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2024 DIGILAW 2217 (ALL)

Gagan Chand v. State of U. P.

2024-10-17

SAURABH SHYAM SHAMSHERY

body2024
JUDGMENT : SAURABH SHYAM SHAMSHERY, J. 1. Heard Sri R.C. Singh, learned Senior Advocate assisted by Sri Rituvendra Singh Nagvanshi, learned counsel for petitioners, Sri Kaushal Kishore Mani, learned counsel for Gaon Sabha and Sri H.N. Singh, learned Senior Advocate assisted by Sri Pranjal Singh, learned counsel for respondents. 2. Present case is arising out of a mutation proceedings on basis of rival wills. 3. On basis of record, one Harlal has executed four wills before he died, details thereof are mentioned below: (a) first registered will dated 03.04.1987 was executed in favour of his daughter Savitri Devi. (b) second registered will dated 09.09.1991 whereby first will dated 03.04.1987 was cancelled and it was executed in favour of Gagan Chand, legal heirs of his son. (c) third unregistered will dated 12.12.1992 was executed in favour of his daughter Savitri Devi without referring earlier will dated 09.09.1991, though referred will dated 03.04.1987. (d) fourth unregistered will dated 14.07.1993 was executed in favour of daughter in law of his son. 4. Tehsildar (J), Jansar, Muzaffarnagar vide order dated 31.05.2013 decided the suit for mutation on basis of second registered will dated 09.09.1991 whereby earlier will dated 03.04.1987 was revoked. 5. Being aggrieved by said order, contesting respondents no. 5 and 6 have filed an appeal which was dismissed vide order dated 29.01.2018. This led to filing of a revision at the behest of private respondents which was allowed by order dated 18.05.2022 and orders dated 31.05.2013 and 29.01.2018 were set aside and unregistered will dated 12.12.1992 was considered to be the valid will. 6. In aforesaid circumstances, present petitioners have filed a revision petition before Board of Revenue which was dismissed vide order dated 13.06.2024. 7. Issue before this Court is two folds, firstly whether mutation proceedings could be carried out on the basis of rival submissions on disputed wills, without being tested in a Civil Court and secondly, whether in the given facts and circumstances of the case, revisional Court has acted beyond its jurisdiction or not, while interfering with two concurrent findings of trial court and first appellate Court. 8. Supreme Court in the case of Jitendra Singh vs. State of Madhya Pradesh and others, Special Leave Petition (C) No. 13146 of 2021 decided on 6th September 2021 has held that mutation could not be made on the basis of will before it is tested by a competent Civil Court. 8. Supreme Court in the case of Jitendra Singh vs. State of Madhya Pradesh and others, Special Leave Petition (C) No. 13146 of 2021 decided on 6th September 2021 has held that mutation could not be made on the basis of will before it is tested by a competent Civil Court. Relevant part thereof is mentioned below: “6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) by LRs. (1997) 7 SCC 137 , this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter. 6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186 , it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only “fiscal purpose” i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58 ; Faqruddin v. Tajuddin, (2008) 8 SCC 12 ; Rajinder Singh v. State of J&K, (2008) 9 SCC 368 ; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689 ; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342 ; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co. (2019) 3 SCC 191 ; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259 and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70 . 7. (2019) 3 SCC 191 ; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259 and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70 . 7. In view of the above settled proposition of law laid down by this Court, it cannot be said that the High Court has committed any error in setting aside the order passed by the revenue authorities directing to mutate the name of the petitioner herein in the revenue records on the basis of the alleged will dated 20.05.1998 and relegating the petitioner to approach the appropriate court to crystalise his rights on the basis of the alleged will dated 20.05.1998. We are in complete agreement with the view taken by the High Court. 8. The special leave petition is accordingly dismissed.” 9. In the present case, all the Courts have not followed said observation despite that Wills were disputed and that none of parties have relegated themselves to Civil Court to establish their right on the basis of rival wills. 10. Section 33, 34 and 35 of the Act are in regard to mutation in case of succession and transfer. Section 35(c) provides that if the case is disputed, Tahsildar shall decide the dispute accordingly, however, nature of the dispute remains a relevant factor which is in the present case is disputed wills. 11. So far as other issue is concerned, it is not disputed that order passed by the trial Court and the First Appellate Court were interfered by the revisional Court which was upheld by the Board of Revenue. The Tahsildar has considered the evidence produced to prove rival wills and reasons assigned in the order dated 31st May 2013 whereby mutation was carried out on the basis of registered will dated 9th October 1991. Relevant part thereof is mentioned below: 12. The first Appellate Court has also considered rival submissions and rejected the same on the ground that registered will dated 9th October 1991 was proved on the basis of evidence. Relevant part thereof is mentioned below: 13. Additional Commissioner in the revision interfered with concurrent findings and re-appreciated the evidence so much as that unregistered will dated 12th December 1992 was considered to be a valid will. Its relevant part is mentioned below: 14. Learned advocates for parties have made submissions in respect of their wills and that their respective wills were proved in accordance with law. 15. Its relevant part is mentioned below: 14. Learned advocates for parties have made submissions in respect of their wills and that their respective wills were proved in accordance with law. 15. Learned advocate for petitioner has supported the orders passed by the trial Court and the First Appellate Court and that registered will was rightly considered to be a valid will. 16. Per contra, learned advocate for respondents has supported the orders passed by the Revisional Court that it has rightly interfered there was a material irregularity. 17. Supreme Court in the case of Madan Lal Vs. Shyam Lal, (2002) 1 SCC 535 has held that words “material irregularity in exercise of jurisdiction” by the revisional Court do not cover either error of fact or law. Supreme Court in the case of Thankamony Amma and others v. Omana Amma N. and others, (2020) 19 SCC 254 has reiterated that in the revisional jurisdiction, a Court could not reappreciate the evidence and could not disturb concurrent finding rendered by the Courts below. 18. Similarly, Supreme Court in the case of Yunus Ali (Dead) through his LRs. vs. Khursheed Akram, (2008) 7 SCC 293 has held that in the revisional jurisdiction, Court cannot re-appreciate the evidence and cannot set aside concurrent finding of Courts below after taking a different view of evidence. 19. Supreme Court in the case of K.M. Manjunath vs. Erappa G. Dead though LRs. 2022 (3) ICC 650 has similarly stated that in case another view may be possible based on the evidence on record but it could not be a ground for revisional Court to interfere with an order of trial Court in exercise of its revisional jurisdiction. 20. In Masjid Kacha Tank, Nahan v. Tuffail Mohammed, 1991 Supp. (2) SCC 270, Supreme Court has also stated that interference in such circumstances could be exceptional and only when findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below. 21. As referred above, trial Court has considered the evidence and returned a finding that registered will was proved. (2) SCC 270, Supreme Court has also stated that interference in such circumstances could be exceptional and only when findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below. 21. As referred above, trial Court has considered the evidence and returned a finding that registered will was proved. It was upheld by the first appellate Court, therefore it could not be a case that the evidence has not been considered by the trial court and the first appellate Court, therefore, interference by the revisional Court as well as by the Board of Revenue under revision jurisdiction was beyond its jurisdiction since it has interfered with concurrent finding without any circumstances i.e. if the findings are perverse or there was non appreciation or non consideration of material of evidence rather it was a case where revisional Court has taken a possible view to be more relevant. 22. In above referred circumstances, both revisional Court as well as Board of Revenue have committed an error not only by not taking note that mutation may not be carried out on the basis of disputed wills as well as both Courts have acted beyond their jurisdiction, therefore, impugned order dated 13.06.2024 passed by Board of Revenue in Case No. REV/1142/2022/Muzaffarnagar (Computerized No. R20220955001142) (Gagan Chand vs. Ved Prakash) Under Section 219 UP Land Revenue Act, 1901 is hereby set aside and matter is remitted back to decide it afresh in not only in regard to its revisional power but to consider and in the light of judgment of Supreme Court in Jitendra Singh (supra) expeditiously within 6 months after hearing rival parties. 23. Writ petition is disposed of with above observations.