Madhya Pradesh High Court
Lakhan Ahirwar vs Jhaluwa Ahirwar on 22 March, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 22nd OF MARCH, 2025
WRIT PETITION No. 40669 of 2024
LAKHAN AHIRWAR
Versus
JHALUWA AHIRWAR AND OTHERS
Appearance:
Shri Janak Lal Soni - Advocate for the petitioner.
Shri Anoop Kumar Saxena, Advocate for the respondent No. 3.
ORDER
By way of present petition challenge is made to the order Annexure
P/1 dated 28.11.2024 passed by the Additional Commissioner thereby
rejecting the appeal against the order dated 05.04.2024 passed by the S.D.O.
on the ground of limitation whereby the SDO had set-aside the mutation
order passed by the Tahsildar on 22.05.2015 and remanded the matter back
to the Tahsildar.
2. Learned counsel for the petitioner submits that the petitioner is a
grandson of late Baiyan Ahirwar who had executed a will in his favour on
24.01.2011 and he filed application for mutation on the basis of the will.
Undisputedly the said case was contested by the present respondents No. 1 to
3 on the ground that the alleged will is a forged will and Tahsildar allowed
mutation on the basis of the will. It is argued that appeal was filed with much
delay before SDO and SDO erroneously condoned the delay and set-aside
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the order of Tahsildar by remanding the matter back to the Tahsildar for
causing enquiry into the validity of will by passing proper order for mutation
of land. The said order was challenged by the petitioner before the
Additional Commissioner who rejected the appeal of the petitioner on the
ground of limitation. It is contended that the appeal of the petitioner was time
barred by only seven months and there were sufficient reasons made out to
condone the delay and the matter may be remanded back to Additional
Commissioner or remanded to SDO because the SDO while allowing the
appeal of the respondents did not hear the present petitioner.
3. Par contra, the order is vehemently supported by learned counsel
for the respondents by submitting that the will in favour of the present
petitioner is being disputed by the respondents No. 1 to 3 and under these
circumstances no mutation can be entertained by the Tahsildar and no
enquiry into validity of will can be carried out by the Tahsildar in light of
the judgment of Full Bench of this Court recently passed in W.P. No.
3499/2022.
4. Upon hearing the counsel for rival parties, it it seen that there is a
will in favour of the petitioner which is being disputed by the respondents
No. 1 to 3. The Tahsildar while allowing the mutation had also noted the
position that the will is being disputed by the respondents No. 1 to 3 who are
the sons of testator.
5. It has recently been held by the Full Bench of this Court that
Tahsildar has no authority to carry out mutation on the basis of will once the
will is disputed by successor of the testator or any other person having
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interest. It has been held by the Full Bench in W.P. No. 3499/2022 that
validity of the will cannot be ascertained by the Tahsildar in the course of
mutation proceedings and this dispute has to be got adjudicated from the
Civil Court before the revenue authority dwell on the aspect of mutation. It
has further been held in para 74 of the aforesaid order that it would be for the
propounder of the will to approach the civil court in case of the will is
disputed by the other side before he can seek mutation on the basis of will.
6. Therefore, in view of the judgment of the Full Bench remanding
the matter either to the SDO or to the Additional Commissioner would be
futile exercise because in cases of disputed will the Tahsildar would have no
authority either to adjudicate on validity of will or to carry out mutation on
the basis of disputed will.
7. Therefore, present petition is disposed of by setting aside the
orders Annexure P/1, P/2 & P/4 passed by the Additional Commissioner,
SDO and Tahsildar respectively. The petitioner is set at liberty to approach
the Civil Court and seek appropriate orders/injunction from the Civil Court.
8. If the petitioner fails to get any injunction from the Civil Court
within a period of three months from today, then the respondents No. 1 to 3
shall be at liberty to file an application for mutation on the basis of natural
succession before the Tahsildar which would obviously be subject to any
order to be passed in civil litigation in the matter of validity of will.
9. In view of the aforesaid, petition is disposed of.
(VIVEK JAIN)
JUDGE
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MISHRA
