IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.608  OF 2009 (Arising out of SLP[C] NOS.1665/2007

EHSON BEG & ANR. …. PETITIONER

VS.

MOHD.YASEEN BEG & ORS.       …. RESPONDENTS

O R D E R

Leave granted. Heard.    

2. The  lands  in  question  originally  belonged  to  one

Irfanul Haq Beg.  He is stated to have died leaving a will

dated 13.12.1967 bequeathing the suit lands to one Naseer

Baig (father of appellants) subject to a life interest in

favour of Mariyam Bibi (wife of the testator).  The first

respondent  is  a  transferee  from  Mariyam  Bibi  under  sale

deed dated 11.10.1990.  On the death of Mariyam Bibi, the

first respondent sought mutation to his name in the revenue

records. The appellants objected. The Tehsildar by order

dated 26.4.2001 overruled the objections of the appellants

and directed mutation from the name Mariyam Bibi to that of

first respondent.

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3. Feeling  aggrieved  the  appellants  appealed  to  the

Additional  District  Magistrate  (Sadar),  Sultanpur,  who

allowed the appeal by order dated 9.10.2002 and directed

that the names of appellants be entered as the Bhumidars in

place of Mariyam Bibi and remanded the matter for rehearing

on merits after granting opportunity to the parties. The

first respondent filed a revision against the said order.

The  Additional  Commissioner (Judicial), Faizabad  rejected

the revision by order dated 25.10.2005 thereby affirming

the order of the appellate authority. The said order was

challenged by the first respondent in a writ petition.  A

learned  Single  Judge  of  the  High  Court  by  order  dated

29.3.2006 dismissed the writ petition filed by the first

respondent. Having dismissed it, he however observed that

until the matter was decided by the Tahsildar on remand as

directed  by  the  appellate  authority,  the  entry  of  first

respondent’s name in the revenue records will continue and

the possession of the first respondent will also continue

undisturbed.

4. Being aggrieved by the said observation of the High

Court while dismissing the first respondent’s writ petition

the appellants have filed this appeal by special leave.

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5. The Additional District Magistrate set aside the order

of the Tahsildar directing mutation in the name of first

respondent, and directed that the name of the appellants

should be entered pending rehearing.  The said order was

affirmed by the revisional authority. The said order was

also  affirmed  by  the  High  Court  by  dismissing  the  writ

petition filed of the first respondent. Having dismissed

the writ petition, the High Court ought not to have added

any observation which would tend to virtually nullify the

dismissal  of  the  writ  petition  as  also  orders  of  the

appellate authority and the revisional authority which were

affirmed by its order.  Further, the observation in regard

to possession was not warranted, as it was not the subject

matter of the writ petition.

6. In the circumstances, we allow this appeal in part and

set aside the observations in the impugned order to the

effect that the entry of first respondent’s name in the

revenue  records  will  continue  until  the  decision  of

Tahsildar and the first respondent’s possession will not be

disturbed. Having regard to the nature of the dispute, the

Tahsidar will decide the matter as per the order of remand,

in accordance with law, expeditiously.

_________________J.

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[R. V. Raveendran]

__________________J [J. M. Panchal]

New Delhi; January 30, 2009.   

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