IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE MANINDER S. BHATTI st ON THE 1 OF SEPTEMBER, 2023 MISC. PETITION No. 2789 of 2020 BETWEEN:-

RUPESH KUMAR MISHRA S/O SHRI RAJARAM MISHRA, AGED ABOUT 56 YEARS, OCCUPATION: AGRICULTURE VILLAGE BADKHERA TEHSIL BIRSINGHPUR (MADHYA PRADESH)

.....PETITIONER (BY SHRI KRISHNA PRATAP SINGH - ADVOCATE )

AND OMPRAKASH MISHRA S/O SHRI RAMASHANKAR MISHRA, AGED ABOUT 35 YEARS, VILLAGE BADKHERA TAHSIL BIRSINGHPUR (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI AVINASH ZARGAR - ADVOCATE)

This petition coming on for admission this day, the court passed the following:

ORDER

This is a petition assailing the orders dated 27.08.2018 (Annexure-

P/4) in Revenue Case No.52/A692/18-19, 70A692/17-18, 28.11.2019 (Annexure-P/6) in Case No.11/Appeal/2018-19 and 28.09.2020 (Annexure-P/7)

in Case No.524/Appeal/2019-20.

2. It is contended by the counsel for the petitioner that the present petitioner filed an application before the Tahsildar under Section 109 and 110 of the M.P. Land Revenue Code on the basis of Will dated 01.03.2018 for mutation of land situated on Khasra No.36/1/KH area 0.032 Hect, 38/2/KH area Signature Not Verified

0.655 Hect., 196/K/2 area 0.145 Hect., 226/1K/2 area 0.064 Hect., 272/2 area 0.113 Hect. 291/1/KH area 0.008 Hect., 431/1/KH area 0.024 Hect. 435/1 area 0.024 Hect. 503/1/K/2 area 0.057 Hect. 503/2/KH area 0.138 Hect, 504/2 area 0.085 Hect., total No.13 and total area 1.385 Hect. in Village Badkher, Tehsil Dirsinghpur District Satna (M.P.).

3. The respondent also filed an application under Section 109 and

110 of M.P. Land Revenue Code for mutation on the basis of another Will dated 24.01.2017 before the Tahsildar. The Tahsildar clubbed both the petitions and passed an order dated 27.08.2018 in favour of the respondent while holding that the Will in favour of the respondent is a genuine Will and accordingly, on the basis of the said Will, the mutation is proper. The order passed by the Tahsildar was assailed by the present petitioner before the Sub Divisional Officer and later on, before the Additional Commissioner, but both the Authorities have dismissed the appeal. Thus, this petition is filed.

4. Learned counsel for the petitioner contends that the order passed by the Tahsildar deserves to be set aside in view of the law laid down by the Division Bench of this Court in the case of Murauri and Anr. vs. State of M.P. & Ors. (2020 4 MPLJ 139) and by the Gwalior Bench of this Court in the case of Harigyan Singh and Ors. vs. Munnidevi and Anr. (M.P. No.1279/2020). It is contended by the counsel that it is now settled law that the mutation on the basis of the Will is not permitted.

5 . Per contra, learned counsel for the respondent submits that the issue in the present case is required to be considered in view of the Rules under Section 110 of the M.P. Land Revenue Code. It is contended by the counsel that in terms of the said provision, the mutation is permissible on the basis of bequest, apart from the other mode and, therefore, the order of Tahsildar Signature Not Verified requires no interference.

6. No other point is pressed by the parties.

7. Heard the submissions and perused the record.

8. A perusal of the order impugned reflects that the Tahsildar while appreciating the applications filed by the petitioner as well as respondent has passed the impugned order. By the said impugned order, the Tahsildar allowed the application filed by the respondent for mutation while holding that the Will in favour of the respondent dated 01.03.2018 was genuine Will and registered as well whereas the Will produced by the present petitioner was unregistered. 9. The order of mutation on the basis of Will is not permissible as laid down by the Apex Court in the case of Jitendra Singh vs. State of Madhya Pradesh, 2021 SCC OnLine SC 802.

10. The Apex Court in the case of Jitendra Singh (supra) held in paras 6,7 and 8 as under :

"6. It is not in dispute that the dispute is with respect to mutation e