JUDGMENT B.K. Misra, Chairman. - These are three connected revisions under Section 219 of the U.P. Land Revenue Act directed against the order of the learned Collector, Saharanpur under Section 218 of the Act on April 5, 1974 in case Nos. 93 and 94 of 1973. At the start of the arguments the learned counsel for the O.P. raised a preliminary objection on the maintainability of the revision. Before going into the merits of the case, I would, therefore, decide that objection. According to the facts of the case, mutation proceedings started on the death of one Jaimal. Jaimal had one brother Bakhtawar Singh whose son Gopi Singh is the revisionist before the Board. The mutation proceedings had been contested by Bakhtawar Singh upto the level of the Collector. The other contestants were Kashi Ram who is son of the deceased Jaimal's daughter. Ram Prasad Singh and Kesho Ram Singh sons of Balloo Singh and Rishipal Singh, Satpal and Raj Pal Singh sons of Phul Singh. The last two groups are the nephews of the deceased. According to the learned counsel for the O.P. Bakhtawar Singh only impleaded Kashi Ram in the revision application under Section 218 of the Act before the Collector leaving out the remaining five contestants and, therefore, action of the revisionist in impleading all the six persons before the Board was not warranted as the judgment of the learned trial court had become final against Opposite Parties 2 to 6 before the Board. The learned counsel further contended that it cannot be left to the sweet will of the contestants to pick and chose in arraying of parties according to his convenience. According to him the revision thus suffered from the infirmity and were liable to be thrown nut. 2. I have heard the learned counsel for the parties at length and considered the case law cited by them. To cut this discussion short, it may be stated at the very out set that all the provisions of C.P.C. do not apply to the proceedings under the Land Revenue Act. Under rule 60 of the Revenue Court Manual the provisions of Rule 17. Order VI of Rules 1 to 3 of Order XXTTI and Order XXXTT of the C.P.C. shall apply to all proceedings under the Land Revenue Act.
Under rule 60 of the Revenue Court Manual the provisions of Rule 17. Order VI of Rules 1 to 3 of Order XXTTI and Order XXXTT of the C.P.C. shall apply to all proceedings under the Land Revenue Act. It has also to home in mind that mutation proceedings under Sections 33, 33-A and 34 are not to be initiated on anything comparable to a plaint or appeal within the definition of C.P.C. Section 33 enjoins upon the Collector to maintain the record of rights and amend the annual registers. The action under Sections 33-A and 34 is just a consequence to this statutory responsibility all that is needed is to afford opportunity of objections; consequently the action initiated on receiving such a report takes the form of proclamation in rem. The right to object is given to every one and there are no plaintiffs and defendants as contemplated in the C.P.C. As such there is no question of arraying all parties on any particular side. I shall now come to the objection raised by the learned counsel for the O.P. The opposite parties 2 to 6 mentioned in the revision before the Board were not cited in the revision under Section 218 preferred before the learned Collector, Saharanpur. The decision of the Collector could not be presumed and these parties who were objectors before the Tahsildar could have on their own motion demanded to be heard in the revision before the Collector. The lacuna if any, was in the proceedings before the learned Collector. The fact that they chose not to contest that revision cannot warrant an inference that they had been condemned unheard. Since these revisions arose out of mutation proceedings, there was no question of non-joinder of necessary parties and even if it were so the revisionist Gopi Sigh has cured this defect by arraying them as parties before the Board and they have chosen not to put in appearance here. Against this factual background the preliminary objection has been reduced to a very minor academic issue. 3. I shall now consider whether such a lucana would warrant the revision to be thrown out at this stage.
Against this factual background the preliminary objection has been reduced to a very minor academic issue. 3. I shall now consider whether such a lucana would warrant the revision to be thrown out at this stage. Section 219 of the Land Revenue Act confers a very wide jurisdiction on the Board inasmuch as it can take cognizance of any proceedings coming to its notice in any way whatsoever, and once the Board is seized of the matter it can call for the record of the case decided by the subordinate court and pass such order as it thinks fit. Therefore, once the Board had admitted the revision it cannot at a later stage be thrown out on the ground of technical defect. The Board has expressed this views in Ram Autar Singh v. Hasanuddin, 1951 R.D. 169. It has been laid down in that case that once an application or revision is admitted by the Board it amounts to a decision by the Board to call for the record of the case and when that record has been received it then becomes the duty of the Board to examine the case and see if anything has been decided in the proceedings which demands interference by the Board in the interest of justice. Similarly it has been held that it is immaterial whether the person or party who has brought the irregularity or incorrect exercise of jurisdiction to the notice of the court is a party or not Onkar Prasad v. Kalika Prasad, 1972 R.D. 278. This interpretation of the learned Member is in consonance with the spirit of Section 219. As such, the preliminary objection is overruled. 4. I shall now take up the merits of the revision itself. The contest between Gopi Singh and Kashi Ram is based on two points, the general order of succession as provided under Section 171, and the right of a Bhumidhar with transferable rights to bequeath his holding or any part thereof under Section 169 of the U.P. Z.A. and L.R. Act. I heard the counsel at great length in this matter.
The contest between Gopi Singh and Kashi Ram is based on two points, the general order of succession as provided under Section 171, and the right of a Bhumidhar with transferable rights to bequeath his holding or any part thereof under Section 169 of the U.P. Z.A. and L.R. Act. I heard the counsel at great length in this matter. While the learned counsel for the revisionist laid great stress on the fact that the will allegedly executed by Jaimal bequeathing his share to his daughter's son Kashi Ram had not been properly proved, none of the counsel at any stage has challenged the right of the Bhumidhar with transferable rights to execute such a document. The Khatauni for 1380-12 F. shows that the deceased Jaimal was recorded as Bhumidhar. Since he was recorded as a Bhumidhar prior to the amendment of Section 169 of the U.P. Z.A. and L.R. Act by U.P. Act VIII of 1977, which took effect on January 28, 1977, Jaimal deceased was Bhumidhar with transferable rights. As such, if he has executed a will its contents should be respected. In this context the arguments advanced by the learned counsel for the revisionist that the will had not been properly proved have to be considered. The learned counsel had stated that Amar Singh Nand, expert had conclusively established that the alleged will was a fraudulent document. The learned Naib Tahsildar has considered all this and taken note of certain flaws in the Expert's evidence. He has tried to explain the presence of line in the photograph of thumb at Ex. Ka-7 by saying that his filter was broken. He again mentioned that photo No. 3 of thumb No. 3 shows that the distance between the writing and thumb on document differ proportionately from what as it appears to be in the photograph. Whatever the size of the enlargement the relative distance between two things in the photograph should remain the same, if the learned Naib Tahsildar was not convinced by the evidence of the Expert due to these shortcomings, it is a matter of appreciation of evidence which cannot be looked into in a revision under Section 219 because there is no failure in the exercise of or in wrongful exercise of jurisdiction.
The learned Naib Tahsildar has adduced reasons in his judgment why he held the will executed by Jaimal in favour of his daughter's son to be genuine. Appreciation of evidence only requires that all relevant points are discussed. The conclusions arrived at on the basis of reasons adduced by the court cannot be challenged even if another inference is possible. 5. The last question, therefore, that remains is whether the provisions of Section 171 shall over-ride the provisions of Section 169. It is an accepted practise in the interpretation of-statutes that a subsequent section will not contradict a foregoing-one. As such, the right of the Bhumidhar with transferable right to execute a will as enshrined in Section 169 is unrestricted and if it has been exercised, it cannot be negated by another person though he may have a preferential claim in general order of succession as defined in Section 171. Jaimal was competent to execute a will and, as such, the document which has been held to be duly proved by the learned Naib Tahsildar cannot be ignored. The claim of Bakhtawar and through him of his son Gopi Singh, therefore, cannot over-ride the wishes of Jaimal as expressed in the will. The revision filed by Gopi Singh has no force and is dismissed accordingly. 6. Mutation should be made in the village record in the name of Kashi Ram. 7. A copy of this order should be placed in Revision Nos. 276 to 278 L. R. of 1973-74, District Saharanpur.