutated in the revenue record; however, meanwhile, vide order dated 22nd November, 1997, property was declared as abadi (non agricultural) by exercising the power under Section 143 of the U.P. Z.A. and L.R. Act; legal heirs and natural sons of B.G. Dass, having acquired knowledge about the mutation orders over the property belonging to their father moved application under Section 201 of U.P. Land Revenue Act on 09.08.2005 for recalling of the order dated 08.05.1991 mutating the property in favour of Bhupendra Singh and to restore mutation case at its own number to be decided afresh after hearing both the parties; during the hearing of the restoration application moved under Section 201 of the U.P. Land Revenue Act, 7 it was argued that Mr. B.G. Dass was retired Army personnel and in fact expired in the year 1999 and never executed any will in favour of Bhupendra Singh and during his life time, mutation application moved in the year 1991 on the strength of alleged will of Mr. B.G. Dass was not maintainable; application so moved by the natural sons and legal heirs of Mr. B.G. Dass was allowed vide order dated 12.08.2010; order dated 12.08.2010 was challenged by the vendees of Bhupendra Singh / petitioners herein before the learned Divisional Commissioner, Kumaon in different revisions filed under Section 219 of the U.P. Land Revenue Act; revisions so filed by the vendees from the Bhupendra Singh were dismissed by the learned Revisional Court / Divisional Commissioner vide judgment dated 21st November, 2013; feeling aggrieved, vendees from Bhupendra Singh have approached this Court by way of present petitions. This is a settled position of law that mutation does not confer any title and it is the source of title which is to be seen. In my further considered opinion, proceedings under Section 34 of U.P. Land Revenue Act is summary in nature and mutation order passed therein does not have any effect of res judicata and mutation order passed therein does not confer any right or title in favour of the person in whose favour mutation order was passed. In the present cases, the important question arises as to whether Mr. B.G. Dass, in fact, expired in the year 1989 as alleged by the vendees from Bhupendra Singh or was in fact expired in the year 1999 as alleged by the natural sons / LRs of Mr. B.G. Dass. To find out the correct date of death of B.G. Dass, ample evidence has to be looked into viz. service record of Mr. B.G. Dass duly maintained by the Army Authorities as to when pension 8 was stopped on account of death of Mr. B.G. Dass an exarmy personnel as well as death certificate and other oral evidence which is not available on the record. It is settled principle of law that while exercising jurisdiction under Articles 226 / 227 of the Constitution of India, ordinarily, this Court should not enter into the complicated questions of facts and evidence which is highly disputed by both the parties.

(3.) THERE is another aspect of the matter. As on day, there is no material available on the record to demonstrate as to how Bhupendra Singh was related / connected with B.G. Dass and as to how Mr. B.G. Dass has executed will in favour of Bhupendra Singh excluding his own natural sons and legal heirs respondents herein.