Jumai vs Mushtaq

O. P., Mushtaq, applied to the, trial court for mutation of his name in place of revisionist Jumai on the basis of a ; registered sale deed said to have been executed by the latter. The mutation was resisted by the revisionist Jumai who denied the sale deed. He had also filed a civil suit for cancellation of the deed and while the mutation case was still pending the civil suit was decided on 16101981 in favour of the revisionist i. e. the sale deed was cancelled. On 10111981, the trial court dismissed, the mutation application. The order sheet reads as follows:

Subsequently, however, the O. P., Mushtaqs appealed against the civil court order and on 18583 the IV Addl. District Judges Allahabad, allowed the appeal, set aside the order of the lower court and dismissed the suit for cancellation of the sale deed. Thereafter, on 24583, the CK P. made a prayer to the trial court stating these facts and praying that the file be summoned and mutation be made. The trial court thereupon by means of the impugned order dated 3983 set aside the earlier order of 10ll81, restored the case to its original number and fixed a date for evidence. A revision against this order before the Addl. Collector, Allahabad, was dismissed whereupon under some misapprehension a second revision was filed under Section 218 of the U. P. Land Revenue Act before the Addl. Commissioner which was returned for presentation before the Board. Hence the present proceedings.

Learned counsel for the revisionist argued that there was no question of restoration since the order of 101181 was not ex parte but was passed in the presence of both the parties. It was also argued that except for setting aside the ex parte order no Court can cancel its earlier order except the Board which had got powers of review. It was argued that if a fresh cause has arisen, fresh mutation proceedings should be resorted to. Learned counsel for the O. P. on the other hand places emphasis on the prayer made in the application dated 24583 which is a prayer not for restoration but for reviving the proceedings. It was stated that it was never the case of the parties that an exparte order had been passed.

I have gone through the case and considered the above arguments. The order of 10111981 was certainly not ex parte but was passed on the merits of the case as they then existed namely, that the sale deed on which the mutation was sought had been cancelled by the civil court. The reversal of this civil court finding by a superior Court brings into existence a fresh fact and is, therefore, the basis of a review. Unfortunately, the subordinate revenue Courts have not been given the power of review. I am, therefore, inclined to agree with the learned counsel for the revisionist that it is a case for fresh proceedings. In order to avoid future litigation, if resorted to, taking a wrong turn it is clarified that fresh mutation proceedings shall not stand barred merely because the earlier mutation proceedings had been dismissed on the basis of the civil court pronouncement as they then stood, With these observations the revision is allowed, the order of the trial court dated 3983 and the subsequent order of the Addl. Collector dated 2521984 are set aside. It is not necessary to formally set aside the order of the Addl. Commissioner dated 12184 which is not only correct but also merely directs the revisionist to present his revision before the Board.

(Revision allowed).