Kailash Chand v. Lad Bai (Deceased) through L. Rs.
2011-05-25
G.K.TIWARI
body2011
DigiLaw.ai
Dr. TIWARI, M.—This is a revision petition under Section 84 of the Rajasthan Land Revenue Act 1956 (in short `the Act') against the impugned judgment dated 27.6.2000 of Additional Divisional Commissioner Kota passed on appeal/LR/157/99. 2. The facts, in brief, leading to the revision are that Tehsildar Hindoli (District Bundi) passed an order dated 19.8.1998 by which the disputed land was mutated in favour of the daughters (namely Lal Bai and Sushila Devi) of the deceased khatedar Chauth Mal. The petitioner challenged in appeal the order dated 19.8.1998 of Tehsildar before Additional District Collector Bundi under Section 75 of the Act, in which Additional Collector passed the judgment dated 30.7.1999 whereby the appeal was rejected. Aggrieved against the judgment dated 30.7.1999 of Additional District Collector, the petitioner filed second appeal under Section 76 of the Act before Additional Divisional Commissioner Kota who, too, dismissed the appeal vide his impugned judgment dated 27.6.2000. Hence the revision petition in this court. 3. I have heard the learned counsels of both the parties. 4. The learned counsel for the petitioner contended that the deceased khatedar Chauth Mal executed two wills, the first in favour of Lad Bai on 19.10.1981 and the second will in favour of the petitioner executed on 2.7.1997. Thus, the subsequent and the last will prevail over the first will as held in 2006 RRD 190. So, the mutation should have been carried out in favour of the petitioner on the basis of the will dated 2.7.1997. But all the courts below overlooked this factual and legal position. Therefore, all the judgments of the courts below should be set aside. It was further pleaded that there is a regular suit pending between the rival parties in a competent revenue court, so the disputed mutation should not have been carried out. It was also contended that the appeal against the order of disputed mutation passed by Tehsildar should have been filed before Additional Divisional Commissioner and not before Additional District Collector Bundi. But the first appeal was decided by Additional District Collector and second appeal was decided by Additional Divisional Commissioner beyond their jurisdiction so the impugned judgments of both the courts below deserve to be set aside on this count only. 5.
But the first appeal was decided by Additional District Collector and second appeal was decided by Additional Divisional Commissioner beyond their jurisdiction so the impugned judgments of both the courts below deserve to be set aside on this count only. 5. Vehemently opposing the contentions of the petitioner, the learned counsel for the non-petitioners pleaded that both the appeals- the first as well as the second-were filed by the petitioner only. So it is the petitioner who is responsible for filing the appeal in wrong court, if it is so. Now the petitioner cannot take advantage of his own doing. It was also contended that Smt. Lad Bai and Smt. Sushila Devi filed an application against the petitioner under Section 372 of the Indian Succession Act in the court of District Sessions Judge Bundi who by his judgment dated 15.5.2004 (case No. 21/98) held the alleged will carried out by Chauth Mal in favour of Kailash as unproved; and the petitioner Kailash (non-petitioner therein) was not considered fit for grant of succession certificate. Since a competent civil court has decided against the alleged will purportedly made in favour of Kailash no relief can be granted on the basis of an unproved will in a matter of mutation which is fiscal in nature. It was also submitted that the mutation order dated 19.8.1998 of Tehsildar was passed much before filing of the regular suit by the petitioner in the year 1999; as such there is nothing to intervene in the impugned mutation order until the regular suit is decided. The learned counsel further argued that the mutation is decided in favour of the daughters who are natural successors, therefore, there is nothing illegal in the mutation order under consideration. The learned counsel cited 1995 RRD 449, 2004 RBJ 515 and 2002 RBJ 290 in support of his contention. The learned counsel argued against interference in the concurrent judgments of three courts below. 6. I have given thoughtful consideration to the rival contentions, perused the impugned judgments of the courts below and gone through the material on record. 7. Perusal of the judgment dated 19.8.1998 of Tehsildar Hindoli (District Bundi) shows that he carried out mutation of the disputed land in favour of Lad Bai and Sushila Devi who are daughters of the deceased khatedar Chauth Mal.
7. Perusal of the judgment dated 19.8.1998 of Tehsildar Hindoli (District Bundi) shows that he carried out mutation of the disputed land in favour of Lad Bai and Sushila Devi who are daughters of the deceased khatedar Chauth Mal. The plea of the petitioner is that he has a will executed in his favour by the deceased Chauth Mal on 2.7.1997. Though this is a second will but it will prevail over the earlier will executed in favour of Lad Bai on 19.10.1981. Perusal of the copy of the second will dated 2.7.1997 shows that former will. which is registered, is not cancelled with writing of the alleged second will. It is important to observe here that after going through the evidence adduced before him Tehsildar Hindoli found the second unregistered will as suspicious and fabricated (cukoVh). It is worth observing here that District Sessions Judge Bundi in his judgment dated 15.5.2004 passed in case No. 21/98 under Section 372 of the Indian Succession Act has held that the alleged will executed by Chauth Mal purportedly in favour of Kailash (petitioner) is unproved. The learned counsel for the petitioner has submitted that the judgment dated 15.5.2004 of District Sessions Judge is challenged in Hon'ble Rajasthan High Court where the matter is still pending. Therefore, no credence should be placed on it. Be it so, the unregistered second will dated 2.7.1997 purportedly made by the deceased khatedar Chauth Mal in favour of Kailash (petitioner) is under cloud which can only be cleared by the competent court. However, when a registered will is weighed against an unregistered will, the registered will prevail over the unregistered will specifically when the last alleged will does not categorically state about the cancellation of the former will exhibiting conscious application of a discerning mind of the executant. The non-petitioners Lad Bai and Sushila Devi are the daughters and natural heirs to the deceased khatedar Chauth Mal in addition to the fact that Chauth Mal has executed a registered will in favour of his daughters. Thus all the courts below in their concurrent judgments have correctly decided mutation in favour of natural successors to the deceased khatedar. In this regard I am buttressed by the ruling given by this court in `Harvilas vs. Vidya Devi'- 2004 RBJ 515. 8.
Thus all the courts below in their concurrent judgments have correctly decided mutation in favour of natural successors to the deceased khatedar. In this regard I am buttressed by the ruling given by this court in `Harvilas vs. Vidya Devi'- 2004 RBJ 515. 8. The learned counsel for the petitioner has laid stress on the fact that the judgment passed in a disputed mutation by Tehsildar is appealable before Divisional Commissioner/Additional Divisional Commissioner and not before Additional District Collector. It is strange and amusing to observe here that it was the petitioner only who himself filed first appeal before Additional District Collector Bundi under Section 75 of the Act and the second appeal before Additional Divisional Commissioner Kota. It is equally strange to observe that the petitioner did not realise that he himself has filed two appeals in such courts which he now says lack jurisdiction. Filing of appeal was a conscious decision of the petitioner exercised with the legal help of the concerned advocates who duly represented the petitioner as appellant in both the courts below. Thus, the shrewd and wily argument of the learned counsel for the petitioner on the lack of jurisdiction of both the appellate courts does not hold water as it was the petitioner who himself approached both the appellate courts and succumbed to their jurisdiction. Nonetheless, if it was Additional Divisional Commissioner who was competent to hear an appeal, I have before me an appellate judgment of Additional Divisional Commissioner, and I do not find any legal infirmity in it. 9. It would not be out of place to mention here that a regular suit for declaration of khatedari rights in respect of the disputed land is pending between the rival parties in a competent revenue court. The regular suit was filed in the year 1999; whereas the impugned mutation order of Tehsildar was passed on 19.8.1998. This mutation order was passed prior to the institution of the revenue suit. Thus it cannot be said that Tehsildar carried out mutation of the land during pendency of a regular revenue suit. Now that revenue suit is pending before the competent revenue court, the rights of the parties would be decided with the disposal of the regular suit and not through interference in the impugned mutation order of Tehsildar which was passed much before filing of the suit.
Now that revenue suit is pending before the competent revenue court, the rights of the parties would be decided with the disposal of the regular suit and not through interference in the impugned mutation order of Tehsildar which was passed much before filing of the suit. In this regard I am placing reliance on the judgment of this Court as reported in 2002(9) RBJ 290 - Kheta vs. Raghunath. 10. In view of the foregoing discussion, there is no meat in the revision which deserves to be dismissed. 11. In the result, the revision stands dismissed. Pronounced.