Research › Search › Judgment

Rajasthan High Court · body

2008 DIGILAW 419 (RAJ)

Kailash Chand v. Chhoti

2008-02-11

G.K.TIWARI

body2008
Honble TIWARI, M.—This is a revision petition under Section 84 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as ‘the Act of 1956’) against the order dated 12.8.1998 of Additional Divisional Commissioner, Jaipur passed in Appeal No. 24/1996. 2. Briefly stated facts are that late Rampyari widow of Ramsi was khatedar tenant of disputed khasra Nos. 118, 136, 242, 256, 459 and 482 total area 22 bighas 11 biswas situated in village Mansar Kheri of Tehsil Bassi in Jaipur District. On her death the disputed land was mutated in the name of Kailash son of Shri Narain vide mutation No. 408 dated 5.6.92 by Tehsildar, Bassi. Aggrieved against this mutation order dated 5.6.92 of Tehsildar, Bassi, non-applicant No.1 Chhoti went in appeal to Additional Collector dated 23.1.96 non-applicant No. 1 Chhoti filed second appeal before learned Additional Divisional Commissioner, Jaipur who by allowing the appeal, dismissed the order of Additional Collector, Jaipur dated 23.1.96 and stayed any decision in mutation under consideration till final decision of a suit pending before Assistant Collector. Aggrieved against this order dated 12.8.98 of Additional Divisional Commissioner, Jaipur the instant revision is preferred. 3. I have heard both the learned counsels. 4. Learned counsel for the applicant has argued that the original khatedar of the disputed land measuring 22 bighas 11 biswas was Ramsi son of Ganesh. After the death of Ramsi, mutation was opened and attested in favour of his wife Rampyari vide mutation No. 243 dated 25.5.83. Thus Rampyari became khatedar of the disputed land. After death of Rampyari, mutation No. 408 was opened and sanctioned by Tehsildar on 5.6.92 in favour of Kailash son of Shri Narain in whose favour Rampyari had executed a registered Will transferring her entire land and properties. In the meantime Chhoti, the non-applicant No. 1, filed a suit before Assistant Collector claiming that the khatedar along with Ramsi with regard to the suit land. Earlier also order dated 25.5.83 of mutation No. 243 was challenged before Additional Collector who vide his decision dated 14.6.85 rejected mutation which was challenged before Additional Divisional Commissioner who upheld the mutation order of Tehsildar dated 25.5.83 by which the disputed land was mutated in favour of Rampyari . Learned counsel for the applicant argued that by the impugned order dated 12.8.98. Learned counsel for the applicant argued that by the impugned order dated 12.8.98. Additional Divisional Commissioner has stopped succession on death of a recorded khatedar till decision of the suit filed by Chhoti. Chhoti has claimed her husband’s share and khatedari right along with Ramsi who died long back. Ultimate decision in the pending suit would be whether Chhoti’s late husband had any share in the disputed land or not; it cannot fully divest the dies succession must follow as per tenancy law. Succession cannot be held in abeyance, as has been held in 1992 RRD 227. Recorded khatedar Rampyari died without having any legal heir and she executed a registered will in favour of Kailash; as such mutation opened and attested by Tehsildar in favour of Kailash on account of the registered will is just and legal. Additional Divisional Commissioner has committed illegality in keeping succession in abeyance and stopping the mutation proceeding. 5. Opposing the above contentions, learned counsel for the non-applicants argued that the disputed land is ancestral land which was wrongly entered in the name of late Ramsi only, excluding his deceased brother Gopal. Wife of Gopal has filed a suit before the competent revenue Court for declaration of her tenancy rights along with the recorded khatedar. Since the husband of Chhoti - late Gopal - had also share in the ancestral land, it cannot be mutated in the name of Rampyari or Kailash alone. It is also argued that in the said Will Rampyari has transferred only 1/3 of her property whereas entire land is mutated in the name of Kailash. Chhoti holds one-half share in the entire disputed land and she cannot be excluded from tenancy rights. Learned counsel for the non-applicants cited 1998 RRD 368 and 370 and 2006 RRD 350 arguing that when a regular suit is pending before a Court, mutation proceedings should be stayed. As such there is nothing illegal in the impugned order of Additional Divisional Commissioner Jaipur and revision deserves to be dismissed. 6. I have given thoughtful consideration to the rival contentions and carefully studied the impugned order and gone through the documents available on the file. 7. Disputed six pieces of land measuring in total 22 bighas 11 biswas formerly stood in the name of Ramsi. After his death this land was mutated in the name of his wife Rampyari. 6. I have given thoughtful consideration to the rival contentions and carefully studied the impugned order and gone through the documents available on the file. 7. Disputed six pieces of land measuring in total 22 bighas 11 biswas formerly stood in the name of Ramsi. After his death this land was mutated in the name of his wife Rampyari. After the death of Rampyari mutation No. 408 was sanctioned on 5.6.1992 by Tehsildar, Bassi in favour of Kailash son of Shri Narain on the basis of a registered Will executed by the deceased Rampyari. Contention of non-applicant No. 1 Chhoti is that this land did not belong exclusively to the deceased Ramsi, his deceased brother Gopal (husband of Chhoti) also had an equal share in the disputed land, which, according to her, is ancestral land. There is a regular suit pending before the competent revenue Court with regard to this claim of Chhoti. Whether the Gopal had any hare on tenancy right in the disputed land which originally stood in the name of late Ramsi, will be decided on the adjudication of the regular suit. The issue before this Court is whether succession can be kept in abeyance and mutation proceedings can be stopped on the death of a recorded khatedari tenant simply because a regular suit is pending before the Court. Learned Additional Divisional Commissioner vide his order dated 12.8.1998 has kept succession in abeyance and stopped the mutation proceedings till final decision in the regular suit. The issue warrants closure examination. 8. It has been consistently held by this Court that mutation is a fiscal proceedings, it does not confer any rights. It simply determines as to by whom rent would be payable. According to Section 5(43) of the Rajasthan Tenancy Act, 1955 (in short, the Act of 1955) a tenant is one by whom rent is payable. Thus tenancy is a relationship between a tenant and a land holder through payment of rent Mutation is a proceeding which decides as to who is best entitled for the payment of rent to the land holder. Obviously no rights are conferred through mutation. It is a fiscal proceedings through which it is decided as to who is best entitled for payment of rent to the land holder (State) not a dead tenant. Obviously no rights are conferred through mutation. It is a fiscal proceedings through which it is decided as to who is best entitled for payment of rent to the land holder (State) not a dead tenant. Thus to my mind succession as per law cannot be kept in abeyance on death of a recorded tenant on the plea that a suit is pending before a Court. It is pertinent to observe here that Chhoti, non-applicant No. 1, through a suit has claimed certain share in the disputed land. If her suit succeeds she may become a co-tenant along with present recorded tenants. This mean in any case tenancy rights of the existing recorded tenants are not going to be extinguished wholly. Perusal of the will reveals that the deceased tenant Rampyari has bequeathed her entire rights in the land (not just one-third as interpreted by the non-applicant) to Kailash through a registered Will, Kailash would in any case succeeds another mutation would be opened recording he plaintiff as a co-tenant of the land specified by the competent Court along with the legatee of the deceased khatedar. Thus there is no point in keeping the succession in abeyance and stopping mutation proceedings till disposal of a suit which may take years to decide finally. I am supported in holding this view by 1992 RRD 227 which clearly lays down that mutation is a fiscal proceeding which does not decide the rights of the parties, and a mutation cannot be set aside on the ground that a suit between the parties is pending. If the non-applicant succeeds in the suit filed by her, another mutation will be attested on its basis. 9. In view of the above discussion I am of the view that learned Additional Divisional Commissioner, Jaipur through impugned order dated 12.8.1998 has committed material illegality in keeping succession in abeyance and stopping the mutation proceedings. Hence, this impugned order deserves to be set aside. 10. In the result revision succeeds and the impugned order dated 12.8.1998 of learned Additional Divisional Commissioner, Jaipur is set aside. Pronounced.