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2021 DIGILAW 169 (MP)

Ramkali v. Banmali

2021-02-17

G.S.AHLUWALIYA

body2021
JUDGMENT : Gurpal Singh Ahluwalia, J. 1. This petition under Article 227 of the Constitution of India has been filed against the order dated 8/8/2013 passed by Board of Revenue in Revision No.1302-1/08, thereby affirming the order dated 29/9/2008 passed by Additional Commissioner, Gwalior Division, Gwalior in case No.274/2006-07/Appeal, by which the name of the respondents have been recorded in the revenue record on the basis of a "Will". 2. The necessary facts for disposal of the present petition in short are that the husband of the petitioner, namely, Shivchanranlal had one half share in the agricultural land bearing survey nos. 1031 area 0.81 hectare, 1033 area 0.15 hectare, 1040 area 0.72 hectare, 1084 area 0.76 hectare total area 2.44 hectare situated in village Saloni Bhitari, Tahsil Bhander, District Datia. The husband of the petitioner died issue-less on 17/5/2006 due to illness. The respondents filed an application for mutation of their names on the basis of a "Will" purportedly executed by Shivcharanlal. The petitioner submitted her objection and claimed that she is the sole legal heir of deceased Shivcharanlal being his legally wedded wife and after considering the claim and objection of the parties, the Tahsildar by order dated 18/6/2007 passed in case No. 43/05-06/A-6 rejected the application filed by the respondents. 3. Being aggrieved by the order of the Tahsildar, the respondents preferred an appeal before the Court of SDO, Bhander, District Datia, which too was dismissed by order dated 14/8/2007 passed in Appeal No. 57/06-07/Appeal. 4. Being aggrieved by the order of the SDO, the respondents preferred an appeal before the Additional Commissioner, Gwalior Division, Gwalior, which was registered as Appeal No. 274/2006-07/Appeal, which was allowed after relying upon the so called "Will" executed by Shivcharanlal and the names of the respondents were directed to be mutated in the revenue records. Being aggrieved by the order of the Additional Commissioner, Gwalior Division, Gwalior, the petitioner preferred a revision before the Board of Revenue, which was registered as Revision No. 1302-1/08. However, the said revision has been dismissed by the Board of Revenue by order dated 8/8/2013. 5. Being aggrieved by the order of the Additional Commissioner, Gwalior Division, Gwalior, the petitioner preferred a revision before the Board of Revenue, which was registered as Revision No. 1302-1/08. However, the said revision has been dismissed by the Board of Revenue by order dated 8/8/2013. 5. Challenging the orders passed by the Additional Commissioner, Gwalior Division, Gwalior as well as the Board of Revenue, it is submitted by the counsel for the petitioner that the respondents had moved an application under Section 110 of MP Land Revenue Code (in short "the Code") on the strength of a forged "Will" of Shivcharanlal and, therefore, their names were wrongly mutated in the revenue records. It is further submitted that this Court by order dated 17/9/2019 passed in the case of Murari and another Vs. State of M.P. and others in Writ Petition No. 19089/2019 had held that the revenue authorities have no jurisdiction to test the correctness and genuineness of the "Will", therefore, the names of the parties cannot be mutated on the basis of a "Will" and they have a remedy to approach the Civil Court for declaration of their title. The said order passed by this Court was subject to challenge in Writ Appeal No. 1916/2019, which was dismissed by the Division Bench of this Court by order dated 14/2/2020 in the case of Murari and another Vs. State of M.P. and others reported in 2020 (4) MPLJ 139. 6. Per contra, the counsel for the respondents has supported the orders passed by the Additional Commissioner, Gwalior Division, Gwalior as well as the Board of Revenue and submitted that under Section 110 of the Code the names of those persons are required to be mutated who have acquired their right in the property and since the "Will" is also a mode of acquisition of right, therefore, the Additional Commissioner, Gwalior Division, Gwalior as well as the Board of Revenue did not commit any mistake by directing for mutation of the names of respondents in the revenue records. 7. Considered the submissions made by the counsel for the parties. 8. This Court by order dated 16/2/2021 passed in MP No. 2692/2020 (Ranjit alias Bhaiyu Mohite vs. Smt. Nandita Singh and Ors.) has held as under:- "(19) Section 31 of MPLR Code reads as under:- "31. Conferral of Status of Courts on Board and ''Revenue Officers. 7. Considered the submissions made by the counsel for the parties. 8. This Court by order dated 16/2/2021 passed in MP No. 2692/2020 (Ranjit alias Bhaiyu Mohite vs. Smt. Nandita Singh and Ors.) has held as under:- "(19) Section 31 of MPLR Code reads as under:- "31. Conferral of Status of Courts on Board and ''Revenue Officers. - The Board or a Revenue Officer, while exercising power under this Code or any other enactment for the time being in force to enquire into or to decide any question arising for determination between the State Government and any person or between parties to any proceedings, shall be a Revenue Court." (20) Thus, from the plain reading of the aforesaid Section, it is clear that the revenue authorities shall be treated as revenue court for the purposes of ''any proceedings between the parties''. The important question which involves in the interpretation of Section 31 of MPLR Code is as to whether the words ''any proceedings'' would include a question of title also or the proceedings are confined to the proceedings under the MPLR Code only. (21) If an application under Section 110 of MPLR Code is filed for mutation of the name of all the legal heirs, then it would certainly be a proceeding under the MPLR Code because the question of title is not involved and all the legal heirs of the deceased/owner will be brought on record without any further adjudication but whether the adjudication of the title of the parties on the basis of a ''Will'' can be said to be a proceeding under the Act or not, is a moot question which requires consideration. (22) Section 178 of MPLR Code reads as under:- "178. Partition of holding. (22) Section 178 of MPLR Code reads as under:- "178. Partition of holding. - (1) If in any holding, which has been assessed for purpose of agriculture under Section 59, there are more than one Bhumiswami any such Bhumiswami may apply to a Tahsildar for a partition of his share in the holding: [Provided that if any question of title is raised the Tahsildar shall stay the proceeding before him for a period of three months to facilitate the institution of a civil suit for determination of the question of title.] [(1-A) If a civil suit is filed within the period specified in the proviso to sub-section (1), and stay order is obtained from the Civil Court, the Tahsildar shall stay his proceedings pending the decision of the civil court. If no civil suit is filed within the said period, he shall vacate the stay order and proceed to partition the holding in accordance with the entries in the record of rights.] (2) The Tahsildar, may, after hearing the co-tenure holders, divide the holding and apportion the assessment of the holding in accordance with the rules made under this Code. [(3) x x x] [(4) x x x] [(5) x x x] Explanation I.-For purposes of this section any co-sharer of the holding of a Bhumiswami who has obtained a declaration of his title in such holding from a competent civil court shall be deemed to be a co-tenure holder of such holding. Explanation II.-[x x x" (23) Proviso to Section 178(1) of MPLR Code specifically provides that in a partition proceedings, if any question of title is raised by any of the parties, then the revenue authorities shall stay the proceedings for a period of three months in order to facilitate the parties for institution of a civil suit for determination of question of title. Proviso to Section 178(1) of MPLR Code makes it clear as noon day that question of determination of title is beyond jurisdiction of the revenue authorities, otherwise the Tahsildar was not required to stay the proceedings so that the party to the partition proceedings may institute a civil suit for determination of question of title. If the words "any proceedings" are read in the light of the proviso to Section 178(1) of MPLR Code, then it is clear that ''any proceedings'' would not include any proceeding involving the question of title of the parties. If the words "any proceedings" are read in the light of the proviso to Section 178(1) of MPLR Code, then it is clear that ''any proceedings'' would not include any proceeding involving the question of title of the parties. Whenever the question of title is raised or is involved, then the matter has to be adjudicated by the Civil Court and not by the revenue authorities. (24) It is submitted by the counsel for the respondent No. 1 that since in the present case, a public notice was issued, but as nobody had raised any objection, therefore, in absence of any challenge to the ''Will'', the revenue authorities did not commit any mistake by mutating the name of respondent No. 1. (25) Considered the submissions made by the counsel for the respondent No. 1. (26) It is well-established principle of law that the burden is on the propounder of the ''Will'' to prove that the ''Will'' was executed in his favour by the testator. Even if the ''Will'' is not challenged by anybody, but still the propounder of the ''Will'' has to discharge his burden and no decree can be passed even by the Civil Court merely on the ground that the respondents have chosen not to appear before it or have failed to file their written statement as provided under Order 8 Rule 10 CPC." 9. Further, the similar view which was taken by this Court on the earlier occasion has also been affirmed by the Division Bench of this Court in the Writ Appeal in the case of Murari (supra). Thus, it is clear that the revenue authorities have no jurisdiction to decide the correctness and genuineness of a "Will" and if the propounder of the "Will" wants to take advantage of the "Will", then he has to get his title declared from the Civil Court of competent jurisdiction. 10. It is next contended by the counsel for the petitioner that the "Will" purportedly executed by Shivcharanlal is a forged "Will". 11. 10. It is next contended by the counsel for the petitioner that the "Will" purportedly executed by Shivcharanlal is a forged "Will". 11. So far as the contention of the counsel for the petitioner with regard to the nature of the "Will" is concerned, this writ petition has arisen out of a revenue proceeding and once this Court has held that the revenue authorities have no jurisdiction to adjudicate the correctness and genuineness of a "Will", then any observation on the genuineness of the "Will" would certainly prejudice the case of the respondents in case if they prefer a Civil Suit for declaration of their title. Even, after holding that the revenue authorities have no jurisdiction to mutate the names of respondents on the strength of a "Will", it is also not expected from this Court to make any observation on the genuineness and correctness of the "Will". 12. Accordingly, the order dated 8/8/2013 passed by Board of Revenue and the order dated 29/9/2008 passed by Additional Commissioner, Gwalior Division, Gwalior are hereby set aside and the revenue authorities are directed to restore the names of the petitioner in the revenue records with immediate effect. 13. However, liberty is granted to respondents that if they so desire, then they may file a suit before the competent Court of civil jurisdiction for declaration of their title. 14. With aforesaid observations, the petition is finally disposed of.