Alok Singh, J.@mdashWith the consent of the parties, this writ petition is being disposed of finally at the admission stage.
2. Heard at length Mr. Manoj Tiwari, counsel for the Petitioners and Mr. A. Rub, counsel for the Respondents.
3. By way of present writ petition, Petitioners are assailing the order dated 09-10-2009 passed by the Additional Chief Revenue Commissioner, Uttarakhand, Dehradun, by which revision No. 07/2002-03 was allowed. While allowing the Revision, Learned Additional Chief Revenue Commissioner has observed that longstanding entries were illegally disturbed in summary proceedings. Learned Commissioner also held that Mr. Raj Narain was sole owner in his own right and property in dispute was self acquired property.
4. Brief facts of the present case are that Petitioners moved an application before the Record Officer, Dehradun u/s 54 of U.P. Land Revenue Act, saying property in dispute was of Mr. Fateh Singh. It was further contended that Fateh Singh had four sons namely Raj Narain, Narain Singh, Nand Ram & Sher Singh. According to the Petitioners, this property was HUF property and after death of Fateh Singh, names of his above four sons should have been mutated. However mutation was wrongly made in favour of Raj Narain which should be deemed in the capacity of Karta Khandan. Petitioners, claiming themselves co-sharer being sons of Sher Singh, sought mutation. Learned Record Officer vide order dated 28th January, 1994 allowed the application of the Petitioners, directed to mutate the names of the Petitioners as co-sharers. Learned Record Officer has observed that property in dispute was of HUF property.
5. Feeling aggrieved from the judgment and order passed by the Learned Record Officer dated 28-01 -1994, an appeal was preferred by the Respondents herein which came to be dismissed vide judgment dated 11 -06-1997, upholding the findings recorded by the Record Officer.
6. Feeling aggrieved from the judgment passed by the Record Officer as well as the Appellate Court, Respondents herein preferred revision No. 07/2002-03 before the Additional Chief Revenue Commissioner, Uttarakhand, Dehradun which was allowed by the impugned judgment dated 09-10-2009.
7. Mr. Manoj Tiwari, Learned Counsel for the Petitioner stated that Revisional Court, at one place, held that in summary proceedings u/s 54, question of title and dispute pertaining to longstanding entries should not be decided and yet, at another place, Revisional Court entered into the complicated question of title and disturbed and findings of fact recorded by the Courts below and substituted its own findings.
8. Mr. A. Rab, Learned Counsel for the Respondents argued that present writ petition is not maintainable arising out of the summary proceedings i.e. u/s 34 or 54 of U.P. Land Revenue Act. Mr. Rab has placed reliance on 1996 (87) RD 569 Summer Lal and Ors. v. Board of Revenue and judgment of Apex Court reported in 2009 5 ALJ 244 Radhey Shyam and Anr. v. Chhabi Nath and Ors.
9. Allahabad High Court in the matter of Summer Lal (supra) in paragraph No. 5 has held:
In view of the above provision of U.P. Land Revenue Act even if the Petitioners have filed this writ petition under Article 227 of the Constitution of India, the question remains that in such orders which are passed in summary proceedings should this Court invoke its supervisory jurisdiction under Article 227 of the Constitution of India. Where there is no manifest illegality in the impugned order, normally interference will not be made in exercise of power either under Article 226 or 227 of the Constitution of India. The Petitioners in this case have alternative remedy.
10. I am in full agreement with the observations made by the Learned Single Judge of the Allahabad High Court in para 5 that where there is no manifest illegality in the impugned order, normally interference will not be made in exercising of power either under Article 226 or 227 of the Constitution of India.
11. Hon''ble Apex Court in the matter of Radhey Shyam (supra) in paragraph 29 has observed that:
Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and Courts within the bounds of their authority. Under Article 227, orders of both Civil and Criminal Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law. The essential distinctions in the exercise of power between Articles 226 and 227 are well known and pointed out in Sun/a Dev Rai (supra) and with that we have no disagreement.
12. From the perusal of the para No. 29, it can safely be held that only in exceptional cases, when manifest miscarriage of justice, is bound, powers under Article 227 and 226 of the Constitution of India can be invoked.
13. The mute question before this Court is, as to whether Courts below committed manifest error of law ?
14. It is well settled principle of law that Revenue Courts while exercising power u/s 34 and 54 of Land Revenue Act, decide the case summarily and in summary proceedings, complicated question of title cannot be decided. Moreover, any finding recorded in summary proceedings cannot be Res judicata in subsequent regular title suit.
15. Learned Addition Chief Revenue Commissioner, at one place, rightly held that complicated question of title and dispute pertaining to longstanding entries should not be decided in summary proceedings.
16. In view of the finding that complicated question of title cannot be gone into in summary proceeding of mutation and correction of records, Learned Revisional Court committed manifest error of law and exercised jurisdiction not vested in him by holding that property in dispute is self acquired property ad not a H.U.F. property.
17. Mr. Rab further stated that Petitioners herein have already filed suit for title/ declaration u/s 229B of U.P. Zamindari Abolition & Land Reforms Act, 1950 being regular suit No. 53 of 2006-07 which is still pending in the Court of Assistant Collector, 1st Class, Dehradun. In view of pendency of regular suit, there was no justification for the Revisional Court to enter into the question of fact which is involved in the pending regular suit. On this account, also Learned Revisional Court committed grave jurisdictional error.
18. Since the Learned Commissioner/Revisional Court committed manifest error of law, hence this Court can invoke its jurisdiction under Article 227 of the Constitution of India. In view of the above, this Court is of firm opinion that present petition is maintainable.
19. This Court is of the view that complicated question of title was raised in the application u/s 54. Hence, application u/s 54 of UP. Land Revenue Act moved by the Petitioners herein, should have not been entertained by the Record Officer.
20. In view of the above, Record Officer committed jurisdictional error by recording finding of fact, declaring property in dispute as HUF property. The same mistake was committed by the Appellate Court and Revisional Court. Hence, this Court has no other option except to quash all the three orders passed by Record Officer, First Appellate Court as well as Revisional Court.
21. Order dated 28-01-1994 passed by Record Officer (Annexure No. 3 to the writ petition), order dated 11-06-1997 passed by First Appellate Court (Annexure No. 4 to the writ petition) and order dated 09-10-2009 passed by Additional Chief Revenue Commissioner, Uttarakhand (Annexure No. 5 to the writ petition) are hereby quashed, 22. However, it is made clear since regular suit is pending u/s 229B, it would be open for the court, hearing the suit u/s 229B to decide all the questions of fact. With these observations, writ petition stands disposed of.
