Writ-C No. - 8548 of 2025 Lakshmi Devi Vs. State of U.P. and 4 others Neutral Citation No. - 2025:AHC:119856 Court No. - 34 Case :- WRIT - C No. - 8548 of 2025 Petitioner :- Lakshmi Devi Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Dhananjai Rai,Vibhu Rai Counsel for Respondent :- C.S.C.,Rituvendra Singh Nagvanshi with Case :- WRIT - C No. - 8559 of 2025 Petitioner :- Lakshmi Devi Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Dhananjai Rai,Vibhu Rai Counsel for Respondent :- C.S.C.,Rituvendra Singh Nagvanshi Hon'ble Kshitij Shailendra,J. 1. Heard Shri Vibhu Rai, learned counsel for the petitioner in both the cases, learned Standing Counsel for the State-respondents and Shri R.C. Singh, learned Senior Counsel, assisted by Shri Rituvendra Singh Nagvanshi, for the private respondents. 2. These two matters arise out of mutation proceedings under Section 34 of the U.P. Revenue Code, 2006 (in short 'the Code, 2006'). 3. One Jitendra Singh (husband of the petitioner-Lakshmi Devi) was bhumidhar of some agricultural land. He died on 18.01.2005. Pursuant to his death, name of the petitioner was mutated in the revenue records on 07.02.2005. After 10 years, on 03.12.2015, the respondent no. 5, i.e., the real sister of deceased husband of the petitioner, i.e., the petitioner's Nanad, filed an application for mutation under Section 34 of the Code, 2006 seeking expunging of the name of the petitioner from the revenue records with a prayer to enter her name on the plea that the petitioner, Writ-C No. - 8548 of 2025 Lakshmi Devi Vs. State of U.P. and 4 others after death of her husband, had performed re-marriage with one Jagbir Singh in the year 2006 and, therefore, she lost title in the land. 4. The application was contested by the petitioner denying performance of re-marriage. The Tehsildar, by an order dated 01.12.2023, allowed the application and directed expunging of the name of the petitioner and to enter name of respondent no. 5. 5. Challenging the order dated 01.12.2023, the petitioner filed an appeal under Section 35(2) of the Code, 2006. The Sub- Divisional Officer, by an order dated 08.04.2024, allowed the application and, after framing four points, remanded the matter to the Tehsildar for fresh consideration. 6. The remand order was challenged by the respondent no. 5 by filing revision, which has been allowed by the Additional Commissioner by order dated 03.03.2025 upholding the order dated 01.12.2023. 7. Challenging the revisional order, learned counsel for the petitioner submits that the dispute was with respect to performance of second marriage by the petitioner, however, there being no cogent evidence on record, the appellate authority had framed four points while remanding the matter to the Tehsildar. Submission is that first point was with regard to 10 years delay in moving the application; second point was filing of affidavits by three persons to prove re-marriage but recording a finding by the Tehsildar only on the basis of cross-examination of one witness; third point was that cross-examination of Beena Devi was done but the same was not certified by the Presiding Officer concerned and, lastly, as to under 2 of 8 Writ-C No. - 8548 of 2025 Lakshmi Devi Vs. State of U.P. and 4 others which category relationship between the petitioner and Jagbir Singh would fall, that is to say as to whether it would be treated as re- marriage or a live-in-relationship. 8. Submission is that the record has been misread by the revisional authority as well as Tehsildar and the remand order has been illegally interfered with by referring to stand of one Durg Singh, i.e. father of Jagbir Singh and conclusion has been drawn regarding re-marriage of the petitioner. The emphasis is on the procedure adopted by the Tehsildar while deciding the mutation matter and it is urged that, in the circumstances, remand order should not have been interfered with by the revisional authority. 9. The submissions made have been vehemently opposed by Shri R.C. Singh, learned Senior Advocate and it is urged that there being cogent evidence on record to establish re-marriage by the petitioner, no contrary view can be taken by this Court. Reliance has been placed upon an alleged statement of the petitioner recorded on 26.02.2016 (Annexure No. CA-3 to the counter affidavit) and it is submitted that once she admitted in her statement that she had performed re-marriage with Jagbir Singh and that three children had born out of the said wedlock, the same, in itself, is sufficient to dislodge her claim. 10. It is also urged that father of Jagbir Singh, i.e. father-in-law of the petitioner, had himself filed three mutation cases in which an order was passed on 25.04.2017 recording the contention of Durg Singh regarding re-marriage in between his son Jagbir Singh and the petitioner. It is further submitted that in the objections filed before the Tehsildar also, the petitioner had admitted performance 3 of 8 Writ-C No. - 8548 of 2025 Lakshmi Devi Vs. State of U.P. and 4 others of re-marriage. Reliance has also been placed upon an inquiry conducted by some revenue officer wherein statements of Durg Singh, Gajraj Singh, Jagbir Singh and Anil Kumar were referred to as regards performance of re-marriage by the petitioner. 11. Though Shri Singh has much emphasized on the statement of petitioner annexed as Annexure No. CA-3 to the counter affidavit and it is argued that she had admitted her re-marriage with Jagbir Singh and also birth of three children from the said wedlock, a stand has been taken in the rejoinder affidavit seriously disputing the genuineness of the said statement. It is stated in the rejoinder affidavit that Annexure No. CA-3 is a manipulated document and it is also argued that the said statement was not recorded in any proceedings, particularly in the proceedings giving rise to the present case. Further submission of the petitioner’s counsel is that no such statement was ever made by the petitioner and there is no reference of the same in any of the three orders passed by the authorities. 12. Having heard learned counsel for the parties, I find that the Tehsildar had based his order mainly on two documents, one being objections filed by the petitioner and the other being stand taken by Durg Singh in mutation proceedings instituted by him. A finding has been recorded by Tehsildar that since the petitioner had admitted in her objections that she had performed re-marriage, she would stand divested from the property. 13. The Court finds that, in the objections filed by the petitioner, there was clear denial by her regarding re-marriage. From paragraph no. 6 of the objections, it is clear that the reference was 4 of 8 Writ-C No. - 8548 of 2025 Lakshmi Devi Vs. State of U.P. and 4 others made to the contents of the application filed by the respondent no. 5 and the same was not an admission on the part of the petitioner. In the same paragraph, the petitioner had denied performance of re- marriage with Jagbir Singh and also birth of children out of the said relationship. Therefore, the Tehsildar had clearly misread the objections and treated reproduction of contents of application filed by respondent no. 5 as an admission on the part of the petitioner. 14. So far as the stand of Durg Singh is concerned, it is not disputed that Durg Singh is alive and was not produced as a witness in the present proceedings. The stand of Durg Singh, noted in some mutation applications which were not pressed by him on 25.04.2017, as regards relationship between the petitioner and his son, could not be utilized by the Tehsildar in the present proceedings. 15. The principle of law contained under Section 33 of the Indian Evidence Act is applicable in the present case and it is well settled that if a person is alive, his testimony in other proceedings cannot be utilized in subsequent proceedings without calling upon him as a witness in subsequent proceedings. In the present case, testimony of Durg Singh was not even recorded in mutation proceedings and it appears that alleged performance of re-marriage was only mentioned in some application without proving the same by evidence. 16. In this regard though Shri Singh has submitted that these are summary proceedings and, therefore, strict provisions of trial of civil suit are not applicable, the Court is not inclined to accept the said submission in view of the fact that in order to establish her 5 of 8 Writ-C No. - 8548 of 2025 Lakshmi Devi Vs. State of U.P. and 4 others claim, the respondent no. 5 had produced three witnesses, namely, Beena Devi, Anil Kumar and Sunita Devi. Though affidavits of these witnesses were filed, however, there is nothing on record to indicate that, at any point of time, they were cross examined. It appears that only Beena Devi was cross-examined but the First Appellate Authority has recorded that her cross examination was not certified by the Presiding Officer. 17. In view thereof, this Court is of the opinion that the remand directed by the Appellate Authority was mainly on the procedural aspects and it was ordered for the purposes of getting a lawful decision by the Tehsildar based upon admissible and reliable evidence. 18. As far as the submission of Shri Singh that a third case of live-in-relationship was carved out by the Appellate Authority, the said aspect can also be dealt with by the Tehsildar while recording a finding as regards Point No. 4 framed by the Appellate Authority. 19. Since the issue involved in the case is as to whether there was a re-marriage between the petitioner and Jagbir Singh, though the proceedings are summary in nature, nevertheless, once a dispute of this nature is raised, the same has to be decided based upon admissible and reliable evidence and not merely on the basis of contents of applications etc. 20. In view of the aforesaid discussion and without recording any finding on the matrimonial or any other relationship in between the petitioner and Jagbir Singh, this Court finds that the procedural review ordered by the First Appellate Authority does not suffer 6 of 8 Writ-C No. - 8548 of 2025 Lakshmi Devi Vs. State of U.P. and 4 others from any illegality. The decision of the Revisional Authority recording a conclusive finding based upon incomplete evidence is not sustainable. 21. Consequently, the writ petitions are allowed. The impugned orders dated 03.03.2025 passed by Additional Commissioner (Administration), Aligarh Division, Aligarh in Case No. 536 of 2024 (Computerized Case No. C202418000000536) (Poonam Devi Vs. Lakshmi Devi and others) and Case No. 537 of 2024 (Computerized Case No. C202418000000537) (Poonam Devi Vs. Lakshmi Devi and others) are hereby quashed. 22. The original applications under Section 34 of the Code, 2006 shall be restored to its original number and status before the concerned Tehsildar within a period of three weeks from the date a copy of this order is filed before him. 23. The Tehsildar shall decide the matter on the four points framed by the First Appellate Authority strictly in accordance with law and after carefully perusing the record of proceedings and after providing full opportunity of hearing to the parties concerned within a period of three months from the date of revival of proceedings. 24. In view of interim order passed in the writ petitions restraining alienation by both parties, it is provided that till the matter is decided by the Tehsildar, no third party rights shall be created in respect of the property in dispute, by either of the parties. 25. Both the learned counsel for the parties have given undertaking before this Court that the parties will not seek any adjournment in the proceedings and they will ensure that disposal 7 of 8 Writ-C No. - 8548 of 2025 Lakshmi Devi Vs. State of U.P. and 4 others of the case will not go beyond 90 days from the date of revival of proceedings. Order Date :- 22.7.2025 AKShukla/- 8 of 8 Digitally signed by :- ANIL KUMAR SHUKLA High Court of Judicature at Allahabad