JUDGMENT : Hon’ble V.K. Bist, J. Present petition has been filed by the petitioners for quashing the judgment & orders dated 03.01.2008 & 07.05.2008 passed by the Commissioner, Garhwal Division, Camp Dehradun and the Additional Chief Revenue Commissioner, Uttarakhand, Dehradun respectively. 2. Facts of the case, in brief, are that Shri Abdul Haq, son of Imamudin was the owner in possession of the property in dispute, bearing Khevat No. 6 Bharuwala, Pargana Kendriya Doon, Tehsil and District Dehradun. Shri Abdul Haq had two issues i.e. son Anwar-Ul-Haq and daughter Mrs. Allaha De. Anwar-Ul-Haq had two sons, namely, Jia-Ul-Haq and Rizwan-Ul-Haq. Rizwan-Ul-Haq had four sons, namely, Shakir, Atir, Nasir and Sahid, whereas Mrs. Allaha De has two sons, namely, Mohd. Ahmad and Dilshad. After the death of Abdul Haq, name of his son Anwar-Ul-Haq and daughter Mrs. Allaha De were recorded in the revenue record. Anwar-Ul-Haq died in the year 1973, leaving behind two sons, namely, Jia-Ul-Haq and Rizwan-Ul-Haq, hence, as per Muslim Law his share would be succeeded/inherited by Jia-Ul-Haq, the petitioner no. 1 and Rizwan-Ul-Haq. Rizwan-Ul-Haq also expired on 01.07.1995, leaving behind his four sons, namely, Shakir, Atir, Nasir and Sahid (petitioner nos. 2 to 5), who had inherited/succeeded share of Rizwan-Ul-Haq. After the death of Anwar-Ul-Haq, Shri Jia-Ul-Haq and his brother Rizwan-Ul-Haq and after the death of Rizwan-UI-Haq, his sons i.e. petitioner nos. 2 to 5 came into actual physical possession of the property in dispute along with Mrs. Allaha De. Mrs. Allaha De expired on 09-01-1998, leaving behind her son Mohd. Ahmad and daughter Ms. Taslim as her legal heirs, who succeeded/inherited her share in the property in dispute as per Muslim Law and came into actual physical possession of the property as co-sharer. The petitioners applied for mutation of their names in the revenue record as legal/natural heirs of Anwar-Ul-Haq and Mrs. Allah De. Respondent nos. 1 and 2 also applied for mutation in the revenue record over the property in dispute saying that Anwar-Ul-Haq had executed a Will dated 01-05-1972 in their favour and as per his last Will dated 01-05-1972, their names should be mutated in revenue record. Initially, the matter was heard by Tehsildar, Dehradun, but since the property was/is a Non-Z.A. property, hence case was transferred to the Collector, Dehradun for mutation. Initially, the matter was heard by Tehsildar, Dehradun, but since the property was/is a Non-Z.A. property, hence case was transferred to the Collector, Dehradun for mutation. Learned Collector, Dehradun, vide his judgment & order dated 11-04-2007, directed to mutate the names of the petitioners in the revenue record, having observed that the petitioners are the natural legal heirs of Anwar-Ul-Haq and Mrs. Allaha De. Learned Collector did not find the alleged Will dated 01-05-1972 having been proved. Aggrieved by the judgment and order passed by the Collector, Dehradun, respondents preferred an appeal in the Court of Commissioner, Garhwal Division, Camp Dehradun under Section 219 of the U.P. Land Revenue Act. Learned Commissioner, Garhwal Division, Camp Dehradun, vide his impugned judgment & order dated 03-01-2008, allowed the appeal of the respondents by observing that they have inherited the disputed property on the basis of the Will of Anwar-Ul-Haq. Against the order dated 03.01.2008, the petitioners preferred revision, being Revision No. 80/2007-08, in the Court of Chief Revenue Commissioner, Uttarakhand, Dehradun, which was dismissed by impugned judgment & order dated 07-05-2008. In the meantime, the petitioners approached the Court of Civil Judge, Senior Division, Dehradun and filed Original Suit, bearing O.S No. 456 of 2008, seeking declaration that the Will dated 01-05-1972 shall be declared null and void. The said Original Suit has been decreed in total on 28-05-2009 and the decree became final, as till today neither has been stayed by any Court nor being set aside by any Court of law, as such the application under Order 9 Rule 13 of C.P.C. filed by the respondents is pending. Feeling aggrieved by the judgment and orders dated 03.01.2008 and 07.05.2008, this writ petition has been filed by the petitioners. 3. Learned counsel for the petitioners submitted that both the Courts below, while passing the impugned judgments, lost sight of the fact that succession of the property in dispute can be as per the provisions of Muslim Law. He submitted that the property in dispute is a Non-Z.A. property and provisions of U.P.Z.A. & L.R. Act are not applicable in the present matter. He argued that the respondents had not disputed the family tree of Abdul Haq and there is no challenge that the petitioners are not legal/natural heirs of Anwar-Ul-Haq and Mrs. Allaha De. Hence, status of the petitioners as legal heir of Anwar-Ul-Haq and Mrs. He argued that the respondents had not disputed the family tree of Abdul Haq and there is no challenge that the petitioners are not legal/natural heirs of Anwar-Ul-Haq and Mrs. Allaha De. Hence, status of the petitioners as legal heir of Anwar-Ul-Haq and Mrs. Allaha De is an admitted fact. He submitted that only question remained before the Courts below was as to whether petitioners stood ousted and respondents are entitled to succeed property in dispute as per Will dated 01.05.1972. He argued that the Will dated 01.05.1972 is alleged to have been executed by Anwar-Ul-Haq in favour of respondents saying that they were his servants, hence, Anwar-Ul-Haq wanted to give the property in dispute to them. Consequently, Will came to be executed by him for the entire land in question including the share of his sister Mrs. Allah De. He argued that as per the Muslim personal law, no Muslim can execute the Will of his entire property in favour of person outside the blood relation and only a Will of share of 1/3rd can be executed and in case the limit exceed, then the consent of heir has to be taken, which in the present case, in case the story of respondents being taken true, is missing. Thus, the said Will cannot be believed. In support of his submission, learned counsel for the petitioners relied upon the judgment reported in 2009 Vol 6 SCC 160 “Abdul Rahim Vs. Abdul Zabar”. He argued that both the Courts below have passed the impugned orders without appreciating the provision of Muslim Law and ignoring the most important aspect that Anwar-Ul-Haq was not the sole owner of the property in dispute. Rather, he was the owner having 2/3 rd share in the property alongwith 1/3rd share of his sister Mrs. Allaha De. He contended that both the Courts below ignored this important aspect that if Anwar-Ul-Haq was having 2/3rd share, he was not entitled to execute Will about the entire disputed property. Moreover, the learned Courts below also lost sight from the important legal aspect that no Muslim would execute Will in favour of Hindu ordinarily. Furthermore, the Will was being unearthed in the year 2006 by the respondents and the delay of having the possession of same since 1972 is fatal, as the same has not been disclosed herewith, thus, the mutation becomes null and void. Furthermore, the Will was being unearthed in the year 2006 by the respondents and the delay of having the possession of same since 1972 is fatal, as the same has not been disclosed herewith, thus, the mutation becomes null and void. In support of his submission, learned counsel for the petitioners relied upon the judgment given in the case in Regular Second Appeal no. 2322 of 1997 “Sohan Singh Vs. Bajsish Kaur”. He argued that as per Muslim Law, no Muslim is entitled to dispose of his property which would otherwise devolve in his legal heirs under Mohammedan Law by Will in favour of the person who is not heir in excess of 1/3rd except with the consent of his heirs. He submitted that legal heirs of Anwar-Ul-Haq never consented for the alleged Will. He submitted that the respondents are claiming themselves as servant of Anwar-Ul-Haq as such; there was no occasion for Anwar-Ul-Haq to execute the Will in favour of the respondents. He contended that Anwar-Ul-Haq was not the owner of the entire disputed property and was owner of 2/3rd share of the property in dispute and 1/3rd share was of his sister Mrs. Allaha De, hence he could not have executed alleged Will bequeathing entire property in suit. Moreover, being Muslim (Sunni), he was otherwise not entitled to execute Will. He submitted that the alleged Will does not bear/contain signature of Anwar-Ul-Haq and the alleged Will is a fabricated document which was neither executed nor could have been executed by Anwar-Ul-Haq. He contended that the alleged Will is neither a genuine document nor a legal document and from every aspect either factual or legally cannot be said having been proved. He argued that a Muslim cannot dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal right cannot take effect, unless the heirs consent hereto after the death of the testator. He contended that both the Courts below committed manifest error of law while passing the impugned judgments and the impugned judgments are liable be set aside. 4. On the other hand, learned counsel for the respondents submitted that the present writ petition is arising out of mutation proceedings, which are summary in nature. He contended that both the Courts below committed manifest error of law while passing the impugned judgments and the impugned judgments are liable be set aside. 4. On the other hand, learned counsel for the respondents submitted that the present writ petition is arising out of mutation proceedings, which are summary in nature. The order of mutation does not confer any right and title in favour of the persons whose names have been mutated. He submitted that Section 40 (a) of the U.P. Land Revenue Act provides that if a person is aggrieved by any order passed in mutation proceedings, an aggrieved party has an efficacious remedy to get its title declared from the competent Court. Section 40 (a) gives an elaborative right to an aggrieved party to get its right declared from the competent Court. Thus, the order passed in the mutation proceedings is not the final one as it pertains to the mutation proceedings. Learned counsel for the respondents raised preliminary objections in regard to the maintainability of the writ petition. He submitted that the Division Bench of the Allahabad High Court reported in “AIR 1957 Allahabad 205” has held that the mutation proceedings are summary in nature and does not give any right and title in favour of a party, therefore, the writ petition arising out of the mutation proceedings is not maintainable. Learned counsel for the respondents referred to the judgments reported in 1999 (90) RD 633, 1991 RD 72, 2001 (92) RD 166 and 2002 (93) RD 134. He submitted that Anwar-Ul-Haq, who was Sunni, can’t bequeath his property to the respondent, being the respondent no.2 a Hindu, he submitted that the contention of the petitioners is wholly illegal and against the settled proposition of law. He submitted that as far as execution of Will is concerned, a testator has own free will to bequeath his property to anyone in respect of the caste, creed and religion, and if such a condition is imposed, then it can’t be a Will. Meaning thereby, imposition of any condition on testator can’t be treated as Will. Thus, the submission advanced on behalf of the counsel for the petitioners is not tenable. He submitted that another submission on behalf of counsel for the petitioners is that a Muslim can’t bequeath his entire property and only can bequeath 2/3rd of his share. Meaning thereby, imposition of any condition on testator can’t be treated as Will. Thus, the submission advanced on behalf of the counsel for the petitioners is not tenable. He submitted that another submission on behalf of counsel for the petitioners is that a Muslim can’t bequeath his entire property and only can bequeath 2/3rd of his share. In reply, he submitted that the contention is legal, but the arguments of the learned counsel for the petitioners is incorrect, as the deceased Anwar-Ul-Haq had not executed the Will of his entire property to the respondents. He has executed the Will in respect of the property in dispute; the rest of the properties have been given by him to his legal heirs. Thus, the submission of learned counsel for the petitioners is not sustainable. He argued that the counsel for the petitioners has placed reliance on a judgment of the Hon’ble Apex Court given in the case of “Abdul Raheem & other Vs. S.K. Abdul Jabbar & others”, 2009 (6,) sec, page 160. The judgment cited is in regard to a gift by a Muslim which requires registration. The cited judgment has no application on the facts & circumstances of the present case. He submitted that as far as the analogy of the judgment in regard to the testamentary disposition is concerned, it has been specifically held by the Hon’ble Supreme Court that “a testamentary disposition is limited to 1/3 of the net estate”. Since, the deceased has executed the Will in part of his property and not about of his entire estate, the said principle is not applicable. He submitted that another judgment relied by the counsel for the petitioners given in the case of “Sohal Singh & another Vs. Baksish Kaur” is also not applicable in the peculiar facts & circumstances of the case. He submitted that the petitioners are contending in the supplementary affidavit, whereby they have contended that Suit no.456 of 2008, Jia-Ul-Haq & others Vs. Walidin & another was filed for declaring the Will dated 01-05-1972 null and void and for prohibitory injunction, which has been decreed ex-parte by judgment & order dated 28-05-2009. The delay in filing the application under Order 9 Rule 13 has been allowed and the matter is listed for hearing on the application for setting aside the ex-parte decree. Walidin & another was filed for declaring the Will dated 01-05-1972 null and void and for prohibitory injunction, which has been decreed ex-parte by judgment & order dated 28-05-2009. The delay in filing the application under Order 9 Rule 13 has been allowed and the matter is listed for hearing on the application for setting aside the ex-parte decree. He submitted that the petitioners are emphasizing that the Will in favour of the respondents has been declared null & void by the civil Court. He argued that the contention of the petitioners is incorrect, as the matter is sub-judice and has no effect of res-judicata. He relied upon the decision of the Hon’ble Apex Court reported in 1998, volume 7 SCC 327 “K. Muthuswami Gounder Vs. N. Palaniappa Gounder” and submitted that the judgment of the civil Court has no implication in the present matter. He submitted that while exercising the power under Article 226/227 of the Constitution of India, vests the High Court with a power of superintendent, which is to be exercised in exceptional cases, when the High Court comes to the conclusion that the subordinate Courts have acted beyond jurisdiction and a miscarriage of justice has been occasioned. Such power, however, is not to exercise to correct a mistake of fact & law. He submitted that the writ petition is devoid of merit and as such, liable to be dismissed with cost. 5. I have considered the submission advanced by the learned counsel for the parties and have perused the papers available on record. Though, on merit, it appears that present case requires to be considered on merit but before that, Court is required to consider whether this Court should exercise writ jurisdiction or supervisory jurisdiction. No doubt, such jurisdiction can be exercised only when there seems to be apparent jurisdictional or illegal error in the impugned order taking away substantive right of the party. It has to be kept in mind that order passed in mutation proceedings is not the final order as it pertains to the mutation proceedings and the party can get its title declared from the competent Court. 6. The Allahabad High Court, in the case of “Smt. Rani Devi Vs. Board of Revenue” reported in 1999 (90) RD, page 633, has held that the writ petition arising out of mutation proceedings is not maintainable. In the case of “Ram Bharose Lal Vs. 6. The Allahabad High Court, in the case of “Smt. Rani Devi Vs. Board of Revenue” reported in 1999 (90) RD, page 633, has held that the writ petition arising out of mutation proceedings is not maintainable. In the case of “Ram Bharose Lal Vs. State of U.P.”, reported in 1991 RD, page 72, the Allahabad High Court has held that the mutation proceedings under Section 34 of the U.P. Land Revenue Act, 1900, do not decide rights or title of the parties, proceedings are just fiscal in nature, High Court need not to interfere under Article 226/227. The remedy can be availed in appropriate Court. In the case of “Kunj Bihari Vs. Board of Revenue” reported in 2001 (92) RD, page 11 166, the Allahabad High Court, considering the Division Bench judgment of same Court and relying upon some more judgments, has held that the writ petition out of mutation proceedings is not maintainable. Further, in the case of “Bindeshwari Vs. Board of Revenue U.P. at. Lucknow. & others” reported in 2002 (93) RD 134, the Allahabad High Court held that the mutation proceeding does not adjudicate the rights of the parties and writ petition is not maintainable. 7. In the present case, the Chief Revenue Commissioner as well as Commissioner was considering the order passed in mutation proceedings. Therefore, this Court is of view that remedy available before the petitioners is somewhere else and writ petition is not maintainable. It is always open for the petitioners to avail appropriate remedy available to them. 8. Apart from this, this Court also finds that factual issue like deceased Anwar-Ul-Haq has executed the Will of his entire property to the respondents or not is also involved. Legal issues raised by the parties can always be raised before the competent Court. It is also pointed out by the parties that an application under Order 9 Rule 13 of C.P.C. for recalling exparte judgment and decree dated 08.05.2009 in Suit No.456 of 2008, Jia-Ul-Haq & others Vs. Walidin & another in respect of the same property is pending. Also considering all these facts, this Court is not considering the arguments of the learned counsel for the parties on merit of the case and also not discussing the judgments cited by them on the merit of the case. 9. The petition is dismissed. 10. No order as to costs.