- (1.) DEVI Prasad Singh, J. The present controversy relates to a proceeding under Section 34 of the Land Revenue Act. Petitioner after loosing battle from the Court of Nayab Tehsildar to Board of Revenue had approached this Court with the prayer that order passed by the opposite parties No. 1 to 4 relating to the mutation of name in favour of one Sheo Ram may be set aside. The recorded tenure-holder of the disputed gata No. 245 was one Smt. Ram Raji W/o late Shri Ram Piyarey. After death of Smt. Ram Raji, the land in question was recorded in the name of Smt. Pangula being sole heir and successor as well as the daughter of Smt. Ram Raji. On 9th May, 1980, Smt. Pangula died leaving her minor son Shri Sheo Ram and husband Shri Sheo Nath. After death of Smt. Pangula, land in question was recorded in the name of minor son Shri Sheo Ram under the guardianship of Shri Sheo Nath.
(2.) THE petitioner Ram Baran moved an application under Section 34 of the Land Revenue Act claiming right and title over the land in question in place of late Smt. Ram Raji. Accordingly, he had prayed that his name may be recorded in the mutation proceedings initiated under Section 34 of the Land Revenue Act. THE application moved by the petitioner Ram Baran was rejected by Nayab Tehsildar, Dhanyapur, District Gonda. Appeal was also dismissed by the Assistant Collector No. 3, Gonda. A revision was preferred by the petitioner against order passed by the Assistant Collector was also dismissed by Additional Commissioner (Legal) Faizabad Division, Faizabad and the Board of Revenue. Copy of the impugned orders dated 9-12-1986, 4-5-1995, 17-8-1993 and 11-11- 2000 respectively, have been filed as Annexures-1 to 4 to the writ petition. While adjudicating the dispute finally, the Board of Revenue had placed reliance upon the judgment of this Court decided on 18-2-1981 in a Writ Petition No. 324 of 1973, Ram Baran v. D. D. C. While adjudicating the controversy it has been held by Board of Revenue that since right and titled of the Smt. Ram Raji was settled in consolidation proceedings and finally by the High Court while deciding the Writ Petition No. 324 of 1973, Smt. Ram Raji shall deem to be recorded tenure holder and Pangula being her daughter was rightly recorded during mutation proceedings, and after death of Smt. Pangula, the name of Shri Sheo Ram, her natural heir and successor. Accordingly the order passed by the Superior Kanoongo on 9th May, 1980 to record the name of Shri Sheo Ram being heir and successor of Pangula in the revenue record does not suffer from any impropriety or illegality. While appearing as amicus curiae (appointed by this Court) on behalf of petitioner Shri R. S. Pandey learned Counsel had submitted that Shri Sheo Nath had transferred certain portion of land without obtaining permission from District Judge, hence, the entry in the name of Sheo Ram through the guardian Sheo Nath was not sustainable under law. Under the Guardians and Wards Act, land could not have been transferred by Shri Sheo Nath without prior permission from the District Judge, concerned. However, during the course of argument Shri R. S. Pandey who appeared as amicus curiae had fairly submitted that earlier in view of law settled by Apex Court in a case in Panni Lal v. Rajinder Singh and Anr. , 1993 (22) ALR 1, the transfer of land or property by the guardian of a minor shall be void in case it was done without prior permission of District Judge. In view of provision contained in Section 8 of the Hindu Minority and Guardianship Act, the legal guardian have got no right to alienate minor's immovable property without the prior permission of District Judge of the District concerned. But from the subsequent judgment in Vishwambhar and Ors. v. Laxminarayan (dead) through LRs. and Anr. , 2001 (2) JCLR 776 (SC); 2001 (44) ALR 569, followed by a judgment in Nangali Amma Bhavani Amma v. Gopalkrishnan Nair and Ors. , 2005 (1) JCLR 382 (SC); (2004) 8 SCC 785, the Apex Court held that the suit can be filed by minor against the alienation of property done in violation of Section 8 of the Hindu Minority and Guardianship Act. Any property alienated in violation of Section 8 of the Act shall be voidable and not void. For convenience relevant portion from Nangali Amma Bhavani Amma's case (supra) is reproduced as under: " (7) But the learned Counsel for the appellant is right in contending that the High Court had misconstrued the provisions of Section 8 of the Act. Section 8 (1) empowers the natural guardian of a Hindu minor to do all acts which are necessary or reasonable and proper for the benefit of a minor or for the realisation, protection or benefit of the minor" estate subject to two exceptions of which we may only note the exception carved out in sub-section (2) of Section 8. Section 8 (2) provides that the natural guardian shall not without the previous permission of the Court, inter alia, transfer by way of a sale any part of the immovable property of a minor. The effect, of violation of this provision has been provided for in the Section itself under sub-section (3 ). This sub-section reads: "8 (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him. " (8) In view of the express language used, it is clear that the transaction entered into by the natural guardian in contravention of sub-section (2) was not void but merely voidable at the instance of the minor. To hold that the transaction in violation of Section 8 (2) is void would not only be contrary to the plain words of the statute but would also deprive the minor of the right to affirm or ratify the transaction upon attaining majority. This Court in Vishwambhar v. Laxminarayan, has also held that such transactions are not void but merely voidable. It was also held that a suit must be filed by a minor in order to avoid the transaction within the period prescribed under Article 60 of the Limitation Act. The High Court did not consider the issue of limitation at all in view of its finding on the effect of a violation of Section 8 (2) of the Act. As the conclusion of the High Court on this aspect of matter is unsustainable, the impugned decision must be set aside. " Admittedly, Shri Sheo Ram had attained majority. Accordingly he has got right to file a suit for cancellation of sale-deed, which was executed by his guardian in violation of provision contained in Section 8 of the Hindu Minority and Guardianship Act, 1956. However, it has been submitted by Shri R. S. Pandey, that Shri Sheo Ram had already filed a regular suit No. 1266 of 1991 in a Court of competent jurisdiction, which is pending for adjudication. It appears that the suit was filed in the year 1991, but the same is still pending in the Trial Court.
(3.) IN view of discussion hereinabove since the right and title of Smt. Pangula was affirmed in consolidation proceedings and up to the level of High Court the impugned orders passed by the Court/authorities below does not seem to suffer from any impropriety or illegality. A right which has been adjudicated by the Competent Court is not open to review in a summary proceedings like a mutation proceedings arising in pursuance to provision contained in Section 34 of the Land Revenue Act. The entry recorded in pursuance to consolidation proceedings attains finality. Since the right of the Smt. Ram Raji was settled up to High Court in a proceeding arisen under the Consolidation of Holdings Act, it is not open for judicial review in a summary proceedings, under Section 34 of the Land Revenue Act. Even if, Shri Sheo Nath had transferred certain land in violation of Section 8 of the Hindu Minority of Guardianship Act, it shall not create a ground to set aside the entries made in the revenue record in pursuance to the summary mutation proceedings. The right of vendee who has purchased the land from Shri Sheo Nath in alleged violation of Section 8 of the Hindu Minority and Guardianship Act can be very well challenged in competent Civil Court having jurisdiction. In case petitioner claims that he has right to raise grievance then such right can also be adjudicated in a competent Civil or Revenue Court in accordance to law. Entry recorded in a mutation proceedings can always be subjected to a proceeding under Section 229-B/209 of the U. P. Z. A. and L. R. Act or through a suit in the competent Civil Court. Accordingly option is open to the petitioner to approach the competent Court for redressal of his grievance in accordance to law. The finding of fact recorded by the four Courts including the Board of Revenue is a concurrent finding of fact and is not open for judicial review under Article 227 of the Constitution of India moreso on account of alternative remedy available to the petitioner.;