HI GH COURT OF UTTARAKHAND AT NAI NI TAL

Writ Petition No.2598 ( M/ S) of 2023

Shri Abhinav Bhandari and another ………Petitioners

Versus

Usha Kiran Bhandari ….....Respondent

Mr. Deepak Bhatt, Advocate for the petitioners.

Mr. A.S. Rawat, Sr. Advocate assisted by Mr. Girveer

Chandra, Advocate for respondent.

Hon'ble Pankaj Purohit, J. ( Oral)

By means of instant writ petition, the

petitioners are seeking issuance of writ of certiorari to quash the order dated 20.10.2022 passed by learned Collector, Nainital in Appeal No.52 of 2010, Dr. Usha Kiran Bhandari vs. Late Durga Bhandari and others and the order dated 27.07.2023 passed by learned Member (Judicial), Board of Revenue, Nainital, Uttarakhand in Revision No.04 (2022-23), Smt. Sneh Lata Bhandari

and another vs. Usha Kiran Bhandari.

2. The brief facts of the case are that one late Smt. Durga Devi was recorded tenure holder of the land situated at Village Bhawanipur, Kisna, Tehsil Lal Kuan, District Nanital bearing Khata No.2 measuring 0.606 hectare and Khata No.3 measuring 8.354 hectare and she also had half share in land situated at Village Kishanpur Sarkuliya bearing Khata No.29 and

measuring 3.786 hectare.

3. The case of the petitioners is that late Smt. Durga Devi was grandmother of petitioner no.1 and mother-in-law of petitioner no.2 and after the sad

demise of Smt. Durga Devi, the share of her on aforesaid land was mutated in favour of petitioners on the basis of undisputed succession. The respondent is the sister-in-law of petitioner no.2 and aunt of petitioner no.1 and she on the basis of alleged Will dated 25.10.2010 of late Durga Devi initiated mutation proceedings under Section 34 of the U.P. Land Revenue Act, before Tehsildar which was registered at Mutation Case No.30/1010 of 2011-12/30/1367 of 2014-15. When the petitioners got to know about this fact that the respondent is trying to obtain the property on the basis of fake Will filed a civil suit no.128 of 2011, Abhinav Bhandari and others vs. Usha Kiran Bhandari seeking cancellation of alleged will and relief of permanent of injunction against the respondent in furtherance of which, the learned Civil Court was pleased to grant temporary injunction in favour of the petitioners vide order dated 06.03.2014. Aggrieved by the order respondent preferred a Miscellaneous Civil Appeal No.23 of 2014, Usha Kiran Bhandari vs. Abhinav Bhandari and others, in the court of First ADJ, Haldwani, Nainital, which was dismissed by the learned Appellate Court vide order dated 08.05.2015.

4. Thereafter, the petitioners appeared before the Tehsildar and stated that the alleged will is forged and false and also brought the temporary injunction order dated 06.03.2014 in the notice of learned Tehsildar who on the basis of these facts, dismissed the mutation proceedings vide order dated 10.07.2015. Aggrieved by this order, the respondent preferred an appeal before Collector, Nainital who in turn dismissed the appeal vide order dated 02.03.2017. Aggrieved by both the orders, the respondent filed a revision before Board of Revenue, Nainital which was allowed by the Board without hearing the petitioners. Against this order, the petitioners preferred a writ before this Hon’ble Court in WPMS No.2121 of 2017 and this Hon’ble Court remitted the matter back to Board of Revenue. The Board of Revenue again allowed the revision vide order dated 17.03.2018 to Tehsildar directing him to decide the mutation proceeding on merits. The learned Tehsildar after hearing the parties and taking the evidence dismissed the mutation application on merit by order dated 04.03.2020. This order was again assailed by the respondent before Collector, Nainital and this appeal was partially allowed by him and vide order dated 20.10.2022, the matter was again remanded to Tehsildar for deciding it afresh. Aggrieved by this order, the petitioners preferred a revision before the Board of Revenue and the said revision was dismissed by member (Judicial), Board of Revenue vide the impugned ord