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2011 DIGILAW 1459 (RAJ)

Darshan Singh v. Mahaveer Singh

2011-07-22

G.K.TIWARI

body2011
Dr. TIWARI, M.—This appeal under Section 76 of the Rajasthan Land Revenue Act, 1956 (in short `the Act') is directed against the impugned judgment dated 18.8.2010 on Additional Divisional Commissioner, Bikaner passed in appeal No. 144/09/L.R. Act. 2. Brief facts of the case are that Gram Panchayat Samejakothi (Sriganganagar) passed a mutation order dated 18.10.2004 through mutation No. 9 by which the disputed land was mutated from the name of deceased Khatedar Ladhu Singh son of Gula Singh to Mahaveer Singh adopted son of Ladu Singh. Aggrieved against this mutation order dated 18.10.2004 of Gram Panchayat Samejakothi, the appellant filed an appeal before Sub-Divisional Officer, Raisinghnagar who allowed the appeal and remanded the case for re-hearing and re-decision to Tehsildar Raisinghnagar by his judgment dated 21.11.2005. Thereafter Tehsildar Raisinghnagar passed the judgment dated 3.1.2007 after hearing both the parties and carried out mutation in favour of the respondent No. 1, as was done earlier by the Gram Panchayat, Samejakothi, vide its mutation No. 95 dated 18.10.2004. This judgment dated 3.1.2007 was challenged before Additional Divisional Commissioner, Bikaner by the appellant in an appeal filed under Section 75 of the Act. Additional Divisional Commissioner, Bikaner dismissed the appeal vide his impugned judgment dated 18.8.2010 which is further challenged in second appeal under Section 76 of the Act before this Court. I have heard the learned counsels of both the parties. 3. The learned counsel for the appellant contended that deceased khatedar Ladhu Singh executed a Will dated 2.5.1987 in favour of the appellant Darshan Singh. Thus, the appellant is legal heir of the deceased khatedar on the basis of this Will but Tehsildar illegally carried out mutation in favour of the respondent No. 1 as an adopted son. Additional Divisional Commissioner by a non-speaking impugned order upheld the mutation order of Tehsildar Raisinghnagar without applying his judicial mind. When an order is non-speaking it should be quashed as is held by AIR 2005 SCW 1074 . It was also pleaded that khatedar tenant of the disputed land is Ladhu Singh son of Gula Singh (deceased) whereas the alleged adoption deed is carried out by Ladu Singh of Jassu Singh; both are different persons. The khatedar Ladhu Singh son of Gula Singh carried out a Will in favour of the appellant, whereas it was some other Ladhu Singh who perhaps executed an adoption deed in favour of the respondent No. 1. The khatedar Ladhu Singh son of Gula Singh carried out a Will in favour of the appellant, whereas it was some other Ladhu Singh who perhaps executed an adoption deed in favour of the respondent No. 1. But the discrepancy is overlooked by both the Courts below. Therefore, erroneous judgments of both the Courts below should be set aside and mutation should be carried out in favour of the appellant, as legatee of the deceased Khatedar Ladhu Singh son of Gula Singh. 4. Opposing the contentions of the appellant, the learned counsel for the respondent No. 1 submitted that the khatedar Ladhu Singh died in the year 1986. So there is no question of his carrying out a Will on 2.5.1987 as is alleged by the appellant. It was also submitted that the appellant never produced the alleged original Will in the Court; whereas the adoption deed in favour of Mahaveer Singh is a duly registered document. It was also submitted that Ladhu Singh son of Gula Singh as well as Ladhu Singh son of Jassu Singh are the same person differently described, as is also held by Munsif Magistrate, Anoopgarh in judgment dated 21.9.1984 passed in case No. 122/80. It was submitted that only a khatedar tenant can carry out a will but Ladhu Singh was a gair khatedar tenant when the alleged Will was said to be carried out. Therefore, such Will is illegal per-se. The learned counsel pleaded that the concurrent judgments of Courts below cannot interfered in second appeal as no special law point is involved. 5. I have given thoughtful consideration to the rival contentions, perused the impugned judgment of the Court below and gone through the material on record. 6. Perusal of the record shows that mutation No. 95 was carried out by Gram Panchayat Samejakothi in favour of the respondent No. 1 Mahaveer Singh as an adopted son of Ladhu Singh (deceased) after death of the tenant Ladhu Singh. The appellant has disputed mutation on the ground that he is a legatee of the deceased through Ladhu Singh who has allegedly carried out a Will in favour of appellant. The appellant has not been able to produce the original Will before any of the Courts so far. An unattested and uncertified copy of the alleged Will enclosed in the case file shows that this Will is unregistered. The appellant has not been able to produce the original Will before any of the Courts so far. An unattested and uncertified copy of the alleged Will enclosed in the case file shows that this Will is unregistered. Though a Will is not required to be compulsorily registered under the Indian Registration Act, yet it has to be proved nevertheless which has not been done so far in absence of the original Will. Presuming for the sake of argument that any such will was carried out by the deceased tenant, it has emerged from perusal of the record that Ladhu Singh was a gair khatedar and as such he had no right to carry out Will in accordance with provisions of Section 39 of the Act of 1955. The material fact has been established by the Courts below, which cannot be interfered with in second appeal. On the contrary, the adoption deed carried out in favour of respondent No. 1 Mahaveer Singh was registered and proved before the Trial Court, as is evident from perusal for the document exhibited as Ex. A1. When an unattested and uncertified photocopy of an alleged unregistered Will is pitted against registered adoption deed which is also exhibited and proved in the Trial Court, it is the latter which will be lent credence to over the former. 7. Interestingly who death certificates of Ladhu Singh (deceased) are available on the record; one death certificate shows that Ladhu Singh son of Jassu Singh died on 3.5.1986; another death certificate of Ladhu Singh son of Gula Singh shows 10.5.1992 as the date of death. The contention of the appellant is that both are two different Ladhu Singh, whereas all the Courts below have concurrently held that Ladhu Singh son of Gula Singh and Ladhu Singh son of Jassu Singh are same person. This finding of fact is corroborated by the judgment dated 21.9.1984 (case No. 122/80) of Munsif and Judicial Magistrate, Anoopgarh who has also held that Ladhu Singh son of Gula Singh and Ladhu Singh son of Jassu Singh are the same person. However, such contentions issue can be decided only in a regular suit after framing necessary issue. Until then no contrary inference can be drawn by the Court in a summary matter of mutation vis-a-vis concurrent findings of the Court below. 8. Mutation is a summary proceeding of fiscal nature. However, such contentions issue can be decided only in a regular suit after framing necessary issue. Until then no contrary inference can be drawn by the Court in a summary matter of mutation vis-a-vis concurrent findings of the Court below. 8. Mutation is a summary proceeding of fiscal nature. This matter of mutation has been enquired into at three different levels of Gram Panchayat. Tehsildar and Additional Divisional Commissioner who have all arrived at common concurrent finding and decisions which cannot be interfered with in the second appeal. The appellant is free to prove and establish his claim and title on the disputed land through regular revenue suit. 9. In view of the foregoing discussion there is no merit in the second appeal which deserves to be dismissed. 10. As a result the appeal is dismissed and the judgment dated 18.8.2010 of Additional Divisional Commissioner, Bikaner is upheld. Pronounced.