[2023:RJ-JD:31466] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3474/1998 Mst. Gyarsi Bai
----Petitioner Versus Board Of Revenue, Ajmer And Ors
----Respondent For Petitioner(s) : Mr. Abhinav Jain For Respondent(s) : Mr. L.K. Purohit, G.C.
Mr. Rakesh Arora HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment Reserved on 20/09/2023 Pronounced on 31/10/2023
1. The matter pertains to the year 1998, and thus, listed under the category of "Oldest Cases for Early Disposal".
2. This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs:
"(i) by an appropriate writ, order or direction the impugned orders vide Annexure-1 dated 13.3.95 passed by Sub- Divisional Officer, Annexure-2 dated 24.4.95 passed by Revenue Appellate Authority, Chittorgarh and Annexure-3 dated 23.6.98 passed by the Board of Revenue Ajmer be quashed and set aside and the suit of the Petitioner be decreed with costs as prayed for.
(ii) by an appropriate writ, order or direction, the respondent No.4 be restrained not to interfere in the peaceful possession of the land in dispute situated at Kotrikalan.(Downloaded on 12/11/2023 at 08:14:48 AM)
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(iii) any other appropriate order or direction which this Hon'ble Court deem just and proper by passed in favour of the Petitioner.
(iv) Costs of the writ petition be allowed to the Petitioner."
3. As per the pleaded facts, the petitioner instituted a suit bearing no.210/234 under Sections 88 & 188 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'Act of 1955') for declaration and permanent injunction, against the respondent no.4-Parasmal and one Shantilal s/o Shobhalal, before the learned Sub Divisional Officer (SDO), Nimbaheda, in relation to Khasra No.24 measuring 4 Biswa, and Khasra No.25 measuring 2 Bighas and 6 Biswas, in all 6 Bighas and 7 Biswas land, situated in Village Kotrikalan, Nimbahera.
3.1. As per the petitioner, the land in question was gifted to her in the year 1952 by Shri Shobhalal as he treated the petitioner as his own daughter.
3.2. Thereafter, the mutation was made in the name of petitioner on 07.03.1955 and her name was accordingly entered in the Annual Register on coming into force of the Act of 1955, from 15.10.1955; in addition, mutation no.37 was made on 14.06.1962.
3.3. Subsequently, Shri Shobhalal died in the year 1981, whereafter the respondent no.4 and Shantilal threatened to dispossess the petitioner from the land in question, whereupon the petitioner filed the aforementioned suit; however, the same was dismissed vide the impugned judgment dated 13.03.1995. Aggrieved of the impugned judgment of the learned SDO, an (Downloaded on 12/11/2023 at 08:14:48 AM) [2023:RJ-JD:31466] (3 of 12) [CW-3474/1998] appeal was preferred before the Revenue Appellate Authority (RAA), Chittorgarh which was dismissed vide the impugned judgment dated 24.04.1995, while holding that the petitioner had no right to institute a suit against Khatedar Parasmal (respondent no.4 herein).
3.4. Consequently, the petitioner preferred a second appeal before the learned Board of Revenue (BoR) for Rajasthan, Ajmer; however it was dismissed, while maintaining the findings of the revenue courts below vide the impugned judgment dated 23.06.1998. Aggrieved of the above impugned judgments of the SDO, RAA & BoR, the present petition has been preferred claiming the afore-quoted reliefs.
4. Learned counsel for the petitioner submitted that the land in question belonged to Late Shri Shobha Lal and the petitioner was in sub tenancy, whereafter it was orally gifted to the petitioner as Late Shri Shobhalal treated her as a daughter; further, the private respondent had tried to illegally dispossess the petitioner. 4.1. It was further submitted that mutation no.9 was made in favour of the petitioner and her name was recorded in Annual Register as Shikmi Kashatkar and after the Act of 1955 came into force, mutation no.37 was recorded in her name; thus by virtue of Sections 15 & 19 of the Act of 1955, the petitioner became the Khatedar of the land in question.
4.2. It was also submitted that the only piece of evidence submitted by the private respondent was a registered Will and only on the basis of this one document, the impugned judgments were passed in favour of the private respondent. (Downloaded on 12/11/2023 at 08:14:48 AM) [2023:RJ-JD:31466] (4 of 12) [CW-3474/1998] 4.3. In furtherance, issue no.3 was formulated with respect to execution of the alleged Will in favour of the private respondent and its effect on the suit, and pertaining thereto all the three learned revenue courts below held that since the Will was registered, thus the private respondent was owner of the land in question; however, it is a settled proposition of law that revenue courts do not have any right to decide the validity of Will. 4.4. It was also submitted that as per Section 68 of Indian Evidence Act, 1872, a Will can be used as evidence only when an attesting witness has been called for the purpose of proving its execution; further, the proviso to the said Section 68 clearly makes an exception for Will from documents, which need not require attestation, if the same are registered. In furtherance, Section 63 of the Indian Succession Act, 1925, provides for execution of unprivileged Wills and according to Clause (c) a will is required to be attested by two or more witnesses, and thus issue no.3 in question could not have been decided in favour of the private respondent solely on the basis of the Will being registered. For ready reference, Section 68 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925 is reproduced as hereunder:
"68. Proof of execution of document required by law to be attested-
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.(Downloaded on 12/11/2023 at 08:14:48 AM)
[2023:RJ-JD:31466] (5 of 12) [CW-3474/1998] Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." "63. Execution of unprivileged wills.--
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1[or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:--
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
4.5. Learned counsel, in support of such submissions, placed reliance on the following judgments:
(a) Smt. Jaswant kaur v. Smt. Amrit Kaur & Ors. (1977) 1 SCC 369;
(b) Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria & Ors. (2008) 15 SCC 365;
(c) Maulana Shamsuddin v. Khushilal (1979) 1 SCC 121;
(d) Balveer Singh & Ors. v. Board of Revenue & Ors. (Civil Writ Petition No.187/73, decided by a Coordinate Bench of this Hon'ble Court on 07.04.1983; and
(e) Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729 (Downloaded on 12/11/2023 at 08:14:48 AM) [2023:RJ-JD:31466] (6 of 12) [CW-3474/1998] 4.6. It was further submitted that the petitioner had become Khatedar of the land in question by virtue of adverse possession as per the provision of Section 63 (1) (iv) and Section 182-A of Act of 1955.
5. On the other hand, learned counsel appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioner, submitted that Late Shri Shobhalal never treated the petitioner as his own daughter and neither did he gift the property to her; furthermore, it is settled proposition of law that an immovable property cannot be gifted orally. 5.1. It was further submitted that the petitioner was not in possession of the land in question at the time when the Act of 1955 came into force, thus, the averment that by virtue of Sections 15 & 19 of the Act of 1955, the petitioner had become Khatedar of the said land, is completely incorrect; further, the averment of the petitioner, claiming himself to be a sub-tenant (shikmi tenant) is also completely baseless, as there was clear finding of the learned SDO that during the relevant time, a person named Unkar was the sub-tenant. It was also submitted that no mutation could be made for entering any person as sub-tenant in accordance with provisions of law, as for the same, there needs to be either succession or transfer of land, as has been observed in the impugned judgments.
5.2. In furtherance, it was submitted that the plea of becoming Khatedar by virtue of gift and the plea of becoming Khatedar tenant by virtue of Sections 15 & 19 of the Act of 1955, are contradictory.
(Downloaded on 12/11/2023 at 08:14:48 AM) [2023:RJ-JD:31466] (7 of 12) [CW-3474/1998] 5.3. It was also submitted that the averment of becoming Khatedar by adverse possession through Section 63 (1) (iv) of the Act of 1955, also does not hold ground as after the death of Shri Shobhalal, the private respondent became the Khatedar of the land in question by way of registered Will executed in his favour, and even otherwise by virtue of Hindu Succession Act, the private respondent would have become the Khatedar of the land in question.
5.4. It was further submitted that the mutation is only a fiscal measure to collect the land revenue and was not a document proving a person's possession; further, the petitioner was not in possession of the land in question since the past 40 years.
6. Heard learned counsel for the parties as well as perused record of the case alongwith the judgments cited at the Bar.
7. This Court observes that the petitioner instituted aforementioned suit before the learned SDO against the private respondent herein and Shantilal s/o Shobhalal with respect to the land in question, however the same was dismissed; whereafter an appeal was preferred before the learned RAA which was also dismissed and a second appeal against the same was preferred before the BoR, which too was dismissed. The petitioner being aggrieved of the three impugned judgments preferred the present writ petition, wherein on 15.10.1998, an interim order was passed by this Hon'ble Court for maintaining status quo with regard to the land in question.
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8. This Court further observes that the present controversy is pertaining to the issue no.3 so formulated by the learned SDO; the said issue no.3 is reproduced as hereunder:
"3& D;k oknxzLr vkjkth dks "kksHkkyky ewy [kkrsnkj us vius Hkrhts dks olh;r dj fn;k ftldk bl okn ij D;k vlj gSA izfroknh"
9. In accordance with the observations so made by the learned SDO as well as the learned RAA in the impugned judgments, whereby the private respondent was held to be Khatedar of the land in question solely on the basis of the fact that the Will produced by the private respondent was a registered document; in addition, the learned SDO in the impugned judgment dated 13.03.1995 held that even without the Will, the private respondent would become the Khatedar of the land in question; however, the basis of deciding the issue no.3 was the exhibited document i.e. the Will.
10. This Court also observes that it is a settled proposition of law that title to property cannot be decided by revenue courts instead the same can only be decided by a competent civil court, yet all the three learned revenue courts below have decided issue no.3 and given the decision of respondent no.4 being the Khatedar of the land in question based on the document of Will.
11. This Court is conscious of the judgment rendered by this Court in the case of Narayan & Anr. v. Heera Lal & Ors. (SB CWP No. 205/2023, decided on 22.08.2023), relevant portion whereof is reproduced hereunder:
"11. This Court is also conscious of the judgment rendered by the Hon'ble Apex Court in the case of Jitendra Singh (Downloaded on 12/11/2023 at 08:14:48 AM) [2023:RJ-JD:31466] (9 of 12) [CW-3474/1998] (supra);relevant portion whereof is reproduced as hereunder:
"6. ....As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made."
12. This Court is further conscious of the judgment rendered by the Hon'ble Apex Court in Sawarni v. Inder Kaur, (1996) 6 SCC 223; relevant portion whereof is reproduced as hereunder:
"7. .....Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment."
Thus in light of the above said precedent law it is clear that the question of title does not come under the purview of the revenue courts, where the title itself is in dispute the role of civil courts comes into play.
12. This Court also observes that even if the document of Will was taken into consideration by the learned courts below yet the same lacked in compliance of the provisions of Section 68 & 63 of the Indian Evidence Act, 1872 as it is evident that in order to consider a Will as a piece of evidence, the execution of the same (Downloaded on 12/11/2023 at 08:14:48 AM) [2023:RJ-JD:31466] (10 of 12) [CW-3474/1998] is required to be proved; however in the present case, as is clear from the observations of the learned SDO and learned RAA, no such witness had been called upon.
13. This Court is further conscious of the judgment rendered by the Hon'ble Apex Court in the case of Ramesh Verma (Dead) Through Legal Representatives v. Lajesh Saxena (Dead) Through Legal Representatives & Anr., (2017) 1 SCC 257, relevant portion whereof reads as under:-
"13. A will like any other document is to be proved in terms of the provisions of Section 68 of the Evidence Act and the Succession Act, 1925. The propounder of the will is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement."
14. This Court is also conscious of the judgment rendered by the Hon'ble Apex Court in the case of Dhani Ram (died) through LRs. & others v. Shiv Singh (Civil Appeal No. 8172 of 2009, decided on 06.10.2023), relevant portion whereof is reproduced as hereunder:
"23. Viewed in the context of the legal requirements and the law laid down by this Court, we find that neither of the attesting witnesses in this case fulfilled the mandate of Section 63(c) of the Act of 1925 to prove the Will. Though Lok Nath Attri claimed that Leela Devi affixed her signatures in the Will in their presence, which was (Downloaded on 12/11/2023 at 08:14:48 AM) [2023:RJ-JD:31466] (11 of 12) [CW-3474/1998] vehemently denied by the other attesting witness, Chaman Lal, the fact remains that Lok Nath Attri also did not state that he affixed his signatures in the Will in the presence of Leela Devi. This is one of the compulsory requisites of Section 63(c) of the Succession Act."
Thus it is evident from the aforesaid provisions of law that mere registration of Will by itself cannot prove the genuiness of the document.
15. This Court is conscious of Section 239 of the Act of 1955, which provides for "Procedure when plea of proprietary right raised"; relevant portion of the said provision of law reads as under:-
"239. Procedure when plea of proprietary right raised
-- (1) If in any suit or proceeding in a revenue court, a question of proprietary right in respect of land forming the subject matter of such suit or proceeding is raised and such question has not previously been determined by a civil court of competent jurisdiction the revenue court shall frame an issue on the question of proprietary right and submit the record to the competent civil court for the decision of that issue only (2) The civil court, after re-framing the issue, if necessary, shall decide such issue only and return the record together with its finding thereon to the revenue court which submitted it.
(3) The revenue court shall then proceed to decide the suit accepting the finding of civil court on the issue referred to it."
15. In light of the aforesaid observations and looking into the factual matrix of the present case as well as the aforementioned precedent laws and the afore-quoted Section 239 of the Act of 1955, the present petition is partly allowed. 15.1. Accordingly, while quashing and setting aside the impugned judgment dated 13.03.1995, 24.04.1995 and 23.06.1998 passed (Downloaded on 12/11/2023 at 08:14:48 AM) [2023:RJ-JD:31466] (12 of 12) [CW-3474/1998] by the SDO, RAA and BoR respectively, only to the extent of the aforementioned issue no.3, the matter, in accordance with Section 239 of the Act of 1955, is remanded back to the SDO, only to that extent, with a direction to the said revenue court to refer the issue no.3 and send the record of the suit in question to the competent civil court so that due determination with regard to the said issue pertaining to the Will in question so presented by the private respondent shall be duly decided by the civil court, so as to derive a just conclusion with regard to title, if any, of the parties.
15.2. The competent civil court shall then decide the issue referred to it by the SDO (revenue court), and thereafter, return the record together with its finding thereon to the SDO, and thereupon, the SDO shall proceed to decide the suit only to the extent of the issue so referred by it, while accepting the finding of the civil court on the said issue. All pending applications stand disposed of.
(DR. PUSHPENDRA SINGH BHATI), J.
SKant/-
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