Delhi High Court
Sh. Satbir Singh & Anr. vs The Financial Commissioner & Ors. on 15 March, 2019
Author: I. S. Mehta
Bench: I.S.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:15thMarch, 2019
+ W.P.(C) 541/2017
1. SH. SATBIR SINGH
2. SH. SURINDER KUMAR ...Petitioners
Through: Mr. Dhruv Sharma, Advocate
with Ms. Saumya Das,
Advocate.
versus
1. THE FINANCIAL COMMISSIONER
2. THE COLLECTOR
3. SUB DIVISIONAL MAGISTRATE
4. SH. OM PRAKASH ...Respondents
Through: Mr. Manoranjan, Advocate for
R-4.
CORAM:
HON'BLE MR. JUSTICE I.S.MEHTA
JUDGMENT
I. S. MEHTA, J.
1. The petitioners are challenging the legality and validity of order dated 06.12.2016 passed by the Ld. Financial Commissioner in Case No. 184/2012.
W.P.(C) 541/2017 Page 1 of 102. Facts on record shows that one Dalel Singh S/o Ghisa Ram was recorded Bhumidar in respect of land forming part of Khasra No. 75/3/2(1-15), 4/1(1-8) and 4/2(3-08) measuring approximately 6 Bighas and 11 Biswas in total, situated within the revenue estate of village Dhansa, Delhi. He was unmarried and was uncle of present petitioners. Dalel Singh executed a Will dated 30.10.1984 in favour of present petitioners. Dalel Singh died on 01.05.1994. Thereafter, it is stated, both the petitioners moved an application before Tehsildar for mutation of the aforesaid land on the basis of the said registered Will. The Tehsildar instead of giving effect to said registered Will, told petitioners to file application alongwith death certificate. Tehsildar despite having knowledge of the registered will dated 30.10.1984, later mutated the land in question at the back of the petitioners in favour of Sh. Om Prakash (Respondent No.4 herein) vide order dated 31.05.1994.
3. The Petitioners aggrieved from the said mutation order preferred an appeal before the Ld. Additional Collector. The Ld. Additional Collector after hearing the parties set aside the order passed by the Tehsildar dated 31.05.1994 and remanded back matter to Sub Divisional Magistrate/Revenue Assistant for a de-novo trial vide order dated 13.03.1996. It seems during the pendency of the trial by SDM/RA, petitioner herein filed Civil suit for partition in Suit No. 113/02 against Respondent No.4 The said suit was dismissed on 17.03.2003. Subsequently, Respondent No.4 too filed another suit, Suit No. 247/2010 against the petitioners for declaration of Will as W.P.(C) 541/2017 Page 2 of 10 null and void, same was dismissed by the Ld. Civil Judge vide order dated 02.02.2011. Aggrieved from the order dated 02.02.2011, Respondent No.4 preferred appeal, same was dismissed by the Ld. Senior Civil Judge vide order dated 06.08.2011.
4. Thereafter, petitioners preferred a writ petition before this Court in WP(C) 13672/09. This Court vide order dated 25.01.2010 directed SDM/RA to decide the matter in one month. The SDM/RA after hearing the parties sanctioned the mutation in favour of the petitioners vide order dated 29.03.2010. Respondent No.4 aggrieved from the aforesaid order passed by SDM/RA dated 29.03.2010 preferred appeal before Collector (SW), same was allowed and order passed by SDM/RA was set aside, Collector (SW) directs mutation in the name of Respondent No.4 vide order dated 26.03.2012.
5. Petitioner aggrieved from the order passed by Collector (SW) dated 26.03.2012 preferred second appeal before Financial Commissioner for setting aside the order dated 26.03.2012 passed by Collector (SW) and to restore the order of SDM/RA dated 29.03.2010.
6. Financial Commissioner after hearing the parties and going through the available records set aside the order passed by Collector (SW) dated 26.03.2012 and remanded back the matter to SDM/RA (Najafgarh) with direction to decide the matter afresh in a time bound manner vide order dated 06.12.2016.
W.P.(C) 541/2017 Page 3 of 107. Aggrieved from the said order of Financial Commissioner dated 06.12.2016 petitioner preferred to file the present writ petition under article 226 of The Constitution of India with following grounds and prayer:
Grounds:
The impugned order dated 06.12.2016 is arbitrary and unsustainable in law, based on surmises and conjectures and the findings does not stands the judicial scrutiny for want of proper appreciation of facts on record which led 23-24 years of continuous litigation between the parties. The claim of the petitioner is based on a registered Will and Tehsildar has got no power to look into the legality and validity of registered Will in question except to go for mutation in favour of the petitioners.
Prayer:
i. Issue a writ in the nature of certiorari thereby quashing the impugned order dated 06.12.2016.
ii. Issue a writ in the nature of mandamus thereby directing the Respondent No.1 to restore the second appeal filed by the petitioners herein and to decide the same is accordance with the incontrovertible finding of the due execution of will returned by the civil court in Suit No. 113/02.
iii. Any other order(s)/direction(s) that this Hon'ble Court may be pleased to grant under the facts and circumstances of the instant case.
8. The Ld. counsel of Respondent No.4 has submitted that Dalel Singh W.P.(C) 541/2017 Page 4 of 10 was recorded Bhumidar of the aforementioned land. He further submitted that Respondent No.4 was real brother of Dalel Singh and since Dalel Singh was unmarried he was staying with Respondent No.4 and all land of Dalel Singh was in his possession and was cultivated by him. However, he further submits that the case of the petitioner is that Dalel Singh was looked after by the petitioners during his last days and on account of love and affection Dalel Singh bequeathed his agricultural land by way of registered Will dated 30.10.1984. The counsel on behalf of the Respondent No.4 further submitted that alleged Will is forged and fabricated as Dalel Singh being illiterate never signed in his life and used to put thumb impression only. The counsel of Respondent No.4 further submitted that the petitioners has never brought the original Will in any proceedings and on record, therefore, thumb impression could not be compared with admitted thumb impression. The Will has to be proved by the petitioners that Testator executed a valid and genuine Will in favour of the petitioners and relied upon the Judgment Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91. The counsel of Respondent No.4 further submitted that he never preferred appeal against finding of the Civil Judge in suit No. 113/03, appeal only lies against a decree or against an order, as per Order 43 Rule 1 no appeal can lie against a mere finding. Reliance is placed on Ganga Bai v.
Vijay Kumar 1974 AIR (SC) 1126. The counsel for Respondent No.4 further submitted that since the Civil suit was dismissed, plea of Res Judicata is not available and placed reliance on Joseph John v. District L.K., Collector, Kottayam (In S.A. No. 131 of 1994 decided W.P.(C) 541/2017 Page 5 of 10 on 28th June, 2007). The counsel of Respondent No.4 further submitted that Respondent No.4 be given opportunity to prove that Will in question is a forged one and impugned order be upheld that the matter be decided afresh in a time bound manner.
9. On the other hand counsel of the petitioners has submitted that the impugned order is bad in law, same is liable to be set aside or modified as per law.
10. In the instant case what is emerging is that:
i. One Dalel Singh S/o Ghisa Ram R/o village Dhansa tehsil Najafgarh, Delhi died on 01.05.1994. ii. Dalel Singh was unmarried and issueless Hindu living in the aforesaid area.
iii. Said Dalel Singh during his lifetime executed a registered Will dated 30.10.1984 in favour of petitioners Satbir Singh and Surinder Kumar both S/o Late Kanshi Ram and R/o Village Dhansa.
iv. Respondent No.4 Om Prakash S/o Late Lal Chand R/o village Dhansa succeeded in getting the mutation of share of land of deceased Dalel Singh in his name by misrepresenting him as a successor on moving the mutation application alongwith Form P1. The mutation sanctioned in favour of the Respondent no.4 is dated 31.05.1994.
v. The Petitioners alleged to have approached the Tehsildar W.P.(C) 541/2017 Page 6 of 10 (Najafgarh) for mutation in their favour on basis of Registered Will dated 30.10.1984 prior to mutation got effected in favour of Respondent No. 4. Petitioners felt cheated and preferred an appeal before ADM who set aside the impugned mutation dated 31.05.1994 and remanded back the matter to SDM/RA for De-novo trial. The SDM/RA vide order dated 29.03.2010 sanctioned mutation in favour of Petitioners, however the same was challenged by Respondent No.4 before Collector (SW) who vide order 26.03.2012 set aside the aforesaid order of SDM/RA and upheld the mutation of the Tehsildar dated 31.05.1994. Aggrieved from the said order, petitioners preferred an appeal before Financial Commissioner, he vide order dated 26.12.2016 set aside the order of Collector (SW) dated 26.03.2012 and remanded back the matter to SDM to start trial afresh which consumed more than 22 years just getting the mutation sanctioned. Aggrieved from the unending litigation, petitioners filed a Writ Petition under Article 226 before this court.
11. Deceased Dalel Singh was Hindu by religion and was a resident of village Dhansa, Tehsil Najafgarh, District Najafgarh, Delhi and the disputed property is also situated in village Dhansa, Tehsil Najafgarh, District Najafgarh, Delhi. The creation of suspicion in the execution of registered Will dated 30.10.1984 by Collector (SW) and discarding the same as being not probated ipso facto is bad in law. Probate in instant W.P.(C) 541/2017 Page 7 of 10 case is not required, reliance is placed on Clarance Pais v. Union of India AIR 2001 SC 1151 relevant extract is reproduced as under:
"6. ...A combined reading of Sections 213 and 57of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Section 57(a) and (b), sub-section (2) of Section 213 of the Act applies and sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories..."
12. It is expected from revenue officer, while deciding mutation of a case, he should look into the facts available before him only as the mutation proceedings are summary in nature and therefore, he need not to go into the intricate questions of law and fact. A party, if not satisfied with the order of the revenue officer may approach to competent Civil Court for redressal of his grievance and determination of his right, title and interest. Moreover, in the event of presentation of a registered deed, a formal effect should be given to the registered deed as a registered deed is prima facie proof of its execution.
13. In the instant case it is apparent that there is a registered Will dated 30.10.1984 in favour of the petitioners, the deceased Dalel Singh had gone to registrar's office for completing and executing the registration formalities of the Will which gives presumption that the deceased executed a valid Will in a sound and disposing state of mind. Had he W.P.(C) 541/2017 Page 8 of 10 been not in a sound and in disposing state of mind, there would not have been a registered Will in favour of the petitioners. Mere allegation at this stage that Will in question is forged and fabricated does not help Respondent No.4 unless he discharges his onus that Will in question is forged and fabricated by the petitioners and at the same time, he, shows, his competence of inheritance or entitlement better than that of the petitioners before a competent Civil Court. Revenue officers should avoid getting into the intricacies of legality and validity of a registered Will or registered documents, once there exists a registered document in favour of either of the party, the effect of the registered document be given on the basis of presumption of it being validly executed. Otherwise it would lead to multiplicity of suits and gaining of time reaching neither here nor there, example is the instant case where more than 22 years has elapsed just to sanction one mutation.
14. The judgment relied upon by the petitioner i.e. Smt. Karan Diwania v. Financial Commissioner, Delhi and Ors. 2013 (138) DRJ 198 at this stage is pre-mature for want of trial of an issue which would arise only after the mutation being sanctioned in favour of the petitioners and respondent No.4 challenges the said mutation and registered Will as not being validly executed and proves his better entitlement of inheritance than the present petitioners.
15. As discussed above, it is apparent that there is a registered Will dated 30.10.1984 in favour of the petitioners, consequently Tehsildar W.P.(C) 541/2017 Page 9 of 10 (Najafgarh) is directed to mutate the mutation of land bearing Khasra No. 75/3/2(1-15), 4/1(1-8) and 4/2(3-08) measuring approximately 6 Bighas and 11 Biswas as mentioned in the registered Will dated 30.10.1984 within a period of three months after giving opportunity to raise objection, if any, to the opposite party. In event of any grievance of opposite party, the opposite party may approach competent Civil Court to determine his better right, title and interest and invalidation of the Will in question. The order of Collector (SW) dated 26.03.2012 is set aside and order of SDM/RA dated 29.03.2010 and order of Financial Commissioner dated 06.12.2016 is modified accordingly as discussed above. No merit in the contention of the Respondent No.4 exists at this stage.
16. One copy each of this judgment be sent to Tehsildar (Najafgarh) and Financial Commissioner, Delhi for necessary compliance. Present petition under Article 226 of The Constitution of India is allowed accordingly.
17. All pending applications are accordingly disposed of. No order as to costs.
I.S.MEHTA (JUDGE) MARCH 15, 2019 W.P.(C) 541/2017 Page 10 of 10