Lokmani Jain vs Akhilesh Kumar Jain
2021 Latest Caselaw 6645 MP

1                                                   Writ Petition No.16920/2021



       THE HIGH COURT OF MADHYA PRADESH
                               JABALPUR

                  Writ Petition No.16920/2021
                          Lokmani Jain
                                 Versus
                Akhilesh Kumar Jain and Another

Date of Order                 22/10/2021
Bench Constituted         Single Bench
Order delivered by        Hon'ble Mr. Justice Sanjay Dwivedi
Whether approved          No
for reporting
Name of counsel for For petitioner: Mr. Monesh Sahu,
parties             Advocate.
                    For Respondents: Mr. Mohd. Adil

Usmani, Advocate Law laid down -

Significant Para Nos. -

Reserved on : 17.09.2021 Delivered on : 22.10.2021 (O R D E R) (22/10/2021)

1. The petitioner has filed this petition under Article 226 of the Constitution of India challenging the order dated 26.08.2021 (Annexure P/1) passed by the Additional Commissioner, Sagar Division, Sagar in Revenue Case No. 88/A-6/2020-21 by which the learned Additional Commissioner has quashed the orders dated 24.01.2020 and 22.08.2019 passed by learned Sub Divisional Officer, Bijawar, District Chhattarpur and Tehsildar, Tehsil Bakswaha respectively.

2. The respondents made an application for mutation of their name in the revenue record before the Tehsildar, Bakswaha, District Chhattarpur. The said application was filed

under Sections 109 and 110 of the M.P. Land Revenue Code, 1959 (for short, 'Code, 1959') for getting their name mutated over the land situated at Mouza Sunhaja Haar ad-measuring 24 acres, land situated at Paduwa Haar ad-measuring 3 acres, land situated at Raiyat Kudajani ad-measuring 5 acres, land situated at Virampura Haar ad-measuring 3 1/2 acres on the basis of a Will executed in favour of respondent no.1 by his father Shri Komalchandra Jain on 28.05.2013. The said Will got registered at the office of Registrar, Damoh.

3. The application for mutation was objected by the present petitioner and the Tehsildar rejected the said application on the ground that the Will, prima-facie appears to be suspicious as the same does not contain the description of the land which was bequeathed in favour of respondent no.1.

4. The respondents preferred an appeal before the Sub Divisional Officer challenging the order of the Tehsildar. The said appeal was rejected by the Sub Divisional Officer saying that the Will appears to be suspicious for the reason that the same was executed in respect of the land situated at District Chhattarpur but the same got registered in the office of Registrar, Damoh and the land which was the subject matter of Will does not contain any proper description, khasra number etc. and, therefore, on the basis of the said Will, application for mutation has rightly been rejected by the Tehsildar.

5. Against the orders passed by the Tehsildar and the Sub Divisional Officer, a second appeal was preferred by the respondents before the Additional Commissioner (Revenue), Sagar Division, Sagar, who, in turn, vide order dated 26.08.2021 which is impugned in this petition, set aside the orders of Tehsildar and Sub Divisional Officer and allowed the application for mutation on the ground that the revenue authority has no right to examine the correctness of the Will and has also observed that merely because khasra number has

not been shown in the registered Will, the same cannot be discarded at the time of considering the application for mutation, whereas according to the learned Additional Commissioner, the respondents got the Will proved beyond doubt as per requirement of Section 64 of the Evidence Act and Section 63 of the Succession Act.

6. The present writ petition has been filed by the petitioner challenging the order dated 26.08.2021 passed by learned Additional Commissioner (Revenue) on the ground that the application for mutation cannot be allowed only on the basis of Will. Learned counsel for the petitioner has placed reliance upon the judgments filed along with the written submissions passed in M.P. No. 5345/2019 (Avnish Kumar Vs. Satyaprakash) decided vide order dated 29.11.2019 and M.P. No. 23/2021 (Kusum Bai and another Vs. Ummedi Bai) decided vide order dated 16.02.2021.

7. Learned counsel appearing for the respondents submitted that father of the respondent no.1 Shri Komalchandra Jain, the executor, made a complaint against the present petitioner and his wife to the police about their cruel attitude towards him indicating that he was not happy with them because both had treated him badly. Learned counsel also submitted that the order passed by the Additional Commissioner does not suffer from any material illegality in view of the rules made by the Legislature and was notified in the State Gazette on 04.01.2019 known as 'Madhya Pradesh Bhu Rajaswa Sanhinta (Bhu- Abhilekho mai Namantran) Niyam, 2018' (for short, 'Rules, 2018'). The said rules were framed in pursuance to Section 258 of the Code, 1959. The said rules very categorically provides that the mutation application can be considered on the basis of the Will. He further submits that even otherwise, if according to the present petitioner the Will was fraudulently obtained and was not genuine, a civil suit can be filed challenging the

correctness of the said Will and the Civil Court is the only competent Court of law to give verdict about the sanctity of the Will but it is not the revenue Court which can go into the said question and observe that the Will appears to be suspicious. The revenue authorities like the Tehsildar and the Sub Divisional Officer without considering this aspect, rejected the application for mutation and, therefore, the learned Additional Commissioner has rightly set aside those orders and allowed the application. The writ petition, according to learned counsel for the respondents, is without any substance and is liable to be dismissed.

8. I have heard the rival contentions of learned counsel for the parties and also perused the record. I have also seen the provisions of the Rules, i.e. Rules, 2018. However, the judgments on which learned counsel for the petitioner is placing reliance has not considered the provisions of the said Rules, 2018. I have no hesitation to say that the Will on the basis of which mutation was sought by the respondents, was a registered Will and if the petitioner has any objection with regard to sanctity of the said Will, he should have filed a civil suit challenging the validity of the said Will. Needless to say that the revenue entries are not the documents of title and if Civil Court gives any verdict regarding the alleged Will, the said verdict will prevail over the order of the revenue authority and on the basis of the decree passed by the Civil Court, the revenue entries can be corrected at any time. In the present case, Tehsildar and the Sub Divisional Officer have exceeded its jurisdiction, examined the validity and correctness of the Will on the ground that the same appears to be suspicious due to some short-coming, rejected the application for mutation. On the contrary, the provisions of the Rules 2018 contain that the required documents on the basis of which mutation can be made in the revenue record, a Will is one of that document and, therefore, I do not find any illegality and material irregularity

in the order passed by learned Additional Commissioner (Revenue), Sagar Division, Sagar, which is impugned in this petition. So far as the judgments relied by the petitioner are concerned, those judgments although laid down the same ratio but not appreciated the fact that the rules made specifically in regard to mutation in revenue record and document, i.e, "Will" is one of the important document on the basis of which mutation application can be considered. Thus, the order passed by the Additional Commissioner (Revenue), Sagar Division, Sagar, in my opinion, does not call for any interference.

9. The writ petition is without any substance and, accordingly, the same is hereby dismissed.

(SANJAY DWIVEDI) JUDGE

rao Digitally signed by SATYA SAI RAO Date: 2021.10.23 18:41:11 +05'30'