Hon’ble Rajan Roy, J.—This is a writ petition under Article 226 of the Constitution of India challenging the orders passed by the Revenue Authorities in Mutation Proceedings under Section 34 of the Land Revenue Act 1901 (hereinafter referred as ‘’Act 1901') and appellate and revisional proceedings arising therefrom.

2. The land in question was recorded in the name of Smt. Tapeshwari Kunwari, the recorded tenure holder. On her death proceedings for recording the name of heirs in P.A.-11 were initiated, but objections were filed whereupon the proceedings took place under Section 34 of the Act 1901. As many as five objections were filed. The father of the petitioner herein claimed mutation on the basis of an unregistered Will dated 28.6.1996, whereas one Ram Harakh Singh claimed the same on the basis of another unregistered Will dated 27.6.1996. After the death of Ram Harakh Singh as per the Will the land has been recorded in the name of the opposite party No. 4, Educational Institution. Smt. Tapeshwari Kunwari died on 29.6.1996. All the three Courts below have Ruled against the petitioner.

3. The contention of Sri I.D. Shukla, learned counsel for the petitioner in nutshell is that the Courts below were persuaded to rule in favour of Ram Harakh Singh and opposite party No. 4 only on account of a Probate having been submitted by him in respect of his Will, whereas the petitioner or his father were not even made parties therein, contrary to Section 283 of the Indian Succession Act and by concealing the pendency of the dispute before the Mutation Court, therefore, the said Probate did not have binding effect upon the petitioner and his predecessor in interest, but this aspect was ignored by the Revenue Courts. It was also contended that under Section 34 and 35 of the Act 1901 in the event of a dispute the basis for mutation has to be the actual physical possession as is mentioned therein, but this aspect has also been ignored as admittedly neither the respondent nor Ram Harakh Singh was in possession at the relevant time. The Mutation Court committed a gross error in embarking on a lengthy exercise as is undertaken by Regular Courts oblivious of the fact that the proceedings before it were summary proceedings. The Will in favour of the petitioner’s father being later in point of time prevailed over the earlier Will, but this aspect was ignored.

4. Sri A.S. Chaudhary, learned counsel appearing for the opposite party No. 4 contended that the Probate issued by the competent Court is a judgment in rem, which was binding on the Mutation Courts, therefore, they rightly ruled in favour of his client. The possession referred in Section 34 and 35 is not only actual physical possession, but also constructive possession. The Will dated 28.6.1996 in favour of the petitioner’s father Shiv Ram Singh could not be proved, therefore, he said, that the petitioner, who had lost from all the Courts below, was not entitled to any relief.

5. The opposite party Nos. 5 and 6 are proforma parties, therefore, notices have not been issued to them.

6. The dispute herein is between the petitioner and opposite party No. 4. The petitioner’s predecessor-in-interest i.e. his father Shiv Ram Singh claimed mutation on the basis of unregistered Will dated 28.6.1996. Ram Harakh Singh claimed mutation on the basis of another unregistered Will, earlier in point of time, dated 27.6.1996 in respect of which he had obtained a Probate. As per the will, after the death of Ram Harakh Singh the property was to devolve upon the educational institution i.e. opposite party No. 4 herein.

7. No doubt mutation proceedings are summary proceedings, but if a report is filed under Section 33 read with Section 34 of the Act 1901, especially when a dispute arises thereby attracting Section 35 and the claim is on the basis of a Will, a prima facie view as to its genuineness has to be formed by the Mutation Courts.

8. The possession referred in the aforesaid provision is not only act