Madhya Pradesh High Court
Hafizan Bee vs Abdul Aziz Khan on 14 August, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:18727
1 WP-15407-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE AMIT SETH
ON THE 14th OF AUGUST, 2025
WRIT PETITION No. 15407 of 2025
HAFIZAN BEE AND OTHERS
Versus
ABDUL AZIZ KHAN
Appearance:
Shri Sameer Kumar Shrivastava - Advocate for petitioners.
Shri Siddharth Sharma - Advocate for the respondent.
ORDER
1. With the consent of the parties, the matter is finally heard.
2. The instant petition was earlier filed as M.P.No.27/2022. However, vide order dated 17.04.2025, the same was permitted to be converted into a writ petition and was thereafter registered as W.P.No.15407/2025.
3. The instant writ petition takes exception to the order dated 16.11.2021 passed by the Additional Commissioner, Bhopal Division, Bhopal, whereby, the second appeal preferred by the respondent under Section 44 (2) of the Madhya Pradesh Land Revenue Code, 1959, (hereinafter referred to as "the Code of 1959"), challenging the order dated 21.02.2013 passed by the Sub-Divisional Officer, Lateri, District Vidisha, rejecting the first appeal preferred by the respondent, has been allowed, and the mutation order dated 15.03.1999 passed by the Naib-Tahsildar, Circle No.2, Tahsil Lateri, District Vidisha in Revenue Case No.22/A-6/1998-99 Signature Not Verified Signed by: ANAND KUMAR Signing time: 26-08-2025 12:08:41 NEUTRAL CITATION NO. 2025:MPHC-GWL:18727 2 WP-15407-2025 has been set aside, and the Tahsildar has been directed to update the revenue records accordingly.
4 . The briefs facts leading to filing of the instant writ petition are as follows :-
5. The petitioners herein, on the strength of an oral Hibbanama, moved an application under Section 109/110 of the Code of 1959, seeking mutation of their names in respect of land bearing Khasra No.853, admeasuring 2.415 hectares, contending that the petitioners have a half share in the said land. However, the remaining half of the share has been gifted to them by the respondent through an oral Hibbanama. Accordingly, the prayer was made for mutating the names of the petitioners in respect of the entire landholding. The Naib-Tahsildar, Circle No.2, Lateri, Vidisha allowed the said application vide order dated 15.03.1999 and directed for recording the names of the petitioners in respect of 1.207 hectares of land forming part of Khasra No.853 total admeasuring 2.415 heactares.
6. The aforesaid order dated 15.03.1999, passed by the Naib-Tahsildar, Circle No.2, Lateri, Vidisha, was subsequently challenged in an appeal by the respondent before the Sub-Divisional Officer, Lateri, District Vidisha, vide application dated 16.08.2011, along with an application under Section 5 of the Limitation Act, seeking condonation of delay in challenging the order dated 15.03.1999. The first appeal preferred by the respondent came to be rejected by the Sub-Divisional Officer vide order dated 21.02.2013, and therefore, a second appeal under Section 44 (2) of the Code of 1959 was thereafter preferred by the respondent before the Additional Commissioner, Signature Not Verified Signed by: ANAND KUMAR Signing time: 26-08-2025 12:08:41 NEUTRAL CITATION NO. 2025:MPHC-GWL:18727 3 WP-15407-2025 Bhopal Division, Bhopal, challenging the order dated 21.02.2013 which has been allowed vide order dated 16.11.2021, and it is this order which is impugned order in the instant writ petition.
7. Learned counsel for the petitioners submits that there was delay of about 12 years on the part of the respondent in challenging the order dated 15.03.1999 before the Sub-Divisional Officer, Lateri. The appeal preferred by the respondent was rejected by the Sub-divisional Officer, Lateri, District Vidisha vide order dated 21.02.2013 on the ground of limitation/delay. In the second appeal preferred by the respondent under Section 44 (2) of the Code of 1959, learned Additional Commissioner, at best, could have condoned the delay; however, learned Additional Commissioner could not have adjudicated the second appeal preferred by the respondent on merits, as there was no adjudication of the first appeal preferred by the respondent on merits by the Sub-Divisional Officer.
8 . By placing reliance on the judgment of this Court in the case of Bhavar Lal and others Vs. Toofan Singh and another , reported in 2023 (1) RN 68, and the judgment of the Division Bench of this Court in W.A. No. 1090/2025, delivered on 01.07.2025, learned counsel for the petitioners submits that the impugned order dated 16.11.2021 passed by the Divisional Commissioner, Bhopal, adjudicating the second appeal on merits, is without jurisdiction. As according to him, in the absence of any adjudication by the First Appellate Authority on merit, the second appellate authority could not have examined the merits of the case. Accordingly, learned counsel for the petitioners prays for setting aside the order dated 16.11.2021 and allowing Signature Not Verified Signed by: ANAND KUMAR Signing time: 26-08-2025 12:08:41 NEUTRAL CITATION NO. 2025:MPHC-GWL:18727 4 WP-15407-2025 the present writ petition.
9. On the other hand, learned counsel for the respondent submits that the aforesaid contention raised by the counsel for the petitioners is factually incorrect and not borne out from the record. It is submitted that the order dated 21.02.2013 passed by the Sub-Divisional Officer (Revenue), Lateri, District Vidisha reveals that the first appeal preferred by the respondent was rejected on merits. Therefore, there was no embargo upon the Additional Commissioner, Gwalior to adjudicate the second appeal preferred by the respondent on merits. That apart, learned counsel for the respondent places reliance on the order dated 04.12.2020 passed by a Coordinate Bench of this Court in M.P.No.3263/2020 between the same parties (Rasool Khan (Dead) through Legal Heirs and Others vs. Abdul Aziz Khan . Learned counsel for the respondent submits that in identical case in respect of different lands, however in respect of similar order of mutation passed by the Tahsildar, Lateri on the basis of alleged Hibbanama, the respondent herein preferred an appeal before the Sub-Divisional Officer after the gap of 12 years which appeal was also rejected by the Sub-Divisional Officer and thereafter, the second appeal preferred by the respondent was allowed by the Additional Commissioner in the similar manner, and the writ petition was thereafter filed before this Court challenging the order dated 16.11.2020 passed by the Additional Commissioner, Bhopal Division, Bhpoal, on similar grounds and in the said miscellaneous petition, the Coordinate Bench of this Court has taken a view that in the first place, the Tahsildar had no authority to pass an order of mutation on the basis of Hibbanama as, he is not the authority Signature Not Verified Signed by: ANAND KUMAR Signing time: 26-08-2025 12:08:41 NEUTRAL CITATION NO. 2025:MPHC-GWL:18727 5 WP-15407-2025 competent to decide the genuineness of Hiba and accordingly, the Coordinate Bench of this Court affirmed the order passed by the Additional Commissioner, Gwalior and rejected the similar contentions as advanced by the counsel for the petitioners herein. He submits that the issue involved in the case is squarely covered by the aforesaid order dated 04.12.2020 passed by the Coordinate Bench of this Court in M.P.No.3263/2020, which has been filed by the respondent alongwith an application for vacation of stay in (unconverted M.P.No.27/2022) which is on record in the instant proceedings as well. Accordingly, learned counsel for the respondent prayed for dismissal of the writ petition.
10. No other point is pressed by the learned counsel appearing for the parties.
11. Heard the learned counsel for the parties and perused the records.
12. The two issues arising for consideration before this Court are as follows:-
(i) Whether the first appeal preferred by the respondent before the Sub-
Divisional Officer has been dismissed vide order dated 21.02.2013 solely on the ground of limitation, or on merits as well ?
(ii) Whether the Tahsildar had any authority to pass an order of mutation on the basis of Hibbanama ?
13. The conclusive paragraph of the order dated 21.02.2013, passed by the Sub-Divisional Officer rejecting the appeal preferred by the respondent, reads as under:-
''अपीलां◌ंट ारा अधीन थ यायालय म उप थत होकर ह ता र कया जाना शपथप पेश करना से प है क नामा तरण उसक जानकार म Signature Not Verified Signed by: ANAND KUMAR Signing time: 26-08-2025 12:08:41 NEUTRAL CITATION NO. 2025:MPHC-GWL:18727 6 WP-15407-2025 हुआ है । 12 वष प ात ् अपील पेश कया जाना थम या अविध बाहय है ।
अत: अपीला ट क अपील िनराधार तथा झूठे त य पर आधा रत होने के कारण खा रज क जाती है । आदे श सुनाया गया। आदे श क ित के साथ अधीन थ यायालय का करण वा पस भेजा जावे।
ब द कायवाह 0 पेशी से खा रज हो दा0 र0स0 हो ।''
14. The perusal of the conclusive paragraph of the order dated 21.02.2013, passed by the first appellate authority (Sub-Divisional Officer, Lateri), reveals that in fact, the appeal was rejected by the Sub-Divisional Officer finding it to be based upon baseless and incorrect grounds. Thought appellate authority, in the penultimate paragraph, states that prmia facie the appeal appears to be time-barred, however the rejection is on merits, as he found no merits in the appeal preferred by the petitioners. In such circumstances, the contention advanced on behalf of the counsel appearing for the petitioners that when the first appeal was rejected on the ground of limitation, the second appellate authority could not have entered into the merits of the case is contrary to the material available on record.
15. This Court is of the considered opinion that the merits of the first appeal were duly examined by the first appellate authority, and the appeal was dismissed finding it to be based upon baseless and incorrect facts. Therefore, there was no embargo upon the second appellate authority to examine the merits of the second appeal preferred by the respondent.
Accordingly, the judgments of this Court in the case of Bhavarlal (Supra) and the Hon'ble Division Bench in W.A.No.1090/2025, will be of no assistance to the petitioner in the given facts and circumstances of the case.
Signature Not Verified Signed by: ANAND KUMAR Signing time: 26-08-2025 12:08:41NEUTRAL CITATION NO. 2025:MPHC-GWL:18727 7 WP-15407-2025
16. That for consideration of the second issue, it is relevant to mention the order dated 04.12.2020 passed by the Coordinate Bench of this Court in M.P.No.3263/2020, filed with an application for vacating stay by the respondent. The relevant paragraph thereof reads as under :-
"The question which is necessary for determination is that whether the revenue authorities are competent to decide the genuineness of ''Hiba'' or not ?
This Court in the case of Dharamveer Singh and Others vs. Rushtum Singh and Others, by order dated 27/08/2019 passed in MP No. 3281 of 2019 has held as under:-
''The Punjab and Haryana High Court in the case of Rajinder Singh And Another Vs. Financial Commissioner as decided on 21st March, 2013 in Civil Writ Petition No.3821/2011 has held that validity of ''Will'' can be decided by the Civil Court which has exclusive domain over such matter and this cannot be decided by the Revenue Courts.
Heard the Learned Counsel for the parties. A similar view has been taken by a Coordinate Bench of this Court by order dated 06/04/2017 passed in Writ Petition No.1820 of 2011 (Akshay Kumar vs. Smt. Ramrati Pandey and Ors.). Thus, it is held that the Revenue Courts have no jurisdiction to decide the rights of any party on the basis of ''Will'' and if somebody wants to claim his/her title over any property, then he/she has to seek declaration from the Civil Court of competent jurisdiction. Accordingly, this Court is of the considered opinion that the Additional Commissioner, Gwalior Division, Gwalior has committed material illegality by restoring back the order passed by Tahsildar, by which the names of the respondents were mutated on the basis of ''Will'' executed by one Sughar Singh.'' Accordingly, order dated 25/04/2019 passed by Additional Commissioner, Gwalior Division, Gwalior in Case No.176/2017-18/ Appeal is hereby set aside, and the order passed by SDO, Gwalior City, District Gwalior in Case No.23/2016-17/Appeal is hereby restored. The application filed by the respondents under Section 109 and 110 of MP Land Revenue Code is hereby rejected.Signature Not Verified Signed by: ANAND KUMAR Signing time: 26-08-2025 12:08:41
NEUTRAL CITATION NO. 2025:MPHC-GWL:18727 8 WP-15407-2025 The respondents are granted liberty that if they so desire, then they can seek declaration from the Civil Court of Competent jurisdiction. With aforesaid observations, this petition is allowed. '' A similar view has been taken by this Court in the case of Kalyan Singh vs. Gangotri Bai and Another , by order dated 21/08/2019 passed in MP No.3460 of 2019. Thus, it is well-established principle of law that the revenue authorities have no jurisdiction to decide the genuineness of the ''Will'' and it is only for the Civil Court to decide that whether the ''Will'' was executed or not ?
Thus, it is clear that the Revenue Courts have no jurisdiction to decide the rights of any party on the basis of ''Will'' and if somebody wants to claim his/her title over any property, then he/she has to seek declaration from the Civil Court of competent jurisdiction.
Similarly, the revenue authorities have no jurisdiction to decide the question of Hiba also. When the respondent No.1 is alive, then why he would gift his property to the petitioners? Thus, viewed from any angle, this Court is of the considered opinion that the Tahsildar adopted the procedure which is unknown to law and without ensuring the appearance of respondent, passed an order of mutation in favour of petitioners. When the order of mutation was passed behind the back of respondent, then SDO, Lateri, District Vidisha should have condoned the delay as the contention of respondent that he was not aware of the order passed by Tahsildar, should have been accepted."
17. In the above petition filed between same parties, it has been held that, Tehsildar had no authority to adjudicate upon the genuineness of Hibbanama, and identical order passed by the Additional Commisisoner has been upheld and petition has been dismissed.
18. The aforesaid proposition of law has been recently reiterated and affirmed by the Full Bench of this Court in the case of Anand Choudhary Vs. State of M.P. and others , reported in 2025 (1) M.P.L.J. 646 , wherein the Full Bench has been pleased to hold as follows in paragraph 75:
Signature Not Verified Signed by: ANAND KUMAR Signing time: 26-08-2025 12:08:41NEUTRAL CITATION NO. 2025:MPHC-GWL:18727 9 WP-15407-2025 "75. In view of the aforesaid discussion, we answer the question referred to us in the negative and hold that Tehsildar cannot reject the application for mutation at threshold on the ground that it is based upon will. However, in view of detailed discussion made by us above, it would be appropriate to summarize our conclusions serially as under:-
1) The Tehsildar while dealing with cases of mutation under sections 109 and 110 of MPLRC between private parties, does not perform judicial or quasi-judicial functions, but only performs administrative functions and therefore, he is not authorized to take any evidence for the purpose of deciding applications for mutation.
2) The Tehsildar can entertain application for mutation on the basis of will. However, it would be obligatory upon him to enquire about the legal heirs of the deceased and notice them in view of provisions of Section 110 (4) of MPLRC.
3) Sections 109 and 110 have to be read along with Section 111 of M.P.L.R.C. and a bare reading of Section 111 of M.P.L.R.C. leads to conclusion that where-ever rights of private parties are involved, then it will only be for the Civil Court to adjudicate the disputed cases. The jurisdiction of the Revenue Officers in the matters of mutation in Revenue records, is merely administrative.
4) A dispute as to validity of will, competence of testator to execute will or existence of two rival wills of testator, or a dispute as to validity of any other non-testamentary registered title document as enumerated in Form-1 of Mutation Rules of 2018 would create a dispute relating to any right which is recorded in the record of rights and arising during either mutation or correction of entry would be such a dispute.
5) In case any dispute as mentioned in para (4) above is raised between private parties, then the Tehsildar would not have any competence to decide the dispute and it would be for the parties to approach the Civil Court to get the dispute adjudicated, in terms of detailed discussion contained in para-74 above. Such matters will either be disposed or kept pending and reported to the Collector in terms of Section 110 (7) M.P.L.R.C. by the Tehsildar, in the manner discussed in detail in this order.
6) The decision in disputed cases as contemplated under Section 110 (4) of M.P.L.R.C. does not give any authority to the Tehsildar to decide such dispute and assume powers of Civil Court by going into the authenticity of will or of any non-testamentary registered title document and that outer time limit has to be read only to determine whether a dispute exists in the matter and granting opportunity to parties to approach the Civil Court. If such approach to Civil Court is not made or despite approach no injunction is granted by Civil Signature Not Verified Signed by: ANAND KUMAR Signing time: 26-08-2025 12:08:41 NEUTRAL CITATION NO. 2025:MPHC-GWL:18727 10 WP-15407-2025 Court, then mutation will be carried out on basis of succession by ignoring disputed testamentary document and in case of non- testamentary registered title documents, by giving effect to such document. Once a dispute in the matter of competence of testator, validity of the will (whether registered or not) or into a non- testamentary registered title document or dispute as to title is raised before Civil Court and injunction is granted, then the only course open for the Tehsildar would be not to proceed further and to report the matter to the Collector under Section 110 (7) of MPLRC.
7) In case no dispute is raised by any legal heirs of the testator or by any other person in the matter of competence of testator to execute the will and authenticity of the will, then it would be open for the Tehsilder to carry out the mutation in such undisputed cases. However, even in those cases subsequent Civil Suit will not be barred.
8) In case where issue of Government having interest in the land crops up in course of mutation, then the Tehsildar may decide that question in terms of section 111 read with section 257 (a) MPLRC by exercising jurisdiction which is wider than administrative one and may take evidence, but in those cases also, no enquiry as to validity of will or of any registered title document can take place before the Tehsildar."
19. In view of the above-settled popositions of law, this Court is also of the considered opinion that the Tahsildar could not have passed an order of mutation by adjudicating the genuineness of Hibbanama. Accordingly, learned Additonal Commissioner, Bhopal Division, Bhopal committed no error in allowing the second appeal preferred by the respondent vide order dated 16.11.2021.
20. Taking overall view in the matter, no ground for interference is made out. The instant writ petition filed by the petitioners, being bereft of merits, is hereby dismissed.
21. The petitioners are free to take recourse to such other remedy as may be permissible under law for establishment of their rights, if any, in respect of Hibbanama in question.
Signature Not Verified Signed by: ANAND KUMAR Signing time: 26-08-2025 12:08:41NEUTRAL CITATION NO. 2025:MPHC-GWL:18727 11 WP-15407-2025 (AMIT SETH) JUDGE AK/-
Signature Not Verified Signed by: ANAND KUMAR Signing time: 26-08-2025 12:08:41