Back
IN THE HIGH COURT OF MADHYA PRADESH
Vishal Dhagat, J.
Rajdeep Kapoor (Dr.) v. Mohd. Sarwar Khan & another
Miscellaneous Petition No. 6597 of 2019 (Jabalpur) ; against the order Dated 27.11.2019 passed by the Additional Commissioner, Bhopal Division, Bhopal; Decided on 6.1.2021
¼1½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 109 rFkk 110 && 6 ekl dh dkykofèk ls ijs ukekarj.k vkosnu && vfèkdkj ,oa fgr vtZu ds 6 ekl d¢ Òhrj fji¨VZ@lwpuk nsuk && ckè;dj gS] vkKkid ugÈ && vfèkdkj ;k gd vtZu dh fji¨VZ@lwpuk 6 ekl ls ijs nh xà gks rc Òh èkkjk 109 rFkk 110 ukekarj.k dk otZu ugÈ djrÈ && foyac d¢ vkèkkj ij ukekarj.k ls bUdkj ugÈ fd;k tk ldrkA ¼iSjk 8
¼2½ foy && gd dk fookn && rkRi;Z && olh;rdrkZ d¢ iq= ;kph }kjk foy dk fu"iknu Lohdkj fd;k x;k && vuqçek.kd lkf{k;¨a ds lk{; ls lkfcr dh xà && uk;c rglhynkj }kjk foy ij lansg ugÈ fd;k x;k && i{kdkj¨a d¢ e/; gd~ dk fookn ugÈ Fkk && ;kph us gd dk fookn loZçFke vihy U;k;ky; d¢ le{k mBk;k && ,slh vkifÙk mBkus ls focafèkr gSA ¼iSjk 7 ,oa 9
¼3½ focaèk && foca/k dk fl)kar && lkE;k dk fl)kar gS && i{kdkj }kjk U;k;ky; d¢ le{k rF; Lohdkj dj fy, tkus ij && i'pkr~orhZ dk;Zokgh esa
&& mls ml rF; dk izR;k[;ku djus ugÈ fd;k tk ldrkA ¼iSjk 9
¼4½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 43 && flfoy çfØ;k lafgrk] 1908 dk ykxw gksuk && lafgrk d¢ vèkhu ;k mld¢ v/khu fufeZr fu;e¨a d¢ vèkhu d¨bZ vfÒO;ä micaèk ugha g¨ rc && jktLo U;k;ky;¨a }kjk flfoy çfØ;k lafgrk d¢ micaèk¨a dk vuqlj.k fufoZ?u dk;Z djus d¢ fy, fd;k tkuk g¨rk gS && tc e-ç- Òw&jktLo lafgrk ;k mld¢ v/khu fufeZr fu;e¨a d¢ vèkhu vfÒO;ä micaèk gks rks flfoy çfØ;k lafgrk d¢ micaèk¨a dk vuqlj.k ugÈ djuk g¨rk gSA ¼iSjk 12
¼5½ lk{; vfèkfu;e] 1872 && èkkjk 1 rFkk 3 && e-ç- Òw&jktLo lafgrk] 1959 && èkkjk 109 rFkk 110 && ukekarj.k dk;Zokgh && e-ç- Òw&jktLo lafgrk d¢ vèkhu gksrh gS && ,slh dk;Zokgh dks lk{; vfèkfu;e ykxw ugÈ g¨rkA¼iSjk 13
¼6½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 110 ¼4½ && lk{; vfèkfu;e] 1872 && èkkjk 137 && ukekarj.k dk;Zokgh && lk{; ls vfÒçsr && nLrkost rFkk lkf{k;¨a d¢ 'kiFk i= i;kZIr gSa && i{kdkjksa }kjk is'k fd, x, lk{; ds ckjs esa viuk lek/kuk djuk && rglhynkj ls visf{kr gS && eq[; ijh{k.k ;k çfrijh{k.k tSlk èkkjk 137 d¢ vèkhu fd;k tkrk gS && ukekarj.k dk;Zokgh esa djus dh vko';drk ugÈA ¼iSjk 13 ,oa 16
¼7½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 109] 110 rFkk 49 && vfèkdkfjrk && foy d¢ vkèkkj ij ukekarj.k d¢ fy, vkosnu && olh;rdrkZ d¢ iq= ;kph }kjk foy dk fu"iknu Lohdkj fd;k x;k && vuqçek.kd lkf{k;¨a ds lk{; ls lkfcr dh xbZ && uk;c rglhynkj }kjk foy ij lansg ugÈ fd;k x;k && ijarq foyac d¢ vkèkkj ij vkosnu [kkfjt fd;k x;k && lk{; ij fopkj fd, fcuk çFke vihy bl vkèkkj ij [kkfjt dh xà fd gd dk fookn Fkk && lk{; ij fopkj djus d¢ i'pkr~ vij vk;qDr bl fu"d"kZ ij igq¡ps fd foy vlyh gS v©j foy d¢ fo"k; esa fookn ugÈ gS && mlus oSèk :i ls rFkk viuh vfèkdkfjrk d¢ Òhrj dk;Z fd;k gS && mlus fupys U;k;ky;¨a d¢ vkns'k lgh vikLr fd, rFkk ukekarj.k dk vkosnu lgh eatwj fd;kA ¼2018½ 3 ,l lh lh 303 fufnZ"VA ¼iSjk 7] 9 rFkk 17
(1) Land Revenue Code, 1959 (M.P.) -- Ss. 109 and 110 -- application for mutation beyond -- period of 6 months -- reporting of acquistion of right and interest within 6 months -- is obligatory and not mandatory -- sections 109 and 110 do not bar mutation if reporting of acquisition of right or title is beyond 6 months -- mutation cannot be refused on ground of delay. [Para 8
(2) Will -- dispute of title -- meaning -- execution of Will admitted by petitioner son of testator -- proved by evidence of attesting witnesses -- Will not doubted by Naib Tahsildar -- there was no dispute of title between parties -- petitioner raised dispute of title for first time before appellate Court -- estopped from raising such objection. [Paras 7 & 9
(3) Estoppel -- doctrine of estoppel -- is principle of equity -- once fact is admitted by party before Court -- he cannot be allowed to deny said fact in subsequent proceedings. [Para 9
(4) Land Revenue Code, 1959 (M.P.) -- S. 43 -- applicability of Civil P.C., 1908 -- provisions of Civil P.C. to be followed by revenue Courts for smooth functioning -- when there is no express provision under M.P. Land Revenue Code or Rules made there under when there is express provision under M.P. Land Revenue Code or Rules made thereunder, provisions of Civil P.C. is not to be followed. [Para 12
(5) Evidence Act, 1872 -- Ss. 1 and 3 -- M.P. Land Revenue Code, 1959 -- Ss. 109 and 110 -- mutation proceedings -- are under M.P. Land Revenue Code Evidence Act not applicable to such proceedings. [Para 13
(6) Land Revenue Code, 1959 (M.P.) -- S. 110 (4) -- Evidence Act, 1872 -- S. 137 -- mutation proceedings -- evidence means -- documents and affidavits of witnesses are sufficient -- Tahsildar is required to reach his satisfaction in respect of evidence adduced by parties -- examination in-chief or crossexamination as done under section 137 -- need not to be done in mutation proceedings. [Paras 13 & 16
(7) Land Revenue Code, 1959 (M.P.) -- Ss. 109, 110 and 49 -- jurisdiction -- application for mutation on basis of Will -- execution of Will admitted by petitioner son of testator -- proved by evidence of attesting witnesses -- Will not doubted by Naib Tahsildar -- but application rejected on ground of delay -- without considering evidence, first appeal dismissed on ground that there was dispute of title -- Additional Commissioner after considering evidence, came to conclusion that Will is genuine and there is no dispute about Will -- he has acted legally and within his jurisdiction -- he has rightly set aside orders of Courts below and allowed application for mutation. (2018)3 SCC 303 referred to. [Paras 7, 9 & 17
ORDER
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 Tahsildar dated 15.2.2019 and 15.1.2018 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 13.5.1988 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 Tahsildar by order dated 15.1.2018 dismissed the application for mutation on the ground of delay. Naib Tahsildar held that ‘Will’ was executed on 13.5.1988 and thereafter testator had died on 29.6.2012. Application for mutation has been filed after delay of five years.
Respondent has challenged the order passed by Naib Tahsildar before Sub Divisional Officer. Before appellate court petitioner filed an application under Order 1 rule 10 of CPC 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 15.2.2019.
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 Tahsildar 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 Tahsildar. 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 13.5.1988 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 v. 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 Tahsildar 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 Evidence Act
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....
Mutation orders require evidence of possession through lawful transfer, and failure to consider possession invalidates such orders.
(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 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 ....
Jurisdiction of revenue authorities to adjudicate the correctness and genuineness of a 'Will' for mutation of name.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
