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2017 DIGILAW 1302 (RAJ)

Balraj Singh S/o Shri Pragash Singh @ Prakash Singh v. Hosiyar Singh S/o Shri Jagar Singh

2017-05-22

ARUN BHANSALI

body2017
ORDER : Arun Bhansali, J. This writ petition has been filed by the petitioners aggrieved against the order dated 19/4/2017 passed by the Board of Revenue, whereby, the revision petition filed by the respondent Hosiyar Singh has been accepted and the order dated 21/8/2007 passed by the Divisional Commissioner, Bikaner has been set aside. 2. The land in question was recorded in the name of Jagar Singh. After the death of Jagar Singh, based on a Will dated 5/2/1994 executed by Jagar Singh in favour of petitioners, the land was mutated in the name of the petitioners. On the said mutation entry being challenged, by mutation no. 59 dated 21/3/2005 the same was mutated in favour of respondents Hosiyar Singh, Pragash Singh and Smt. Gurnam Kaur - legal representatives of Jagar Singh. 3. Feeling aggrieved, the petitioners filed appeal before the Addl. Collector, Suratgarh District Sriganganagar. The Addl. Collector by his judgment dated 5/5/2006 came to the conclusion that the Will was not registered and was only notarized and was challenged and, therefore, the propounders of the Will were required to file proceedings under Section 88 of the Rajasthan Tenancy Act, 1955 ('the Act, 1955') before the competent court and seek a declaration and based on the said observations rejected the appeal. 4. Feeling aggrieved, the petitioners filed second appeal before the Divisional Commissioner, Bikaner. The Divisional Commissioner, though made observations that the Will was produced after two years and eight months after the death, the appellants were residents of Gharsana, the Will was executed at Anoopgarh and the attesting witnesses were from different place and, therefore, the Will was surrounded by suspicious circumstances, however accepted the appeal and set aside the mutation dated 21/3/2005 and order of the Addl. Collector dated 5/5/2006 and observed that if the respondents claim any right in the land in question, they can seek declaration from the competent court. 5. Feeling aggrieved, Hosiyar Singh filed revision before the Board of Revenue. The Board of Revenue by its judgment dated 19/4/2017, came to the conclusion that though the Divisional Commissioner himself came to the conclusion that the Will was disputed, the mutation has been cancelled. 5. Feeling aggrieved, Hosiyar Singh filed revision before the Board of Revenue. The Board of Revenue by its judgment dated 19/4/2017, came to the conclusion that though the Divisional Commissioner himself came to the conclusion that the Will was disputed, the mutation has been cancelled. It was further observed that where the Will is disputed, the affected party is required to file a regular suit and seek determination of its rights from the competent court and the Divisional Commissioner by ignoring the said aspect committed error of law and consequently set aside the order passed by the Divisional Commissioner. 6. It is submitted by learned counsel for the petitioners that the Board of Revenue was not justified in setting aside the order passed by the Divisional Commissioner and it was for the respondents to seek declaration as the Will was executed by Jagar Singh in favour of the petitioners. It was submitted that the deceased Jagar Singh was living with the petitioners, who are grand children of Jagar Singh and, therefore, there was no reason to question the validity of the Will. It was prayed that the order passed by the Board of Revenue be set aside and that of Divisional Commissioner be restored. 7. I have considered the submissions made by learned counsel for the petitioners and have perused the material available on record. 8. A bare look at the findings recorded by the Divisional Commissioner, which order is sought to be sustained by the petitioners, would reveal that the foundational document in favour of the petitioners i.e. the Will said to have been executed by Jagar Singh has been found as suspicious/disputed by the Divisional Commissioner himself, who, as already noticed hereinbefore, has recorded reasons for such suspicion regarding the Will, however, in the operative portion of the order, the mutation made in favour of the natural heirs i.e. sons and daughter of the deceased Jagar Singh, and the order passed by the Addl. Collector have been set aside. 9. Collector have been set aside. 9. The Board of Revenue while discussing the said aspect specifically noticed the said contradiction in the order, wherein, the basis for accepting the appeal, though was found against the petitioner, the appeal filed by them was allowed by the Divisional Commissioner and, thereafter, noticing the settled principles regarding the burden on the propounder of the Will to get the Will established/proved before the competent authority, allowed the revision petition filed by the respondents. 10. The observations made by the Board of Revenue and the findings recorded by it are in consonance with the material available on record and the settled principles of law. 11. Learned counsel for the petitioners failed to indicate any perversity in the said findings of the Board of Revenue so as to require interference under Article 227 of the Constitution of India. 12. In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed.