Teekaram vs Prabhudayal
2021 Latest Caselaw 6769 MP

                                                                  1                               WP-20634-2020
                                        The High Court Of Madhya Pradesh
                                                 WP No. 20634 of 2020
                                                (TEEKARAM AND OTHERS Vs PRABHUDAYAL AND OTHERS)

                                4
                                Jabalpur, Dated : 25-10-2021
                                      Ms. Janhavi Pandit, learned counsel for the petitioner.
                                      Shri S.S Thakur, learned counsel for the respondent.

Shri Tapan Bathre, learned PL for the respondent/State. With the consent of parties, the matter be finally heard. Challenge being made to the order passed by Additional

Commissioner, Sagar and Sub-Divisional Officer, District Tikamgarh whereby the mutation order passed in favour of the petitioners have been quashed.

It is submitted that the petitioner is the owner of disputed land of 1/4 portion of land bearing Khasra Nos.171, 172,175/1200, 175/1201, Rakba No.1.619 and 1/8 portion of Khasra No.178, 180, 184 Rakba No.0.372 situated at Village Budaura, Tehsil Baldevgarh, District Tikamgarh. In pursuance to the same, the mutation of the petitioners were got done as per as the share of petitioners is concerned because the entire land was an ancestral

property. The Respondent No.1 has filed an application for mutation of his name on the disputed land and in pursuance to the same the Tehsildar has reversed the order passed in favour of the petitioner for mutation, only on the basis of Will. It is submitted that no mutation can be done on the basis of the Will, if will in question is objected by the other parties. The aforesaid aspect was considered and settled by this Court in M.P No.2989/2020 (Ramesh Singh Vs. Hotam Singh) decided dated 16/06/2021. It is submitted that the respondent was required to obtained a probate with respect to the Will in question and only thereafter he can establish his legal right for mutation of the property.

The aforesaid aspect with respect to issue being no more res integra Signature Not Verified SAN is not disputed by the counsel appearing for the respondent. Counsel

Digitally signed by PRARTHANA SURYAVANSHI Date: 2021.10.30 15:27:23 IST 2 WP-20634-2020 appearing for Respondent No.1 fairly submitted that as the issue stands settled therefore, liberty be extended to him to initiate appropriate proceeding before Civil Court for getting the probate with respect to the Will.

This Court in aforesaid in M.P No.2989/2020 (Ramesh Singh Vs. Hotam Singh) decided dated 16/06/2021 has held as under:-

Challenge being made to the order dated 21.10.2020 passed by

the Additional Commissioner Gwalior Division dismissing the appeal of the petitioner which was filed against the order dated 17.06.2019 passed by SDO Bhitarwar, whereby confirming the order dated 25.10.2018 passed by the Tahsildar regarding for mutation of the respondent No.1 which is claimed on the basis of the will executed by mother Vaikunthi Bai.

The Division Bench of this (Ramesh Singh & Anr. vs. Hotam Singh & Ors.) Court in W.A. No.1916/2019 vide order dated 14.02.2020 (Murari and Another Versus State of MP and Others) has dealt with the same proposition and it was held that it is only the civil courts jurisdiction to check the genuineness of the Will. Similar propositions have been laid down in Dharamveer Singh & Ors. vs. Rustam Singh & Ors., 2021 (1) RN 25, Ajay Singh vs. Smt. Rama Bai & Ors. 2021 (1) RN 28, Rasool Khan (dead) thr. Lrs. and Ors. vs. Abdul Aziz Khan, 2021 (1) RN 174 and Murari and another Vs. State of M.P. and others reported in 2020 (4) MPLJ 139. In such circumstances, the impugned orders are unsustainable and deserves to be set aside.

€œ6. The controversy involved in the present matter relates to title based on will, which is purely subject matter of Civil Court and can only be decided by the Civil Court, with the help of evidence adduced before it, by examining the attesting witnesses. It is also held in Rajinder Singh and Another vs. Signature Not Verified SAN

Digitally signed by PRARTHANA SURYAVANSHI Date: 2021.10.30 15:27:23 IST 3 WP-20634-2020 Financial Commissioner (decided by Punjab & Haryana High Court in Writ Petition No. 3821/2011) that validity of will can be decided by the Civil Court, which is the exclusive domain of Civil Court and this cannot be decided by the Revenue Courts.†Accordingly, considering the settled legal proposition, the impugned orders are unsustainable and are hereby set aside. The judgments passed by the Division Bench as well as by this Court in the aforesaid cases are applicable to the facts and circumstances of the present case with full force. The respondents who are claiming the benefit of mutation on the basis of the Will are at liberty to get probate of the Will from the competent civil

courts and thereafter get their names mutated in the revenue records.

With the aforesaid observations, the petition is allowed and disposed of. No order as to cost."

Considering the fact that the issue has no more res integra and looking to the reasonable prayer made by respondent No.1, the order impugned passed setting aside the mutation of the petitioner is perse illegal and accordingly, the order impugned dated 05/11/2020 and 19/09/2020 are quashed. The original order passed by Tehsildar regarding mutation of petitioners' name is restored.

Liberty is extended to the respondent No.1 to initiate appropriate proceedings before the incompetent civil court for declaration with respect to the Will in question.

With the aforesaid observation, the petition is disposed of.

(VISHAL MISHRA) JUDGE

Prar

Signature Not Verified SAN

Digitally signed by PRARTHANA SURYAVANSHI Date: 2021.10.30 15:27:23 IST