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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BENCH
Vishal Dhagat, J.
Rajdeep Kapoor – Appellant
Versus
Mohd. Sarwar Khan and Ors. – Respondents
Misc. Petition No. 6597 of 2019
Decided On : 06-01-2021
Mutation - M.P. Land Revenue Code - 109, 110 - The court discussed the provisions of Sections 109 and 110 of the M.P. Land Revenue Code, emphasizing that reporting of acquisition of legal right and interest within 6 months is obligatory and not mandatory. The court also highlighted that mutation cannot be refused solely on the ground of delay in undisputed cases. The court further emphasized the principle of estoppel and the jurisdiction of revenue courts in mutation proceedings.
Fact of the Case:
Respondent filed an application for mutation of land based on a 'Will' executed by late Dr. Harwant Singh Kapoor. The application was initially dismissed on the ground of delay by the Naib Tehsildar, and the appeal was later dismissed by the Sub Divisional Officer. However, the Additional Commissioner set aside the previous orders and allowed the mutation application based on the 'Will'. The petitioner challenged this decision on the grounds of jurisdiction and the genuineness of the 'Will'.
Finding of the Court:
The court found that the Naib Tehsildar erred in dismissing the mutation application solely on the ground of delay, emphasizing that reporting of acquisition of legal right and interest within 6 months is obligatory and not mandatory. The court also held that the Sub Divisional Officer wrongly found a dispute of title between the parties, as there was no dispute regarding the execution of the 'Will' before the Naib Tehsildar. Additionally, the court emphasized the jurisdiction of revenue courts in mutation proceedings and the applicability of the principle of estoppel. The court dismissed the petitioner's challenge and recommended compliance with proper procedure in mutation proceedings.
Issues: The issues before the court included the dismissal of the mutation application based on delay, the finding of a dispute of title between the parties, and the jurisdiction of the Additional Commissioner to set aside previous orders and allow the mutation application.
Ratio Decidendi: The court emphasized the mandatory reporting of acquisition of legal right and interest within 6 months, the lack of dispute regarding the 'Will' before the Naib Tehsildar, and the jurisdiction of revenue courts in mutation proceedings. The court also highlighted the principle of estoppel and recommended compliance with proper procedure in mutation proceedings.
Final Decision: The court dismissed the petitioner's challenge and recommended compliance with proper procedure in mutation proceedings, while allowing the petitioner to establish their title before the Civil Court.
ORDER :
Vishal Dhagat, J.
1. Petitioner has filed this misc. petition calling in question order passed by Additional Commissioner, Bhopal dated 27.11.2019 by which order passed by SDO and Naib Tehsildar dated 15.02.2019 and 15.01.2018 was set aside and application for mutation filed by Mohd. Sarwar Khan was allowed.
2. Brief facts of the case are as under:-
Respondent Mohd. Sarwar Khan filed an application under sections 109 and 110 of M.P. Land Revenue Code, for mutation of his name on land bearing Survey number 288, measuring 7.350 Ha. situated in Village Sagoni Kalan, Tehsil Hazur, District Bhopal, MP. Application for mutation was filed on the ground that late Dr. Harwant Singh Kapoor had executed a 'Will' on 13.05.1988 in favour of respondent Mohd. Sarwar Khan. On the basis of said 'Will' respondent Mohd. Sarwar Khan is in possession over the land and is doing agriculture over it. Since testator had died, therefore, land may be mutated in the name of legatee. Learned Naib Tehsildar by order dated 15.01.2018 dismissed the application for mutation on the ground of delay. Naib Tehsildar held that 'Will' was executed on 13.05.1988 and thereafter testator had died on 29.06.2012. Application for mutation has been filed after delay of five years.
Respondent has challenged the order passed by Naib Tehsildar before Sub Divisional Officer. Before appellate court petitioner filed an application under Order 1 Rule 10 of C.P.C. and filed its objection to mutation proceedings. Learned Sub Divisional Officer, considering the evidence available on record, held that there is dispute of title over the land in question, therefore, mutation cannot be ordered in favour of respondent. Sub Divisional Officer refused to interfere in the matter and dismissed the appeal by order dated 15.02.2019.
Respondent challenged the order passed by SDO before Additional Commissioner, Bhopal. Additional Commissioner, Bhopal vide order dated 27.11.2019 set aside the orders passed by Sub Divisional Officer and Naib Tehsildar and allowed the application filed by respondent on the basis of 'Will' executed by late Dr. Harvant Kapoor. Additional Commissioner held that petitioner, Dr. Rajdeep Kapoor had admitted the 'Will' before Naib Tehsildar. He had made a statement that the land was given to respondent by his father out of affection. Petitioner's father Dr. Harvant Kapoor was running a clinic in the shop given to him by father of respondent i.e. Anwar Khan out of affection and friendly relationship. No rent was charged for the said shop. Witnesses of the 'Will' had also been examined and they had stated that Dr. Harwant Singh Kapoor and Anwar Khan were good friends. Anwar Khan had given his shop without any charge to Dr. Harvant Kapoor for running his clinic. Later on petitioner i.e. Dr. Rajdeep Kapoor was also running his clinic from the same shop. 'Will' dated 13.05.1988 is a notarized document. Admitted document is not required to be proved as per Section 58 of the Evidence Act. Second 'Will' which has been produced by petitioner is not worthy of credit in view of apex court judgment in case of H.V. Nirmala vs. R. Sharmila, (2018) 3 SCC 303. On the basis of such finding and law, Additional Commissioner allowed the appeal filed by respondent.
3. Counsel appearing for petitioner has challenged the order passed by Additional Commissioner on the ground that Commissioner has no jurisdiction to decide the validity of the 'Will'. It is within the jurisdiction of civil court to decide the genuineness and validity of a 'Will'. There was delay in filing the application for mutation and findings of Commissioner are perverse. 'Will' presented by respondent in the court of Tehsildar has been counterfeited and forged. On aforesaid grounds petitioner made a prayer for setting aside order passed by Additional Commissioner.
4. Counsel appearing for respondent supported the order passed by Additional Commissioner. He submitted that admitted facts need not be proved as per section 58 of
The mandatory reporting of acquisition of legal right and interest within 6 months, the jurisdiction of revenue courts in mutation proceedings, and the principle of estoppel were central legal points....
(1) Mutation – There is no bar for seeking mutation based on a Will – However, in a case of serious dispute regarding validity/genuineness of Will, appropriate course for parties would be to approach....
The Revenue Court has no jurisdiction to decide the genuineness of a Will, and only the Civil Court can determine the genuineness of a Will.
Mutation orders require evidence of possession through lawful transfer, and failure to consider possession invalidates such orders.
Mutation proceedings under the U.P. Land Revenue Act do not confer title, and jurisdiction to decide title issues lies solely with civil courts.
Mutation proceedings under the Land Revenue Act are summary in nature and do not confer title; aggrieved parties must seek resolution in civil courts.
The main legal point established in the judgment is that mutation on the basis of a Will is not maintainable and falls within the domain of the civil court. Revenue authorities have a duty to ensure ....
Mutation is for fiscal purpose and does not confer any right and title in favor of anyone. Order passed in mutation proceedings shall not bar any suit in a competent court for relief on the basis of ....
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