Madhya Pradesh High Court
Gurudwara Databandi Chhod Kila Gwalior ... vs Mandir Shri Kalidevi on 8 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR-IV
ON THE 8 th OF MAY, 2024
MISC. PETITION No. 7009 of 2023
BETWEEN:-
GURUDWARA DATABANDI CHHOD KILA GWALIOR
THROUGH SEVADAR BABA LAKKHA SINGH S/O LATE
SHRI UTTAR SINGH, AGED ABOUT 63 YEARS,
OCCUPATION : SEVADAR GURUDWARA BANDICHHOD
KILA GWALIOR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MOHAN LAL BANSAL - ADVOCATE)
AND
MANDIR SHRI KALIDEVI GRAM GHATAMPUR, TAHSIL
AND DISTRICT GWALIOR THROUGH PRABANDHAK
COLLECTOR, NEW COLLECTORATE BHAWAN, CITY
CENTER GWALIOR (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SHIRAZ QURESHI - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Petitioner assails the order dated 16.10.2023 passed by Additional
Commissioner, Gwalior Division, Gwalior in Case No.183/2016-17/Appeal
titled as Mandir Shri Kali Devi Gram Ghatampur Vs. Gurudwara Databandi
Chhod Kila, Gwalior, in and by, which learned Additional Commissioner
allowed the appeals and directed the Collector, Gwalior to correct the record in
view of the order of High Court.
2. Brief facts as emerged from the impugned judgment are that one
Lakkha Singh applied for mutation on the basis of Will over the land bearing
Survey Nos.72, 75, 76, 77, 79 situated in village Ghatampur before the
Tahsildar concerned. Tahsildar directed the mutation in favour of Baba Lakkha
Singh on the basis of Will.
3. Being aggrieved with the order of Tahsildar, appellant/respondent filed
a n appeal before the Sub-Divisional Officer concerned alleging that appellant
had filed a suit for declaration of title, injunction and restoration of possession
in the Court of 8th Additional District Judge, Gwalior, which came to be
dismissed on 29.12.2005. Appellant/respondent filed second appeal before the
Commissioner which has been allowed. Thus, present petition has been filed.
4. Learned counsel for the petitioner, inter alia, submits that disputed
land was owned by one Devi Singh and his name was recorded in the revenue
record. Devi Singh executed a sale deed in favour of Gurudwara Committee
through Baba Harbhajan. Name of Harbhajan Singh got recorded in the revenue
record on the basis of alleged sale deed. Thereafter, Harbhajan Singh died but
before his death, during his life time, he executed a Will in favour of Gurudwara
Committee. Baba Lakkha Singh Sewadar applied for mutation in favour of
Gurudwara on the basis of Will executted by Baba Harbhajan Singh before the
Tahsildar, who passed the order dated 28.07.2012 directing the mutation on the
basis of Will. Learned Commissioner committed an error in allowing the
revision. Learned counsel for the petitioner prays that petition be allowed and
order of learned Commissioner be set aside.
5. Per contra, learned Government Advocate appearing for the Collector,
Gwalior opposed the submissions made by learned counsel for the petitioner
and submitted that admittedly, mutation application was made by respondent
before the Tahsildar on the basis of Will executed by Harbhajan Singh and it is
settled legal position that revenue authority has no right to determine the right of
parties on the basis of Will. It is the Civil Court, not the Revenue Court, that
can examine right of parties. Learned Tahsildar committed an error of law in
passing the mutation order on the basis of Will and in the same manner, SDO
dismissed the appeal. Learned Government Advocate supports the order of
Additional Commissioner by submitting that order of learned Commissioner is
proper and it needs no interference.
6. Admittedly, application for mutation in favour of petitioner was moved
on the basis of Will deed and Tahsildar had no right to direct the mutation on
the basis of Will deed.
7. The moot question for consideration is as to whether the revenue
authorities have jurisdiction to mutate the name of a beneficiary on the basis of
Will or not?
8. The question is no more res integra.
9. The Supreme Court in the case of Jitendra Singh v. State of
Madhya Pradesh by order dated 06.09.2021 passed in SLP (civil)
No.13146/2021 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. Thus, it is clear that if the beneficiary wants to take advantage of a
Will, then he has to seek a declaration from the Civil Court of competent
jurisdiction and the revenue authorities have no jurisdiction to mutate the name
on the basis of Will.
11. Learned Commissioner categorically recorded its finding that between
the parties, a case has been pending before the High Court which has been
decided in 1954, by which it appears that question of possession was involved
and second appeal has been allowed by the High Court setting aside judgment
and decree of District Judge. Judgment of Trial Court was restored with some
modification. Thus, impugned order of learned Commissioner is basically
based upon the judgment of High Court.
12. Learned counsel for the petitioner has neither filed the judgment of
High Court nor order of SDO and Tahsildar. It is also settled position that High
Court can go deep in the factual issues, like an appeal, in exercise of jurisdiction
under Article 227 of the Constitution of India.
13. Considering the entire facts and circumstances of the case, rival
submissions of learned counsel for the parties and legal position discussed
herein before, I do not find any merit warranting interference with the impugned
judgment.
14. In view of the above, petition fails and is, accordingly, dismissed.
(RAJENDRA KUMAR-IV)
JUDGE
Abhi
