SUNITA UPADHYAY Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Mr. Sanjay Kumar Singh, counsel for the petitioner, Mr. Mukesh Kumar Singh, learned counsel for respondent no.5 and 6, learned Standing Counsel for the State-respondents and Mr. Bhupendra Kumar Tripathi, learned counsel for respondent no.4 / Gaon Sabha.

(2.) Brief facts of the case are that father of respondent nos.5 and 6 was recorded tenure holder of the plots in dispute. Mangaru Upadhyay, father of respondent nos.5 and 6 had no male child, he had only two daughters i.e. respondent nos.5 and 6 (Asha Upadhyay and Usha Upadhyay). Mangaru Upadhyayhad her wife Smt. Lalti Devi. Mangaru Upadhyay executed a registered Will-deed on 22/3/1999 in favour of her daughters i.e. respondent nos.5 and 6. Respondent nos.5 and 6 were married in the life time of their father and were residing in their in-laws house. It is also alleged in the writ petition that subsequently Mangaru Upadhyay had also executed an unregistered Will-deed dtd. 7/2/2022 in respect to Arazi No.-998 area 0.747 hectare. The earlier registered Will-deed executed on 22/3/1999 was cancelled in respect of Arazi No.998 area 0.747 hectare. Mangaru Upadhyay expired on 18/2/2002. After the death of Mangaru Upadhyay, respondent nos.5 and 6 as well as wife of deceased Mangaru Upadhyay applied for mutation which was allowed on 16/12/2003. Against the order dtd. 16/12/2003, petitioner filed an application for recalling the order dtd. 16/12/2003. The recall application filed by the petitioner was allowed on 9/9/2004 and the name of the petitioner's husband was ordered to be recorded over Arazi No.998. Against the order dtd. 9/9/2004, respondent nos.5 and 6 filed recall application which was allowed on 15/4/2016 setting aside the order dtd. 9/9/2004. Mother of respondent nos.5 and 6 executed the Will-deed in favour of respondent nos.5 and 6 in respect to Arazi No.998. On the basis of Will-deed executed by mother of respondent nos.5 and 6, names of respondent nos.5 and 6 was mutated in the revenue records. On the application of the petitioner against the order of mutation passed in favour of respondent nos.5 and 6 was recalled vide order dtd. 28/3/2016. Respondent nos.5 and 6 challenged the order dtd. 28/3/2016 in appeal which was allowed and order dtd. 28/3/2016 was set aside and the mutation applied by the petitioner on the basis of unregistered Will-deed dtd. 7/2/2002 was dismissed by Tahsildar (Judicial), Sadar, Varanasi. Petitioner challenged the order dtd. 1/3/2021 through revision before the Commissioner which was dismissed vide order dtd. 23/8/2022, hence this writ petition.

(3.) Learned counsel for the petitioner submitted that the petitioner's mutation on the basis of unregistered Will-deed dtd. 7/2/2022 has been illegally refused by the Naib Tahsildar although the unregistered Willdeed setup by the petitioner has not been cancelled by any Court. He further submitted that respondent nos.5 and 6, daughters of Mangaru Upadhyay was not maintaining their father, Mangaru Upadhyay, as such, the subsequent unregistered Will-deed was executed on 7/2/2002 in respect of Arazi No.998 area 0.747 hectare only. He further submitted that reason was assigned in the subsequent unregistered Will-deed by recorded tenure holder by which the registered Will-deed executed by him was cancelled in respect of plot no.998 only. He next submitted that impugned orders are illegal and liable to be set aside.