The sufficiency of opportunity of hearing and adherence to proper procedure in mutation applications based on unregistered Will-deeds.

JUDGMENT :

1. Heard Shri R.C. Singh learned Senior Counsel assisted by Shri Amit Kumar learned counsel for the petitioner and Shri Ashish Agarwal as well as Ms. Rupal Agarwal, learned counsel for the respondent No. 3 and learned Standing Counsel for the State-respondents.

2. The brief facts of the case are that father of the petitioner, namely, Late Hari Lal was recorded as tenure-holder of Khata No. 8, Plot No. 311 area 0.120 Hectare, Plot No. 314 area 0.0510 Hectare 372Ka area 0.510 Hectare, 318/706 area 0.130 Hectare, Khata No. 9, Plot No. 313 area 4.6920 Hectare and Khata No.10, Plot No. 374 area 0.9480 Hectare, situated at Village-Kherli Hafizpur, Pargana Dankaur, Tehsil Dadari, District Gautam Buddha Nagar. Petitioner’s father was not satisfied with his son, namely, Yogesh and his family members, hence he was residing with the petitioner who is daughter. Accordingly, petitioner's father, Hari Lal executed an unregistered Will-deed dated 10.12.1990 in favour of the petitioner. Petitioner’s father, Hari Lal has died on 11.03.1992. Petitioner filed an application for mutation on 08.11.2016 that is about after 24 years in which respondent No. 3 filed an objection that she is owner of the land in dispute being legal heir of the Late Hari Lal. Tehsildar, allowed the petitioner’s application for mutation vide order dated 05.11.2019. Feeling aggrieved by the order dated 05.11.2019 passed by Tehsildar, respondent No. 3 filed an appeal before the Sub-Divisional Officer, which was allowed vide order dated 24.12.2020 and matter has been remanded back before the trial Court for fresh decision. Against the order dated 24.12.2020 passed by respondent No. 2, petitioner has filed a revision before the respondent No. 1, which was dismissed by the Board of Revenue vide order dated 14.12.2022 upholding the remand order dated 24.12.2020, hence this writ petition.

3. Counsel for the petitioner submitted that petitioner has applied for mutation on the basis of unregistered Will-deed dated 10.12.1990 executed by Late Hari Lal in favour of the petitioner, as such, the mutation application was rightly allowed by the Tehsildar. He further submitted that the Will-deed dated 10.12.1990 was also proved before the Tehsildar according to the provisions of Section 68 of the Indian Evidence Act but without considering the aforementioned aspect of the case, the appeal has been allowed and the matter has been remanded back for fresh decision of the mutation case which is abuse of process of law. He further submitted that appellate Court has exceeded its jurisdiction in deciding the appeal, as such, the same was challenged in revision before the Board of Revenue but Board of Revenue has arbitrarily dismissed the revision.

4. On the other hand, counsel for the respondent No. 3 submitted that Will-deed executed in favour of the petitioner is surrounded by suspicious circumstances, as such, no reliance can be placed upon the same and mutation order cannot be passed on the basis of alleged Will-deed. He further submitted that recorded tenure-holder Hari Lal died on 11.03.1992 but the petitioner has filed the mutation application after 24 years, which also makes the Will-deed in question suspicious. He further submitted that respondent No. 3 is entitled to be recorded on the basis of succession and the petitioner is not entitled to be recorded on the basis of alleged Will-deed dated 10.12.1990. He further submitted that after death of Hari Lal, name of the Yogesh (father of respondent No. 3) was recorded and after death of father of respondent No. 3, name of his wife was recorded and after death of the wife of Yogesh, the name of the respondent No. 3 along with his brother Aditya was recorded, after death of Aditya, the name of respondent No. 3 is alone recorded in the revenue records. He further submitted that in any case writ petition arises out of mutation proceeding under Article 226 of the Constitution of India is not maintainable in view of the decision re