Irfan Shafi vs State of U.P. and others

Amreshwar Pratap Sahi, J.—Heard learned Counsel for the petitioner, learned Counsel for the newly impleaded respondent No. 4, and the learned Standing Counsel for the respondent Nos. 1 to 3.

The petitioner, son of Mohd. Shafi, claims to have inherited the property under a gift deed executed by his father during his life time along with his brother the respondent No. 4. The respondent No. 4 appears to have been dissatisfied with the said gift deed dated 18.5.2002 and filed a suit for cancellation of the same being Original Suit No. 459 of 2003. The said suit continued in the which the father of the petitioner was also one of the defendants and after sometime there appears to have been a compromise in the suit on the basis whereof the same came to be decreed under the order dated 21st July, 2004.

Mutation proceedings were undertaken and a report was submitted by the Lekhpal. The mutation application was dismissed in default whereafter a restoration was moved by the petitioner. The restoration application was rejected and the revision against the same was also dismissed. The petitioner being aggrieved has approached this Court and it is urged that the authorities below have taken a totally erroneous view on the restoration matter by indicating that since the petitioner and the respondent No. 4 are claiming mutation on the strength of a decree of the Civil Court therefore the application u/s 34 of the Land Revenue Act, 1901, would not be maintainable.

Learned Counsel submits that the petitioner or the respondent No. 4 had not approached the Tehsildar for the execution of the decree of the Civil Court, rather they had staked their claim on the basis of a gift deed and the compromise order was taken in support as an evidence. It is therefore urged that the mutation application was very much maintainable.

Learned Standing Counsel submits that the petitioner has no locus to maintain the petition, inasmuch as, the mutation application had not been moved by him and secondly that the decree of the Civil Court can be executed through the provisions of Order XXI before the Executing Court itself and not through an application u/s 34 of Land Revenue Act, 1901.

Having heard learned Counsel for the petitioner and the learned Standing Counsel, the basic stand taken by the petitioner and the respondent No. 4 who are real brothers was to the effect that they inherited the property of their father during his life time under a gift deed which was never disputed by their father. He died on 13th February, 2009 seven years after the execution of the gift deed. The suit itself had been decided on the basis of a compromise and the decree was only an evidence of the fact of the execution of the gift deed. It is therefore submitted that the conclusion drawn that the petitioner had approached the authorities for the execution of the decree of the Civil Court is erroneous and the contention appears to be correct, inasmuch as, the mutation is sought on the basis of the gift deed and not on the basis of the decree of the Civil Court. The decree of the Civil Court is in aid of the said gift deed which was subject-matter of dispute before the Civil Court. In the opinion of the Court there was no impediment in entertaining the mutation proceedings and therefore the impugned orders are not in conformity with law.

However, in view of the position that has emerged, the petitioner shall now file a fresh application before the respondent No. 3, and the respondent No. 4 shall also file his application bringing to the knowledge of the Tehsildar about the passing of the order by this Court. A certified copy of this order shall be filed before him and the Tehsildar shall after verifying the claims of the petitioner proceed to pass an appropriate order, provided, there is no other legal impediment and there are no other legal claimants in relation to the property in dispute. The order shall be passed by the Tehsildar in the light of the observations made hereinabove within three months of the date of presentation of a certified copy of this order before him.

The writ petition is accordingly disposed of.