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2014 Supreme(MP) 163
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Sujoy Paul, J.
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Rajalal and another v. Komal Singh and another
fjV ;kfpdk Øekad 4542 lu~ 2012 ¼Xokfy;j½ jktLo eaMy] e-iz- }kjk ikfjr vkns’k fnukad 3-4-2012 ds fo#)( fu.khZr fnukad 4-3-2014A
Writ Petition No. 4542 of 2012 (Gwalior); against order dated 3.4.2012 passed by Board of Revenue M.P., decided on 4.3.2014.
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B. S. Dhakad for petitioners; S. S. Jadon for respondents.
Headnote:¼1½ foy rFkk varj.k & ls vfHkizsr & foy varj.k ugha gS & foy ds vk/kkj ij & foydrkZ dh e`R;q ds i'pkr~ foy /kkjd dks fgr U;kxr gksxkA ¼1997½ 2 ,l lh lh 387 vuqlfjrA , vkb vkj 2001 dukZVd 395 voyafcrA ¼iSjk 8 ls 11
¼2½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 165¼7&[k½ rFkk 164 & dk ykxw gksuk & Hkwfe dk iêk /kkjd & HkwfeLokeh gks x;k & mlds }kjk foy fu”ikfnr dh xbZ & foy varj.k ugha & dyDVj dh iwoZ vuqKk dh vko’;drk ugha & /kkjk 165¼7&[k½ ds mica/k vkdf”kZr ugha gksrs & foy ds ekeys ds laca/k esa /kkjk 164 ds mica/k ykxw gksaxs & vij vk;qDr rFkk jktLo eaMy us /kkjk 165¼7[k½ ds mica/k ykxw djus esa =qfV dkfjr dh gSA
;g Li”V gS fd tc mÙkjkf/kdkj ds vf/kdkj ds U;kxeu dks foy ds vk/kkj ij izo`Ùk djkuk pkgk gS] bls varj.k ds izdj.k ds :i esa ugha ekuk tk ldrk vkSj blfy;s] lafgrk dh /kkjk 165 ykxw ugha gksxhA ¼iSjk 13
bl izdj.k esa vij vk;qDr rFkk eaMy us lafgrk dh /kkjk 165¼7&[k½ ykxw djus esa =qfV dh gSA ;g izdj.k foy ij vk/kkfjr izdj.k gksus ls] /kkjk 164 ykxw gksxh rFkk /kkjk 165¼7[k½ ykxw ugha gksxhA 2009 ¼3½ ,e ih ,p Vh 68 ¼NÙkhlx<+½ voyafcrA 2002 jk fu 250 rFkk 2002 jk fu 286 izHksfnrA ¼iSjk 14
¼3½ Hkkjr dk lafo/kku & vuq-227 & dh O;kfIr & foy dh vlfy;r vkSj ‘kq)rk & ;s rF;ksa ds iz’u gSa & fjV vf/kdkfjrk esa gLr{ksi visf{kr ugha & ,sls iz’uksa dk l{ke vf/kdkfjrk ds U;k;ky; ds le{k lkfcr fd;k tkuk visf{kr gSA ¼iSjk 15
(1) Will and Transfer -- means -- Will is not transfer -- on basis of Will -- interest will be devolved to Will holder after demise of testator. (1997)2 SCC 387 followed. AIR 2001 Karnataka 395 relied on.
[Paras 8 to 11
(2) Land Revenue Code, 1959 (M.P.) -- Ss. 165(7-B) and 164 -- applicability of -- patta holder of land -- became Bhumiswami -- Will executed by him -- Will is not transfer -- need not to prior permission of Collector -- provisions of section 165(7-B) not attracted -- regarding matter of Will -- provisions of section 164 will be applicable -- Additional Commissioner and Board of Revenue have committed error in applying section 165(7-B).
It is clear that when right of succession is sought to be enforced on the basis of devolution, it cannot be treated as a case of transfer and therefore, section 165 of the Code will have no application. [Para 13
Additional Commissioner and Board have erred in applying section 165 (7-B) of the Code in the present case. Present case, being a case based on Will, section 164 will apply and section 165 (7-B) will have no application. 2009(3) MPHT68 (CG) relied on. 2002 RN 250 and 2002 RN 286 distinguished. [Para 14
(3) Constitution of India -- Art. 227 -- scope of -- genuineness and correctness of Will -- these are questions of facts -- no interference called for in writ jurisdiction -- such questions are required to be proved before Court of competent jurisdiction. [Para 15
1. The petitioners by invoking jurisdiction of this Court under Article 227 of the Constitution has challenged the order of Additional Commissioner, Gwalior dated 25.6.2010 (Annexure P/2) and also the order of Board of Revenue (Board) dated 3.4.2012 (Annexure P/1).
2. The case of the petitioner is that the land at survey No. 211/1 situated in village Barkheda, Tahsil and District Ashok Nagar was owned by Janak Singh. Janak Singh was the “Bhoomiswami” of the said land. Janak Singh was unmarried and therefore, had no issues. It is projected that Chhogi Lal, father of the present petitioners, was residing with said Shri Janak Singh. Chhogi Lal was taking care of Janak Singh, therefore, Janak Singh executed a Will dated 26.1.1998 in favour of Chhogi Lal. After the death of Janak Lal, Chhogi Lal prefered an application for mutation on the basis of said Will. The application was preferred before the Gram Panchayat. The Gram Panchayat by its resolution No.1/25.2.2004 sent the matter to Tehsil Court. Application was sent to Tahsil Court because the mutation was disputed. At this stage, Chhogi Lal preferred second application before Tahsildar which was registered as case No.14/A-6/ 2003-04. It is contended by Shri B.S. Dhakad, learned counsel for the petitioner that on this application, advertisement was issued and objections were invited. In turn, respondents No.1 & 2 submitted their objections.
3. The Tahsildar after recording evidence passed the order dated 1.7.2004 (Annexure P/7) and mutated the land in favour of Chhogi Lal on the basis of said Will. Respondents feeling aggrieved and dissatisfied with the said order (Annexure P/7), preferred an appeal before Sub Divisional Officer (SDO) which was registered as case No.123/03-04/appeal. This appeal was rejected on 27.2.2006.
4. The respondents assailed the order of SDO by preferring second appeal before Additional Commissioner (Revenue), Gwalior Division. This second appeal was registered as case No.376 / 05-06/Appeal. During the pendency of said appeal, the original applicant, father of the present petitioners, Chhogi Lal expired. The respondents herein impleaded the present petitioners as legal representatives in the said appeal which was pending at the relevant point of time before Additional Commissioner. Additional Commissioner by order dated 25.6.2010 allowed the appeal and set aside the orders of the Courts below and remitted the matter back with certain directions. The present petitioners preferred a revision before the Board which was registered as case No. 999-2/2010. Board, by order dated 3.4.2012 rejected the revision and confirmed the order of the Additional Commissioner. Order of Additional Commissioner and the Board, aforesaid, are called in question in the present petition.
5. Criticizing the oder of the Additional Commissioner, it is contended by Shri Dhakad that Janak Singh was the “Bhoomiswami”. “Bhoomiswami” had a right to execute the Will in favour of Chhogi Lal. Because of execution of said Will Chhogi Lal became the Bhoomiswami. The petitioners, being legal representatives are entitled to enjoy their right on the said land. He submits that authorities below have erred in holding that even if Bhoomiswami rights accrued on “Patta land”, the said land cannot be transferred in favour of anybody, unless prior permission of the competent authority is there. He submits that section 164 of Land Revenue Code (Code) will apply and section 165 of the said Code has no application.
6. Per Contra, Shri S.S. Jadon, Advocate for the respondents supported the orders impugned and submits that as per 165 (7-b) of the Code, land could be transferred only after the permission of the Collector. In support of his contention he relied on 2002 RN 250 (Mulayam Singh and another v. Budhuwa Chamar and others), 2007 RN 218 (Raheesh Khan v. Suresh Chand and others) and 2002 RN 286 (Govind Vallabh Pant Grih Nirman Coop. Society v. Shri Ram Janki Mandir and others).
7. I have heard lea
