Hariom vs Radhabai
2021 Latest Caselaw 1362 MP

                                  1                                  MP-26-2021
        The High Court Of Madhya Pradesh
                    MP-26-2021
                              (HARIOM Vs RADHABAI)

1
Gwalior, Dated : 07-04-2021
      Shri Amit Lahoti, learned counsel for the petitioner.
      The present petition under Article 227 of the Constitution of India for
challenging the order dated 15.11.2019 passed by the Additional
Commissioner,     Bhopal,    Division    Bhopal      in   Second   Appeal   No.
355/appeal/16-17, whereby the appeal filed by the petitioner has been

dismissed.
      It is alleged that a Will was executed by Late Shri Gangaprasad in
favour of the petitioner with respect to the property situated at Village Sihod,
Distt. Vidisha Survey No. 230, 314/1, 415/2 ad measuring area 0.021, 0.136
and 1.296 Hactare respectively. Despite of the same, the aforesaid land was
mutated in the name of the respondent who is the daughter of Late Shri

Ganga Prasad vide order dated 06.07.1988. The petitioner has preferred an appeal before the SDO and vide order dated 18.09.2012, the matter was remanded back to the Tahsildar for rehearing of the case. Again the Tahsildar

has passed an order dated 17.08.2015 in favour of the respondent with respect to the mutation of the property in question. Again the order passed by the learned Tahsildar, first appeal was dismissed by the SDO vide order dated 24.07.2017. Against which, a second appeal was filed before the Additional Commissioner, Bhopal, Division, Bhopal and the same was also dismissed. Challenging the order passed by the Additional Commissioner, the present Misc. petition has been filed.

It is argued that the Will is in favour of the petitioner executed by Late Shri Ganga Prasad on 17.06.1984, but as there was a civil suit was filed by the petitioner which was dismissed vide order dated 13.05.2015. No right has accrued to the petitioner to get mutated the name in the Revenue Records. Therefore, the appeal was rejected.

2 MP-26-2021 It is argued that the aforesaid order is of no effect as the same was not put to execution within a period of twelve years by the respondent and the Will is admittedly in favour of the petitioner, therefore, the mutation should has been done in favour of the petitioner.

Heard learned counsel for the petitioner and perused the record.

From perusal of the record it is seen that the mutation has been sought only on the basis of Will dated 06.07.1988 executed in favour of the petitioner by Late Shri Ganga Prasad. The Law with respect to the mutation on the basis of Will which is disputed is settled by Coordinate Bench of this Court in the case of Rasool Khan (Dead) through Legal Heirs and Ors. Abdul Aziz Khan passed in M.P. No. 3263/2020 wherein, the Court has held as under:-

''The Punjab and Haryana High Court in the case of Rajinder Singh And Another Vs. FinancialCommissioner as decided on 21st March, 2013 in Civil Writ Petition No.3821/2011 has held that validity of ''Will'' can be decided by the Civil Court which has exclusive domain over such matter and this cannot be decided by the Revenue Courts.

Heard the Learned Counsel for the parties.

A similar view has been taken by a Coordinate Bench of this Court by order dated 06/04/2017 passedin Writ Petition No.1820 of 2011 (Akshay Kumar vs. Smt. Ramrati Pandey and Ors.). Thus, it is held that the Revenue Courts have no jurisdiction to decide the rights of any party on the basis of ''Will'' and if somebody wants to claim his/her title over any property, then he/she has to seek declaration from the Civil Court of competent jurisdiction. Accordingly, this Court is of the considered opinion that the Additional Commissioner, Gwalior Division, Gwalior has committed material illegality by restoring back theorder passed by Tahsildar, by which the names of the respondents were mutated on the basis of ''Will'' executed by one Sughar 3 MP-26-2021 Singh.''Accordingly, order dated 25/04/2019 passed by Additional Commissioner, Gwalior Division, Gwalior in Case No.176/2017-18/ Appeal is hereby set aside, and the order passed by SDO, Gwalior City, District Gwalior in Case No.23/2016-17/Appeal is hereby restored.

The application filed by the respondents under Section 109 and 110 of MP Land Revenue Code ishereby rejected. The respondents are granted liberty that if they so desire, then they can seek declaration from theCivil Court of Competent jurisdiction.

With aforesaid observations, this petition is allowed. '' A similar view has been taken by this Court in the case of

Kalyan Singh vs. Gangotri Bai and Another,by order dated 21/08/2019 passed in MP No.3460 of 2019.

Thus, it is well-established principle of law that the revenue authorities have no jurisdiction to decidethe genuineness of the ''Will'' and it is only for the Civil Court to decide that whether the ''Will'' was executed or not ?

Even from perusal of the record it is seen that the petitioner has already lost the civil suit vide judgment and decree dated 13.05.2015. Thus, considering the overall facts and circumstances of the case, no illegality has been committed by the authorities in passing the impugned order. The petition sans merits and is accordingly, dismissed. No order as to costs.

(VISHAL MISHRA) JUDGE

(LJ*)

LOKENDRA JAIN 2021.04.08 14:34:58 -07'00'