Madhya Pradesh High Court
Avnish Kumar vs Satyaprakash on 29 November, 2019
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
MP 5345 of 2019
Avnish Kumar vs. Satyaprakash
Gwalior, Dated 29/11/2019
Shri NK Gupta, Senior Counsel with Shri SD Singh Bhadoriya,
Counsel for the petitioner.
Shri Udit Saxena, Counsel for the respondent.
This petition under Article 227 of the Constitution of India has been filed against the order dated 11/09/2019 passed by Additional Commissioner, Chambal Division, Morena in Case No.0679/2017- 18/Appeal, by which the appeal filed by the respondent has been allowed and the mutation of the name of the petitioner in the revenue record, has been set aside.
(2) It is the case of the petitioner that the land belonged to Rasal Singh Yadav, who expired on 21/09/2003, leaving behind his daughter Sharbati Devi. Sharbati Bai also expired on 25/05/2004 and she has been succeeded by the petitioner and, therefore, by way of inheritance, the petitioner is entitled for the property belonging to Rasal Singh Yadav. Thus, vide Annexure P2, the name of the petitioner was mutated in the revenue record by order dated 20/11/2016. (3) It appears that the respondent filed an appeal along with an application for condonation of delay. The said application was rejected by SDO (Revenue) Ater, District Bhind by order dated 04/05/2018, by 2 holding that the petitioner has failed to prima facie satisfy that the appeal could not be filed within time due to any sufficient cause or the respondent was not aware of the order passed by the Tahsildar. (4) Being aggrieved by the order passed by SDO (Revenue) Ater, District Bhind, the respondent filed an appeal which has been allowed by order dated 11/09/2019 passed by Additional Commissioner, Chambal Division, Morena in Case No.0679/2017-18/Appeal and not only the order passed by SDO (Revenue) Ater, District Bhind has been set aside, but the order passed by the Tahsildar by which the name of the petitioner was mutated, has also been set aside. (5) Challenging the order passed by the Tribunals below, it is submitted by the learned Senior Counsel for the petitioner that the appeal filed by the respondent against the order of the Tahsildar was dismissed as barred by limitation and the said order was under
challenge before the Court of Additional Commissioner, Chambal Division, Morena. If the Additional Commissioner, Chambal Division, Morena was of the view that the respondent had pointed out sufficient cause for not filing the appeal within the period of limitation, then after condonding the delay, the Additional Commissioner, Chambal Division, Morena should have remanded the matter back to the Court of SDO (Revenue) Ater, District Bhind for adjudication of the appeal on merits, but should not have set aside the order passed by the Tahsildar. 3 Furthermore, it is submitted by the learned Senior Counsel for the petitioner that it is well-established principle of law that the revenue authorities cannot decide the rights of the parties and cannot mutate the names of the parties on the basis of Will and in the present case, the respondent is claiming his title over the property in dispute on the basis of Will executed by Rasal Singh Yadav, whereas it is a forged document.
(6) Per contra, it is submitted by the Counsel for the respondent that in fact, the petitioner has suppressed the material facts. After the death of Rasal Singh Yadav, the respondent filed an application for mutation of his name on the basis of Will executed by Rasal Singh Yadav and that application was allowed by order dated 17/05/2004 and the name of the respondent was mutated in the revenue record. However, it appears that by hook or crook, the petitioner got his name mutated without issuance of any notice to the respondent and, thus, the order passed by Additional Commissioner, Chambal Division, Morena is in accordance with law.
(7) Heard the learned Counsel for the parties.
(8) 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 4 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. 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. '' (9) 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.
(10) 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 5 executed or not ?
(11) Thus, it is clear that it is well-established principle of law that the revenue authorities cannot mutate the name of the person on the basis of Will purportedly executed by the deceased-owner. Furthermore, in the present case, it appears that the respondent had moved an application for mutation of name by impleading only Rasal Singh Yadav as respondent. Thus, it is clear that a dead person was made as party to the proceedings. The Tahsildar also lost sight of the fact that how the application for mutation can be decided in a case where a dead person was made as a party and the legal representatives of the testator were not made as party.
(12) It is conceded by the Counsel for the respondent that the respondent is the nephew of Rasal Singh Yadav, whereas the petitioner is the grandson of Rasal Singh Yadav.
(13) Under these circumstances, this Court is of the considered opinion that in fact, it was the respondent who got his name mutated in the revenue record in a most clandestine manner. Since the revenue authorities have no jurisdiction to decide the question of mutation on the basis of Will, therefore, it is directed that in case, if the respondent is of the view that the Will was executed by Rasal Singh Yadav in his favour, then he can get his title established by filing a suit for declaration of his title on the basis of Will. Needless to mention here 6 that if any suit is filed, then any observations made by the Tribunals below with regard to genuineness of Will would not be considered either in his favour or against any of the parties and the Civil Court shall decide the question of Will strictly in accordance with law. (14) Accordingly, the order dated 11/09/2019 passed by Additional Commissioner, Chambal Division, Morena in Case No.0679/2017-
18/Appeal, is hereby set aside.
(15) With the aforesaid observation, this petition is finally disposed of.
(G.S. Ahluwalia) Judge MKB Digitally signed by MAHENDRA KUMAR BARIK Date: 2019.12.03 10:48:36 +05'30'