J U D G M E N T

(Delivered on this 31st Day of August, 2021)

Anand Pathak, J.

1. Appellant has filed this appeal under Section 2 (1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 being aggrieved by order dated 22/3/2021 passed in M.P.No. 4621/2019 passed by learned Writ Court; whereby, the petition filed by the appellant as petitioner has been dismissed.

2. Precisely stated facts of the case are that initially appellant filed an application for mutation of his name before Naib Tahsildar, Tahsil Sheopur on the strength of a “Will” allegedly executed by his father. Naib Tahsildar vide order dated 23/01/2016 rejected the said application for mutation. Taking exception to the said order, appellant preferred an appeal before the SDO, Sheopur, who in turn, vide order dated 6/11/2017 allowed the appeal and directed to mutate the name of appellant in the revenue records on the basis of said Will.

3. Order of SDO was challenged by respondents No. 1 and 2 before the Additional Commissioner, Chambal Division, Morena, who in turn allowed the appeal vide order dated 27/8/2019 and set aside the order of SDO. This order was put to challenge by the appellant before the learned writ Court mainly under Article 227 of the Constitution of India on the ground that Additional Commissioner committed material illegality while holding that the land in dispute is an ancestral land and the testator had no right to execute the Will.

4. Learned writ Court after considering the rival submissions, came to the conclusion that authenticity and correctness of the Will can only be tested in Civil Suit before competent Civil Court and not in proceedings under MPLRC before any revenue Court. After considering this aspect in detail, learned writ Court vide impugned order came to the conclusion that Additional Commissioner, Chambal Division rightly allowed the appeal of respondents No. 1 and 2 because petitioner has to file a Civil Suit, if advised so, for declaration of title on the basis of Will. Hence, appellant is before this Court.

5. It is the submission of learned counsel for appellant that learned writ Court erred in passing the impugned order ignoring the mutation rules known as Rules Regarding Record of Rights vide notification dated 10th June, 1965 published in M.P. Rajpatra dated 2/7/1965 and amended on 16/4/1968 in which Rule 24 and 32 govern the mutation proceedings. It is further submitted that reading of Rules 24 and 32 alongwith Section 31 of MPLRC makes it clear that Patwari is duty bound to maintain a register of mutation and Tahsildar is competent to decide any dispute arising out of such register on the basis of title and not possession. He also relied upon Section 164 and 165 of MPLRC to bring home the analogy that Bhumiswami can declare his successor by way of Will and no restriction of transfer by way of Will exists in MPLRC.

6. Heard on admission and documents perused.

7. This is a case where appellant initially moved an application for mutation of his name on the basis of alleged Will. His claim was contested by other family members who are arrayed as respondents herein, on the ground that disputed property is ancestral property and it has devolved to deceased Banshidhar from his father Gopilal and Banshidhar survived with four sons and one daughter and therefore, Banshidhar never had any legal authority to execute a Will over an ancestral property. 8. Another objection of respondents was the fact that SDO caused illegality while relying upon the fact that deceased Banshidhar was only Manager of the land and on the basis of said entry in revenue records, he cannot be the owner of the property in isolation. Similarly, as per respondents, execution of Will of Banshidhar was doubtful because Banshidhar used to sign the documents out of which one document contained signature of Banshidhar and another document carried his thumb impression which makes the case doubtful. All these aspects have been considered by the Add