Madhya Pradesh High Court

Rafat Khan vs Ku. Huda Khan on 2 May, 2023

Author: Gurpal Singh Ahluwalia

                                 1                           MP No.265/2021


 IN THE HIGH COURT OF MADHYA PRADESH
             AT JABALPUR
                      BEFORE
   HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 2nd OF MAY, 2023
            MISC. PETITION No. 265 of 2021
BETWEEN:-
RAFAT KHAN D/O LATE MOHD. AZAM
KHAN,   AGED   ABOUT   40  YEARS,
OCCUPATION: ADVOCATE 20 KOTWALI
ROAD MAHAL TABBA MIYAN BHOPAL MP.
(MADHYA PRADESH)


                                                                .....PETITIONER
(BY SHRI SHIV KUMAR SHARMA - ADVOCATE )

AND

1.   KU. HUDA KHAN D/O MOHD. AKRAM
     KHAN, AGED ABOUT 22 YEARS,
     KARAHIA HOUSE B-109 HOUSING
     BOARD COLONY KOH-E-FIZA BHOPAL
     MP (MADHYA PRADESH)



2.   KU. RASHA KHAN D/O MOHD. AKRAM
     KHAN, AGED ABOUT 20 YEARS,
     KARAHIA HOUSE B 109 HOUSING
     BOARD COLONY KOH E FIZA (MADHYA
     PRADESH)


                                                             .....RESPONDENTS
(BY SHRI VIVEK BADERIYA - ADVOCATE )

      This petition coming on for admission this day, the court passed the

following:

                                ORDER

This Miscellaneous Petition, under Article 227 of the Constitution of India, has been filed against the order dated 18.12.2020 passed by Additional Collector, Raisen in Case No.02/Revision/2020-21 and order dated 23.06.2020 passed by Naib Tahsildar in Case No.194/A-6/2019-20.

2. It is submitted by the counsel for the petitioner that the respondents moved an application for mutation of their names on the basis of a Will executed by Smt. Rasool Bi. An objection was raised by the petitioner but the said objection was rejected by Naib Tahsildar by holding that since the father of the petitioner had pre-deceased the testator, therefore, under the Muslim Law he has no right.

3. It is also submitted that the revenue authorities have no jurisdiction to decide the rights of the parties and if the respondents want to claim that the petitioner does not have any right in the property in dispute, then they must seek a declaration from the Civil Court of competent jurisdiction.

4. It is further submitted that the mutation entry is only for the fiscal purposes and the mutation would not confer any title on any of the party.

5. To buttress his contention, the counsel for the petitioner has also relied upon the judgment passed by the Supreme Court in the case of Jitendra Singh v. State of Madhya Pradesh, decided on 06.09.2021 passed in SLP (civil) No.13146/2021. He has also relied upon the judgment passed by the Supreme Court in the case of H. Lakshmaiah Reddy v. L. Venkatesh Reddy, reported in (2015) 14 SCC 784.

6. Per contra, it is submitted by the counsel for the respondents that Naib Tahsildar did not commit any mistake by adjudicating the rights of the parties in the light of the Muslim Law.

7. Heard the learned counsel for the parties.

8. The undisputed fact is that the respondents had filed an application for mutation of their names on the basis of Will purportedly executed by Rasool Bi. Admittedly, the petitioner has been deprived from the property. Whether the petitioner has a right under the Muslim Law or not, can be adjudicated by the Civil Court of the competent jurisdiction only. The revenue authorities cannot adjudicate the rights of the parties.

9. The Supreme Court in the case of Jitendra Singh (supra) has held as under:-

"6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.

6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai

Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70."

10. The Supreme Court in the case of H. Lakshmaiah (supra) has held as under :-

"8. As rightly contended by the learned Senior Counsel appearing for the appellants, the first defendant did not relinquish or release his right in respect of the half- share in the suit property at any point of time and that is also not the case pleaded by the plaintiff. The assumption on the part of the High Court that as a result of the mutation, the first defendant divested himself of the title and possession of half-share in suit property is wrong. The mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue. The observations of this Court in Balwant Singh case are relevant and are extracted below: (SCC p. 142, paras 21-22) "21. We have considered the rival submissions and we are of the view that Mr Sanyal is right in his contention that the courts were not correct in assuming that as a result of Mutation No. 1311 dated 19-7-1954, Durga Devi lost her title from that date and possession also was given to the persons in whose favour mutation was effected. In Sawarni v. Inder Kaur, Pattanaik, J., speaking for the Bench has clearly held as follows: (SCC p. 227, para 7) '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.'

22. Applying the above legal position, we hold that the widow had not divested herself of the title in the suit property as a result of Mutation No. 1311 dated 19-7-1954. The assumption on the part of the courts below that as a result of the mutation, the widow divested herself of the title and possession was wrong. If that be so, legally, she was in possession on the date of coming into force of the Hindu Succession Act and she, as a full owner, had every right to deal with the suit properties in any manner she desired. In the circumstances, we are of the opinion that the High Court erred in concluding that the first defendant by his conduct had acquiesced and divested himself of title of his half-share in suit property and the said erroneous conclusion is liable to be set aside."

11. The Supreme Court in the case of Suraj Bhan v. Financial Commr., reported in (2007) 6 SCC 186 has held as under :-

"9. There is an additional reason as to why we need not interfere with that order under Article 136 of the Constitution. It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. It is settled law that entries in the revenue records or jamabandi have only "fiscal purpose" i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court (vide Jattu Ram v. Hakam Singh). As already noted earlier, civil proceedings in regard to genuineness of will are

pending with the High Court of Delhi. In the circumstances, we see no reason to interfere with the order passed by the High Court in the writ petition."

12. Accordingly, the order dated 18.12.2020 passed by Additional Collector, Raisen in Case No.02/Revision/2020-21 and order dated 23.06.2020 passed by Naib Tahsildar in Case No.194/A-6/2019-20 are hereby set aside.

13. The Naib Tahsildar is directed to mutate the names of all the legal representatives of Rasool Bi. If the respondents are of the view that by virtue of Will, they have got the entire property then they can seek their declaration from the Civil Court of competent jurisdiction.