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2019 Supreme(MP) 295
IN THE HIGH COURT OF MADHYA PRADESH
Vishal Mishra, J.
Pehalvan Singh and another v. Sitaram and another
Writ Petition No. 225 of 2016 (Gwalior); against the order dated 3.12.2015 passed by the Board of Revenue, Gwalior;
Decided on 4.7.2019
Abhishek Bindal for petitioners; Ashish Shrivastava for respondent No. 1; Anand Bhardwaj, Government Advocate for
respondent No. 2/State.
Headnote:
¼1½ foy & foy dh ekSfydrk ds laca/k esa vkifÙk;ka & jktLo U;k;ky;ksa dks ,sls fook|d dk fofu'p; djus dh vf/kdkfjrk ugha & foy dh ekSfydrk dk ijh{k.k dsoy flfoy U;k;ky;ksa }kjk fd;k tk ldrk gSA 1990 ts ,y ts 224] 1990 ¼2½ eŒÁŒ ohDyh uksV~l 141 ¼mPpre U;k;ky;½ rFkk fjV ;kfpdk Øekad 1820@2011 fu.khZr fnukad 6-4-2017 fufnZ"VA ¼iSjk 10½
¼2½ Hkw&jktLo lafgrk] 1959 ¼eŒçŒ½ & /kkjk 110 & foy ds vk/kkj ij ukekarj.k dk nkok & vkifÙk;ka ÁLrqr ugha & foy ds vk/kkj ij ukekarj.k fd;k tk,xk & fdarq tc foy dh ekSfydrk ds laca/k esa vkifÙk;ka ÁLrqr dh xbZ gksa & jktLo Ákf/kdkfj;ksa dks foy dh ekSfydrk dk ijh{k.k djus dh vfèkdkfjrk ugha & foy dh ekSfydrk dk ijh{k.k dsoy flfoy U;k;ky;ksa }kjk fd;k tk ldrk gS & jktLo eaMy }kjk ikfjr ukekarj.k vkns'k vikLr fd;k x;kA ¼iSjk 10 ,oa 13½
(1) Will -- Objection regarding genuineness of Will -- Revenue Courts have no jurisdiction to decide such issue -- genuineness of Will can only be examined by civil Courts. 1990 JLJ 224, 1990 (2) MPWN 141 (SC) and W. P. No. 1820/2011; decided on 6.4.2017 referred to. [Para 10]
(2) Land Revenue Code, 1959 (M. P.) -- S. 110 -- claim of mutation on basis of Will -- no objections filed -- mutation will be made on basis of Will -- but once objection are filed regarding genuinesses of Will -- revenue authorities have no jurisdiction to check genuineness of Will -- genuineness of Will can only be examined by civil Courts -- mutation order passed by Board of Revenue set aside. [Paras 10 & 13]
ORDER
1. With consent, heard finally.
2. The present petition has been filed being aggrieved by the order dated 3.12.2015 passed by Board of Revenue, Gwalior, whereby, learned Board of Revenue has set aside the order dated 30.9.2011 passed in Appeal and has affirmed the order passed by the Sub Divisional Officer, Ashoknagar, dated 6.8.2009.
3. It has been argued by learned counsel for petitioner that property in dispute situated in Village, Masidpur, Tahsil, Ashoknagar, wherein Survey No. 488 area 0.470 Hectare and Survey No. 489 area 0.990 Hectare, total area 1.460 Hectare belongs to Khoob Singh S/o Ganesh Rama and after the death of Ganesh Ram, the respondent No. 1 filed an application for mutation before the Tahsildar on the basis of will dated 31.7.2008. The Tahsildar has rejected the application for mutation on the basis of will and entered the names of legal heirs of late Khoob Singh in the Revenue Records.
4. An appeal has been preferred against the order dated 31.7.2008 before the Sub Divisional Officer, Ashoknagar and the learned Sub- Divisional Officer, vide its order dated 6.8.2009 has allowed the appeal and order passed by the learned Tahsildar, Ashoknagr, was set aside and has directed for mutation of the name in pursuance of the will. An appeal was preferred against the order passed by the learned SDO, Ashoknagar which was filed before the Additional Commissioner Gwalior, Division Gwalior and the same was finally heard and decided vide order dated 30.9.2011 and order passed by the learned SDO dated 6.8.2009 was found to be illegal and accordingly, the same was set aside. The appeal was allowed, against the order passed by the Additional Commissioner, Gwalior dated 30.9.2011, a revision was preferred before the Board of Revenue, the learned Board of Revenue vide order dated 3.12.2015 has allowed the revision whereby, the order dated 30.9.2011 passed by the learned Additional Commissioner, Gwalior, Division Gwalior was set aside and order passed by the SDO, Ashoknagar, dated 6.8.2009 was affirmed. Being aggrieved by the same, a writ petition has been preferred.
5. Learned counsel for petitioner has argued that the Board of Revenue are having no jurisdiction to grant stamp of approval to thewill. The jurisdiction lies only with the Civil Courts. He has relied upon the judgment rendered by the Hon'ble apex Court in the case of Omprakash v. Govind, reported in 1990 JLJ 224 and Rampiari v. Bhagwant, reported in 1990(2) MPWN 141 and has prayed for quashment of the order passed by the Board of Revenue and the order passed by the Additional Commissioner, Gwalior.
6. Per contra, learned counsel for respondent/state as well as respondent No.1 have opposed the writ petition and has contended that the order passed by the Board of Revenue is just and proper does not call for any interference in the present petition. The learned Board of Revenue has rightly found the will to be genuine, therefore, he has directed for mutation of the name of the holders of the will. It is further contended that the will was got executed by the deceased Khoob Singh during his life time in favour of respondents and by virtue of the same, they have accrued the title of the property after the death of Khoob Singh. Thus, their names have rightly entered into in the Revenue Records.
7. Heard learned counsel for parties and perused the record.
8. An application was filed by the respondent No. 1 before the Tahsildar for mutation of his name in the Revenue Record on thebasis of a will, the case was rejected by the learned Tahsildar and publication was made and patwari report was called in the matter. The publication was made on 13.4.2007 and no objection was filed on the aforesaid publication, the statements of Sitaram and Naval Singh were recorded on 16.5.2007 and the aforesaid wittiness have verified the will dated 15.5.2006. On 24.5.2007 objections were filed by Pahalwan Singh and Mahendra Singh under section 110(3) of M.P. Land Revenue Code. No body appea
