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2020 DIGILAW 252 (MP)

MURARI v. STATE OF M. P.

2020-02-14

RAJEEV KUMAR SHRIVASTAVA, SHEEL NAGU

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JUDGMENT RAJEEV KUMAR SHRIVASTAVA, J. – This writ appeal under section 2(1) of Madhya Pradesh Uchcha Nyayalaya Ko Appeal Adhiniyam, 2005, has been filed against the order dated 17-9-2019 passed in Writ Petition No. 19089/2019, whereby the writ petition filed by the appellants/petitioners has been dismissed. 2. Brief facts of the case are that the appellants/petitioners had filed an application for mutation of their names on the basis of will executed by Atibal. The application filed by the petitioners was opposed by the respondents No. 5 to 7 and they also relied upon a registered Will dated 13-7-1994 executed by Atibal in their favour. The Tahsildar after recording the evidence, came to the conclusion that the petitioners have failed to prove the Will, however, the names of respondents No. 5 to 7 were recorded being the legal representatives of Late Atibal. Being aggrieved by the order of the Tahsildar, the appellants/petitioners filed an appeal, which was allowed by the SDO, Morena by order dated 21-1-2019 passed in case No. 135/17-18. The order of the SDO was challenged by respondents No. 5 to 7 by filing an appeal before the Court of Additional Commissioner, Chambal Division, Morena. The said appeal has been allowed by order dated 26-8-2019 passed in case No.78/18-19/Appeal on the ground that since the matter is subjudice before the Civil Court, therefore, the mutation shall be subject to the final outcome of the Civil Suit. The order of Additional Commissioner, Chambal Division, Morena was challenged in the Writ Petition, which has been dismissed by the impugned order. 3. Learned counsel for the appellants submitted that since the Civil Suit has been filed, therefore, the Additional Commissioner committed a mistake by setting aside the order of the SDO. In fact, he should have dismissed the appeal by affirming the order of the SDO. It has further been submitted that the learned Writ Court has made adverse remark and wrongly interpreted the legal aspect that civil suits are pending and temporary injunction is granted in favour of petitioners and against the respondents No. 5 to 7. 4. Heard learned counsel for the parties and perused available records. 5. Learned Writ Court in the impugned order has observed as under : – “It is fairly conceded by the counsel for the petitioners that the petitioners have filed a Civil Suit for declaration of their title on the basis of Will. 4. Heard learned counsel for the parties and perused available records. 5. Learned Writ Court in the impugned order has observed as under : – “It is fairly conceded by the counsel for the petitioners that the petitioners have filed a Civil Suit for declaration of their title on the basis of Will. On an application filed by the petitioners, a temporary injunction has been issued against the respondents No. 5 to 7, thereby temporarily restraining them from alienating the property in dispute and the parties were also directed to maintain the status quo. So far as the question of alienation and the question of mutation are concerned, they are two different aspects. Mutation is done for the fiscal purposes. It is admitted by the counsel for the petitioners that the names of respondents No. 5 to 7 have been mutated being the legal representatives. Under these circumstances, this Court is of the considered opinion that the Additional Commissioner, Chambal Division Morena did not commit any mistake in setting aside the order passed by the SDO, Morena thereby affirming the order of the Tahsildar. No jurisdictional error could be pointed out by the counsel for the petitioners.” 6. The controversy involved in the present matter relates to title based on Will, which is purely subject-matter of Civil Court and can only be decided by the Civil Court, with the help of evidence adduced before it, by examining the attesting witnesses. It is also held in Rajinder Singh and another vs. Financial Commissioner (decided by Punjab and Haryana High Court in Writ Petition No. 3821/2011) that validity of Will can be decided by the Civil Court, which is the exclusive domain of Civil Court and this cannot be decided by the Revenue Courts. 7. Therefore, in our considered opinion, learned Writ Court has not committed any error in giving the aforesaid finding which would warrant interference by this Court. 8. Resultantly, this writ appeal sans substance and is hereby dismissed.