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2018 DAILYLAW 2634 (ALL)

Amar Nath Arora v. Board Of Revenue U. P. Lucknow

2018-12-07

Devendra Kumar Upadhyaya

body2018
Judgment Hon'ble Devendra Kumar Upadhyaya,J. Heard Dr L P Misra, learned counsel for the petitioner, learned Standing Counsel representing the State-respondents and Sri Mohd Arif Khan, learned Senior Advocate assisted by Sri Amit Kumar Singh Bhadauria and Sri Sanjay Tripathi, Advocates for respondent no.4. 2. For the reasons disclosed hereinafter, since respondent nos.5 to 11 are proforma respondents, notices need not be issued to them. 3. With the consent of learned counsel for parties, the writ petition is being decided finally at the admission stage itself. 4. Under challenge in this petition is an order dated 30.01.2018 passed by Naib Tehsildar, Khushhal Ganj, Sarojini Nagar, Lucknow, whereby the land in dispute comprised in gata no.902 admeasuring 0.325 hectares, situate in village Gauri, Pargana Bijnor, Tehsil Sarojini Nagar, District Lucknow has been ordered to be mutated in the name of respondent no.4. The petitioner has also challenged the order dated 25.04.2018 passed by the Sub-Divisional Officer, Sarojini Nagar, Lucknow whereby appeal preferred by the petitioner under Section 207 of U.P Revenue Code, 2006 against the order dated 30.01.2018 passed by the Naib Tehsildar, has been dismissed. The petitioner also challenges the order dated 18.09.2018 passed by the Board of Revenue whereby the revision petition preferred by the petitioner against the appellate order dated 25.04.2018 and the order of Naib Tehsildar dated 30.01.2018, has been dismissed. 5. The facts of the case, which can be culled from the pleadings available on record and the submissions made by learned counsel representing the respective parties, are that the common ancestor of the predecessor-in-interest of the petitioner and the respondent nos.5 to 11, late Gopi Nath Rastogi owned certain properties in village Gauri, Pargana Bijnor, Tehsil Sarojini Nagar, District Lucknow. These properties included the land of khasra plot nos. 901 and 902. 6. The following pedigree, which is not in dispute, is relevant to be mentioned for proper adjudication of the issues involved in this petition: 7. It has been submitted by learned counsel for the petitioner that plot no.901 came to be recorded in the name of Lal Chand Rastogi- predecessor-in-interest of the petitioner. There is no dispute in relation to plot no.901. The dispute in this case concerns plot no.902 which was recorded in the name of late Brij Nath Rastogi, who is ancestor of respondent nos.8 to 11. 8. There is no dispute in relation to plot no.901. The dispute in this case concerns plot no.902 which was recorded in the name of late Brij Nath Rastogi, who is ancestor of respondent nos.8 to 11. 8. It is relevant to notice at this juncture itself that respondent nos.8 to 11 are the predecessors-in-interest of respondent no.4, who are said to have parted with their rights in the land in dispute in favour of respondent no.4 by executing a sale deed on 06.04.2017, which has been registered on 10.04.2017. Respondent nos.5 to 7 are the successors in interest of late Lal Chand Rastogi, who is said to have parted with his rights in land in dispute in favour of the petitioner. 9. It is in this view of the matter that respondent nos.5 to 11 have been treated to be proforma respondents in this case and the Court has thus not issued notice to them. 10. It has been pleaded by learned counsel for the petitioner that the land of plot no.901 was recorded in the name of Lal Chand Rastogi and that the plot no.902 came to be recorded in the name of Brij Nath Rastogi and since immovable properties belonged to common ancestor and were scattered at many places, therefore surviving legal heirs and the successors of Gopi Nath Rastogi entered into family settlement through a document dated 12.11.1978. The said alleged family settlement, dated 12.11.1978 has been annexed as annexure no.5 to the writ petition, according to which plot no.902, which is adjoining plot no.901 was given to Lal Chand Rastogi and his father Shayam Lal Rastogi and accordingly both the plots, namely, 901 and 902 came to be fold of Lal Chand Rastogi through the aforesaid family settlement dated 12.11.1978 and in lieu thereof, rest of the members of family were adjusted against other immovable properties. 11. 11. It has further been argued on behalf of the petitioner that Lal Chand Rastogi executed a registered sale deed dated 14.01.1984 in favour of petitioner’s father-late Lal Chand Arora and further that Lal Chand Rastogi also sold plot no.902 to the petitioner by accepting a sale consideration of Rs.34,763/- through a demand draft which was issued by the Bank of India, Sarojini Nagar Branch, Lucknow on 16.12.1985 and the said bank draft was encashed by Lal Chand Rastogi who in furtherance of such an oral sale, delivered the possession of the land to the petitioner. It has further been stated by learned counsel for the petitioner that after taking possession of plot nos. 901 and 902, the petitioner developed the said land as a Marriage Lawn in the name of ‘Green Garden’ in the year 1995 and since then he has been running the said lawn under the annual license issued from time to time by Nagar Nigam, Lucknow. The licenses issued in favour of the petitioner for running Marriage Lawn from time to time, have been annexed as annexure no.7 to the writ petition. The last such license is said to have been issued on 06.04.2018, which is valid till 31.03.2019. Further submission made on behalf of the petitioner is that since respondent no.10-Vimarsh Kumar Rastogi intended to forcibly vacate the petitioner’s possession from the Marriage Lawn, the petitioner instituted Regular Suit no.23 of 2006 in the court of Civil Judge (Senior Division), Lucknow which now stands transferred to the court of Judge, Small Causes Court and is pending there having been registered as Regular Suit No.179 of2017, wherein a decree for permanent injunction has been prayed for. 12. Attention of the Court has also been drawn to an interim injunction order dated, 20.04.2018 passed by the First Additional Judge, Small Causes Court, Court No.18, Lucknow whereby the defendants in the suit have been directed not to interfere in the peaceful possession of the petitioner and further that the civil court has ordered that they shall not evict him by force or by any unlawful means. 13. 13. Sri L P Misra, learned counsel appearing for the petitioner has stated that during pendency of the said civil suit instituted by the petitioner, the respondent nos.8,9 and 10 in their individual capacity and as general power of attorney of respondent no.11 executed a sale deed dated 06.04.2017, which is said to have been registered on 10.04.2017 in favour of respondent no.4. 14. It is on the basis of the aforesaid sale deed executed on 06.04.2017 that the mutation was sought by the respondent no.4 by moving an application before the court of Naib Tehsildar concerned. In the mutation case instituted by respondent no.4, the petitioner filed objections stating therein that he has been in possession over the land comprised in plot no.902, on the basis of oral sale dated, 16.12.1985, which was made for a sale consideration of Rs.34,695/- and that on this very plot and also on plot no.902, the petitioner has been in possession whereupon he has developed Marriage Lawn (Green Garden) which is running on these plots on which certain constructions, such as Washroom, Bathroom and Kitchen etc. also exist. The Naib Tehsildar ordered mutation in the name of respondent no.4 on the ground that it is the recorded tenure holders who have executed sale deed and that the vendors of the sale deed executed on 06.04.2017 have not filed any objection and that name of the petitioner is not recorded in the khatauni. The Tehsildar has, thus, recorded a finding that since purpose of mutation is collection of land revenue and right and title between the parties cannot be decided in mutation proceedings and that the orders passed by the mutation court shall always be subject to the orders passed by the civil court and further that there is no order cancelling the sale deed or staying its operation by any court, as such only because of the pendency of the civil suit between the parties, mutation proceedings cannot be deferred. Rejecting the objections made by the petitioner, the Naib Tehsildar thus ordered that name of respondent no.4 be mutated over the land in dispute, namely, plot no. 902. 15. Rejecting the objections made by the petitioner, the Naib Tehsildar thus ordered that name of respondent no.4 be mutated over the land in dispute, namely, plot no. 902. 15. The appeal preferred by the petitioner against the said order of mutation passed by the Naib Tehsildar dated 30.01.2018 has also been dismissed by the Sub-Divisional Officer, Sarojini Nagar, Lucknow, who has also reiterated the observations/findings recorded by the Naib Tehsildar in his order and has dismissed the appeal on the ground that since the petitioner is not recorded in the khatauni, neither is there any objection by the vendors of the sale deed executed on 06.04.2017, as such the order passed by the Naib Tehsildar did not warrant any interference. 16. The Board of Revenue has also reiterated the findings recorded by the trial court as well as the appellate court and has thus, dismissed the revision petition by the order dated 18.09.2018, which, too, has been challenged in this petition. 17. Primary submission made by learned counsel for the petitioner challenging the orders passed by the mutation courts is that the petitioner has been in lawful possession and the land comprised in plot no.902 stood transferred in favour of the petitioner on the basis of oral sale said to have taken place on 16.12.1985 and on the basis of evidence available on record, it was clearly established that the petitioner has been running a Marriage Lawn since the year 1985 and thus he has been in possession and accordingly in absence of possession of respondent no.4, the order of mutation could not have been passed. 18. Drawing attention of Sections 34 and 35 of U.P. Revenue Code, 2006, learned counsel for the petitioner has stated that mutation in cases of succession or transfer is to be based on obtaining possession of any land by transfer or succession. His submission is that for recording the mutation order, the applicant seeking mutation should establish that he has obtained possession of the land by lawful transfer or succession and that merely because the sale deed has been executed in favour of a person seeking mutation of his name in the revenue records, it will not entitle a person to be mutated unless he establishes that by transfer he has also obtained possession. He has also stated that mere recording of the name in khatauni and transfer of land by such recorded tenure holder in favour of vendee, will not entitle the vendee for getting his name mutated in absence of valid possession. He has also stated that in fact, the khatuni entries are rebuttable and that the land of gata no.902 stood transferred in favour of the predecessor-in-interest of the petitioner on the basis of family settlement dated, 12.11.1978 and thereafter in favour of the petitioner on the basis of oral sale dated 16.12.1985. 19. In sum and substance, the argument made by learned counsel for the petitioner is that unless and until a party claiming mutation establishes obtaining possession, mutation order in favour of such a party cannot be passed and that in this case, despite there being overwhelming evidence available on record in respect of the petitioner’s possession, the courts below have not recorded a finding in respect of possession even in favour of respondent no.4 and in absence of any such finding, mutation order is bad. 20. Sri Mohd Arif Khan, learned Senior Advocate appearing for the respondent no.2 has vehemently opposed the prayer made in this petition and has stated that family settlement on the basis of which right is said to have devolved in the land in question upon the predecessor-in-interest of the petitioner, dated 12.11.1978 is an unregistered document and in fact, in view of the law laid down by Hon’ble Supreme Court in the case of Kale and others vs. Deputy Director of Consolidation and others reported in 1976 (2) AllLR 173 , the same cannot be read in evidence. He has also stated that distinction needs to be drawn between a document containing terms and recitals of a family arrangement made under a document and a mere memorandum prepared after family arrangement had already been made. He has also stated that in a situation, where the memorandum does not create or extinguish any right in the properties, it need not be compulsorily registered. However, if by an instrument or document, terms of family arrangement are reduced in writing, registration would be necessary and since in this case the family settlement is not registered, hence on the basis of such document, no right can be said to have devolved on the predecessor-in-interest of the petitioner. 21. However, if by an instrument or document, terms of family arrangement are reduced in writing, registration would be necessary and since in this case the family settlement is not registered, hence on the basis of such document, no right can be said to have devolved on the predecessor-in-interest of the petitioner. 21. He has also raised an issue relating to the very maintainability of the writ petition on the ground that ordinarily the orders passed in mutation proceedings are not amenable to challenge in writ jurisdiction under Article 226 of the Constitution of India for the reason that in mutation proceedings rights and titles between the parties are not decided and such mutation orders are always subject to declaration of rights in a declaratory suit. Sri M.A.Khan, Senior Advocate appearing for the respondent no.4 has also submitted that the right being claimed by the petitioner on the basis of oral sale deed is not tenable for the reason that there cannot be any oral sale in absence of a written document/instrument. He has further stated that in the sale deed executed on 06.04.2017, there is a recital of delivery of possession in favour of respondent no.4 by the recorded tenure holder and as such the finding based on such recital made in the sale deed in respect of possession is sufficient for claiming mutation. He has also submitted that even if the orders passed by the courts below in mutation proceedings are bad, since the petitioner cannot be said to have perfected his right or the right of his predecessor-in-interest on the basis of inadmissible family settlement and on the basis of oral sale, he cannot get any right and thus, his objection to mutation sought by the respondent no.4 is also not tenable. It has further been submitted that validity of the sale deed executed in favour of respondent no.4 cannot be decided in mutation proceedings and since the petitioner cannot be said to have perfected his rights, it will be futile to remit the matter to the Naib Tehsildar/Tehsildar for decision afresh. Stressing that the writ petition against the order passed on mutation proceedings is not maintainable, Sri Mohd. Arif Khan, Senior Advocate appearing for the respondent No.4 has cited the judgments in the cases of Deen Bandhu Vs. Additional Commissioner, Devi Patan and others , reported in [ 2013(31) LCD 110 and Jagdish Prasad Gaur Vs. Stressing that the writ petition against the order passed on mutation proceedings is not maintainable, Sri Mohd. Arif Khan, Senior Advocate appearing for the respondent No.4 has cited the judgments in the cases of Deen Bandhu Vs. Additional Commissioner, Devi Patan and others , reported in [ 2013(31) LCD 110 and Jagdish Prasad Gaur Vs. Chancellor, Meerut University, Rajbhawan, Lucknow , reported in 1995(13) LCD 722. 22. Dr. L.P. Misra, on the other hand, has stated that the writ petition against the order passed on mutation proceedings is maintainable as held by this Court in the cases of Lal Bachan Vs. Board of Revenue, U.P., Lucknow and others , reported in [ 2002(93) R.D. 6 ], Puran Singh Vs. Board of Revenue, U.P., Allahabad and others , reported in [2004(96) RD 98] , judgment dated 30.03.2017, passed by this Court in the case of Bhagwandeen Vs. Addl. Commissioner Judicial Division, Lucknow and others, Writ Petition No. 6503(MS) of 2017 and judgment dated 09.02.2017, passed by this Court in the case of Rudra Mani Shukla Vs. Subhash Kumar and 2 others, Writ Petition No. 262(MS) of 2017. 23. Having heard the learned counsel representing the parties and having perused the judgments cited above, I am of the opinion that in certain circumstances, as has been held in the case of Lal Bachan (supra) , the writ petition is maintainable even against the orders passed in mutation proceedings. It has been held in the case of Lal Bachan (supra) that an order passed without jurisdiction can be challenged in writ jurisdiction despite availability of an alternative remedy and that the writ petition can be entertained in case where substantial injustice has been suffered by a party. In the said case, this Court has held that the writ petition arising out of mutation proceedings cannot be held to be non- maintainable, but ordinarily this Court does not entertain such writ petition for the reason that the parties have a right to get the title adjudicated by instituting regular suit and that the orders passed in mutation proceedings are summary in nature. 24. This Court in its judgment dated 09.02.2017 delivered in the case of Rudra Mani Shukla (supra) has held that the mutation proceedings are important proceedings as entries based thereon in the record of rights are presumed to be correct and practically all transactions are made after perusing such entries. 24. This Court in its judgment dated 09.02.2017 delivered in the case of Rudra Mani Shukla (supra) has held that the mutation proceedings are important proceedings as entries based thereon in the record of rights are presumed to be correct and practically all transactions are made after perusing such entries. It has further been observed in the said judgment that it is easy to say that an aggrieved party may establish his title in regular proceedings but the fact is that such proceedings go on for years together, therefore, judicious application of mind in mutation proceedings, even though they are summary proceedings, can at times prevent injustice and prolonged litigation. 25. Observing the aforesaid, the writ petition was entertained in the case of Rudra Mani Shukla (supra) and was allowed by remanding the matter to the court of Tehsildar. The relevant observations made in the case of Rudra Mani Shukla (supra) are as under: “Mutation proceedings are important proceedings as, entries based thereon in the record of rights (Khatauni) are presumed to be correct under Section 35 of the Land Revenue Act 1901 as also Section 40 of the U.P. Revenue Code 2006 and practically all transaction are made after perusing such entries. No doubt in matters of sale the purchaser is required to make due inquiry with diligence as to the real owner and any dispute in respect thereof but if the name is recorded in the revenue records, sale transaction etc., are easily made. True it is that Revenue records are not documents of title by themselves and are for purposes of realization of revenue but in view of the presumption attached to them especially in view of the contents of Khatauni as prescribed in Section 31 of the Revenue Code, 2006 their importance in practical terms hardly needs to be emphasized. It is easy to say that an aggrieved party may establish his title in regular proceedings but the fact is that such proceedings go on for years together, therefore, judicious application of mind in mutation proceedings, even though they are summary proceedings, can at times prevent injustice and prolonged litigation. This is not to suggest that interference in such matters should be made in a routine manner”. 26. This is not to suggest that interference in such matters should be made in a routine manner”. 26. What persuades this Court to entertain this writ petition, though the same has been preferred against the orders passed in mutation case, is the fact that in terms of the provisions contained in Sections 34 and 35 of the U.P. Revenue Code, 2006, the finding of ‘obtaining possession’ is necessarily to be returned by the court concerned, however, ignoring the said provision since the impugned orders have been passed, without recording a finding in respect of obtaining possession, I am inclined to entertain this writ petition in the peculiar facts and circumstances of the case and accordingly reject the objection raised by the learned Senior Advocate appearing on behalf of the respondent No.4 regarding maintainability of the writ petition. 27. As observed above, the mutation proceedings are drawn under Section 34 read with Section 35 of the U.P. Revenue Code, 2006 which are reproduced herein under: “34 Duty to report in cases of transfer.-(1) Every person obtaining possession of any land by transfer, other than a transfer referred to in sub-section (3) of section 33 shall report such transfer, in the manner prescribed, to the Tahsildar of the Tahsil in which the land is situate. Explanation. - For the purposes of this section, the word ‘transfer’ includes a family settlement. (2) State Government may fix a scale of fees for getting entry recorded in the record of rights on the basis of transfer. A fee in respect of any such entry shall be payable by the person in whose favour the entry is to be made. 35. Mutation in cases of succession or transfer.-(1) On the receipt of a report under section 33 or section 34, or upon facts otherwise coming to his knowledge, the Tahsildar shall issue a proclamation and make such inquiry as appears to be necessary and- (a) if the case is not disputed, he shall direct the record of rights (Khatauni) to be amended accordingly; and (b) (deleted); (c) if the case is disputed, he shall decide the dispute and direct, if necessary, the record of rights (khatauni) to be amended accordingly. (2) Any person aggrieved by an order of the Tahsildar under sub-section (1) may prefer an appeal to the Sub- Divisional Officer within a period of thirty days from the date of such order”. 28. (2) Any person aggrieved by an order of the Tahsildar under sub-section (1) may prefer an appeal to the Sub- Divisional Officer within a period of thirty days from the date of such order”. 28. The provisions of Section 34 of the U.P. Revenue Code, 2006 open with the phrase ‘Every person obtaining possession of any land by transfer’. This provision of Section 34 can be put in service once a person obtains possession of land by transfer. In order to claim mutation, two ingredients need to be established and finding in respect thereof are to be recorded by the court where mutation proceedings are brought, namely, ‘obtaining possession’ and ‘transfer’. Thus, the mutation can be claimed on the basis of valid possession through valid transfer. No doubt, the proceedings drawn for mutation are summary proceedings and they do not decide right and title between the parties and are drawn for fiscal purposes only, however, in absence of finding in respect of obtaining valid possession over any land by valid transfer, in my considered opinion, even mutation order cannot be passed. 29. Lengthy arguments have been advanced by the learned counsel appearing for the respective parties as to the nature of possession which needs to be inquired into in the mutation proceedings. Heavy reliance has been placed by both the parties on a Full Bench decision of the Board of Revenue in the case of Dassiyan Vs. Smt. Sukhan, reported in 1973 RD 211, wherein Board of Revenue had concluded that the disputes regarding entries in the annual registers shall be decided on the basis of actual or constructive possession based on lawful succession or transfer. 30. The mutation proceedings in respect of agricultural land which are presently governed by the provisions of Sections 34 and 35 of the U.P. Revenue Code, 2006, were earlier governed by Sections 34 and 35 of the U.P. Land Revenue Act. The provision of Section 34 of the U.P. Revenue Code, 2006 and Section 35 of the U.P. Revenue Act are in pari materia. In both these provisions, the emphasis, in my considered opinion, is on ‘obtaining possession by transfer’. 31. From a perusal of the aforesaid provision, I have no hesitation to observe that the application for mutation would not lie unless the person obtains possession over the land. In both these provisions, the emphasis, in my considered opinion, is on ‘obtaining possession by transfer’. 31. From a perusal of the aforesaid provision, I have no hesitation to observe that the application for mutation would not lie unless the person obtains possession over the land. The mutation proceedings are to be decided on the basis of possession which, of course, has to be valid possession and as such the court ordering mutation is required to give a finding in relation to possession and unless the court is able to satisfy itself as to the possession of any party, the court would not undertake to ascertain by a summary enquiry as to who is the person best entitled to it. However, the possession must be a legal possession, that is to say the possession under law. The possession here would mean the possession based on valid succession or valid transfer and not that of a rank trespasser. 32. If the orders passed by the courts below in this case are examined on the touchstone of the aforesaid proposition of law, what is found is that except for the recitals made in the sale deed dated 06.04.2017 about the possession having been delivered by the respondent Nos. 8, 9, 10 and 11 to the respondent no.4, there is nothing on record to suggest that the possession was handed over to the respondent no.4. 33. To the contrary, there appears to be ample evidence which suggest that the possession has all along been with the petitioner. However, it is not for this Court to weigh the respective evidence available on record for determining as to which is the parties which is in possession over the land over which the mutation has been sought by respondent no.4. 34. Learned counsel representing the respective parties have advanced long arguments claiming that either the petitioner or respondent no.4 has been in possession. However, what is noticeable in this case is that the finding in favour of respondent no.4 having obtained possession over the land in question is missing in the orders impugned herein. The overwhelming evidence available in favour of the petitioner regarding petitioner being in possession, does not appear to have been considered and discussed by the Naib Tehsildar. However, what is noticeable in this case is that the finding in favour of respondent no.4 having obtained possession over the land in question is missing in the orders impugned herein. The overwhelming evidence available in favour of the petitioner regarding petitioner being in possession, does not appear to have been considered and discussed by the Naib Tehsildar. Learned counsel for the petitioner has drawn attention of this Court to various such evidence, namely, the statement made by Vimarsh Kumar Rastogi-respondent no.10 in his written statement filed in Regular Suit No. 23 of 2016, where in Para-24, he appears to have admitted that a Marriage Lawn was developed by the petitioner not only on plot no. 901, but also on plot no. 902. He has also referred to the Commissioner’s report dated 15.01.2016 filed in Regular Suit No. 23 of 2016 which also mentions existence and running of Marriage Lawn and certain constructions thereon. He has also stated that in partition suit filed under Section 176 of the U.P. Z.A. & L.R. Act, an affidavit was filed by Pratap Chandra Rastogi, who is the father of respondent no.10, in paragraph-8 whereof, Pratap Chandra Rastogi has admitted that on 13.02.1984, Lal Chand Rastogi sold khasra plot no. 901 in favour of Lal Chand Arora and on the basis of family settlement, khasra plot no. 902 was also sold in favour of Lal Chand Arora. He has, thus, stated that all these evidences go on to show that respondent no.4 did not obtain possession over the land in dispute and as such in absence of obtaining possession, the mutation could not be claimed by the respondent no.4, merely on account of recitals of possession being handed over, made in the sale deed executed on 06.04.2017. 35. Learned counsel representing the respective parties have made further argument about the validity/invalidity and admissibility/inadmissibility of the family settlement or family arrangement, dated 12.11.1978 and about oral sale said to have taken place on 16.12.1985. Since the titles and rights between the parties are not to be decided, I refrain from making any observation in this regard on these submissions made by the learned counsel representing the respective parties. 36. This Court in the case of Rudra Mani Shukla (supra) has held in detail the requirement of recording finding of obtaining possession for deciding the mutation proceedings. 36. This Court in the case of Rudra Mani Shukla (supra) has held in detail the requirement of recording finding of obtaining possession for deciding the mutation proceedings. The relevant extracts of the said judgment in this regard are as follows: “……….. The procedure to be followed in such mutation proceedings has been laid down in Rule A-366 to A-384, of Part 3 of Chapter A-XXXVII of the U.P. Revenue Court Manual. Rule A-367 deals with the report to be submitted to the Tehsildar under Section 34 and its requisite contents. As per Rule A-372 no report shall be deemed to be invalid merely for reason of some of the particulars required to be specified having been omitted or having been incorrectly stated. In such cases the Tehsildar shall ascertain from the person making the report or form any other source considered convenient, such particulars as may be necessary to complete or correct the report. As per Rule A-373 upon the receipt of such a report under section 34 or on facts otherwise coming to his knowledge the Tehsildar shall cause a proclamation to be issued free of charge in the manner provided in Section 197 of the Land Revenue Act, notifying that proceedings for mutation of names have been started. This rule further provides that "without waiting for the issue of proclamation, the Tehsildar shall make necessary enquiries about the existing entries in the relevant papers and other details pertaining to the land in question from the office of the Registrar Kanungo and from the Halqa Lekhpal also, if necessary". Rule A-374 deals with the proclamation and its contents. Rule A-375 which is relevant for present case says that "the proclamation shall also require the person who has obtained possession also any other persons who may wish to file objection to attend on the date to be specified in the proclamation and for producing such evidence as may be in his possession in support of his objection". As this court is concerned with the maintainability of the objection in the proceedings under Section 34 of the Act, 1901 for which orders were reserved on 26.12.2016 and ultimately pronounced on 02.01.2017 the aforesaid Rule A- 375 makes it very clear that any other person who may wish to file objection can do so and he can also produce evidence in support of his objection. In the present case on a reading of objections filed by the petitioner and considering the provisions contained in Rule A-375, it cannot be said that objection on his part was not maintainable. Moreover the order having been reserved for pronouncement on maintainability of the objection, the issue which should have been decided was such maintainability, instead, the Tehsildar decided the merits of the controversy itself as also the validity of the objections on merits and ordered the mutation of the name of respondent no.1 in place of respondent no.2. This in the opinion of this court was not the correct procedure adopted by him. There was no necessity for such a hurry in the matter. No doubt the rule speaks of such enquiry on his part as may be necessary but even in matters where a discretion is vested it should be used judiciously. Moreover, in this context Rule A-379 which pertains to proceedings under Section 34 based on ''transfer' is relevant as it says that in all cases of transfer where an objection is filed under Rule A-375, the Tehsildar shall record necessary evidence adduced by the parties. He may also ask for evidence about it, if he has reasons to believe that declaration made in the affidavit under Rule A-376 is not sufficient and in order. On completion of the enquiry, he shall submit a report along with connected file to the Collector after having given a date to the parties to appear in that Court. The Collector may make such further enquiry as he may consider necessary and he shall dispose of the matter after giving an opportunity to the parties to be heard. This part of the rule requiring the Tehsildar to send a report to the Collector is no longer in operation, though still on statute book, as, under the substantive provision contained in Sections 34 and 35 etc. it is the Tehsildar who is competent to pass a final order in such mutation proceedings but nevertheless the use of word "on completion of the enquiry" are important as they are indicative of an enquiry to be conducted by the Tehsildar in terms mentioned in Rule A-379 read with section 35 and 40, as the case may be” 37. it is the Tehsildar who is competent to pass a final order in such mutation proceedings but nevertheless the use of word "on completion of the enquiry" are important as they are indicative of an enquiry to be conducted by the Tehsildar in terms mentioned in Rule A-379 read with section 35 and 40, as the case may be” 37. In view of the discussions made above in this case, I find that the learned courts below have not considered the matter relating to possession appropriately. In absence thereof, the order of mutation passed in favour of the respondent no.4 cannot be permitted to be sustained. 38. Resultantly, the writ petition is allowed . The order dated30.01.2018, passed by the Naib Tehsildar, order dated 25.04.2018, passed by the Sub-Divisional Officer and the order dated 18.09.2018, passed by the Board of Revenue, as are contained in Annexure Nos. 1, 2 and 3, appended to the writ petition, are hereby quashed. The matter is remitted to the court of Naib Tehsildar/Tehsildar concerned to decide the mutation case afresh after giving appropriate opportunity of putting forth their respective cases and adducing evidence, to the parties. The Naib Tehsildar/Tehsildar is also directed to expedite the proceedings of the mutation case and conclude the same within a period of three months from the date of production of certified copy of this order. 39. It is further directed that the parties to the proceedings before the court of Naib Tehsildar/Tehsildar shall not seek any unnecessary adjournments and adjournment, if prayed for, will be permissible to be granted only in exceptional circumstances. 40. Costs made easy.