Rajasthan High Court - Jodhpur

Mst. Gyarsi Bai vs Board Of Revenue, Ajmer And Ors on 31 October, 2023

Bench: Pushpendra Singh Bhati

[2023:RJ-JD:31466]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3474/1998

Mst. Gyarsi Bai

----Petitioner Versus Board Of Revenue, Ajmer And Ors

----Respondent

For Petitioner(s) : Mr. Abhinav Jain For Respondent(s) : Mr. L.K. Purohit, G.C.

Mr. Rakesh Arora

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 20/09/2023 Pronounced on 31/10/2023

1. The matter pertains to the year 1998, and thus, listed under

the category of "Oldest Cases for Early Disposal".

2. This writ petition under Article 226 of the Constitution of

India has been preferred claiming the following reliefs:

"(i) by an appropriate writ, order or direction the impugned orders vide Annexure-1 dated 13.3.95 passed by Sub- Divisional Officer, Annexure-2 dated 24.4.95 passed by Revenue Appellate Authority, Chittorgarh and Annexure-3 dated 23.6.98 passed by the Board of Revenue Ajmer be quashed and set aside and the suit of the Petitioner be decreed with costs as prayed for.

(ii) by an appropriate writ, order or direction, the respondent No.4 be restrained not to interfere in the peaceful possession of the land in dispute situated at Kotrikalan.

[2023:RJ-JD:31466] (2 of 12) [CW-3474/1998]

(iii) any other appropriate order or direction which this Hon'ble Court deem just and proper by passed in favour of the Petitioner.

(iv) Costs of the writ petition be allowed to the Petitioner."

3. As per the pleaded facts, the petitioner instituted a suit

bearing no.210/234 under Sections 88 & 188 of the Rajasthan

Tenancy Act, 1955 (hereinafter referred to as 'Act of 1955') for

declaration and permanent injunction, against the respondent

no.4-Parasmal and one Shantilal s/o Shobhalal, before the learned

Sub Divisional Officer (SDO), Nimbaheda, in relation to Khasra

No.24 measuring 4 Biswa, and Khasra No.25 measuring 2 Bighas

and 6 Biswas, in all 6 Bighas and 7 Biswas land, situated in Village

Kotrikalan, Nimbahera.

3.1. As per the petitioner, the land in question was gifted to her in

the year 1952 by Shri Shobhalal as he treated the petitioner as his

own daughter.

3.2. Thereafter, the mutation was made in the name of petitioner

on 07.03.1955 and her name was accordingly entered in the

Annual Register on coming into force of the Act of 1955, from

15.10.1955; in addition, mutation no.37 was made on

14.06.1962.

3.3. Subsequently, Shri Shobhalal died in the year 1981,

whereafter the respondent no.4 and Shantilal threatened to

dispossess the petitioner from the land in question, whereupon the

petitioner filed the aforementioned suit; however, the same was

dismissed vide the impugned judgment dated 13.03.1995.

Aggrieved of the impugned judgment of the learned SDO, an

[2023:RJ-JD:31466] (3 of 12) [CW-3474/1998]

appeal was preferred before the Revenue Appellate Authority

(RAA), Chittorgarh which was dismissed vide the impugned

judgment dated 24.04.1995, while holding that the petitioner had

no right to institute a suit against Khatedar Parasmal (respondent

no.4 herein).

3.4. Consequently, the petitioner preferred a second appeal

before the learned Board of Revenue (BoR) for Rajasthan, Ajmer;

however it was dismissed, while maintaining the findings of the

revenue courts below vide the impugned judgment dated

23.06.1998. Aggrieved of the above impugned judgments of the

SDO, RAA & BoR, the present petition has been preferred claiming

the afore-quoted reliefs.

4. Learned counsel for the petitioner submitted that the land in

question belonged to Late Shri Shobha Lal and the petitioner was

in sub tenancy, whereafter it was orally gifted to the petitioner as

Late Shri Shobhalal treated her as a daughter; further, the private

respondent had tried to illegally dispossess the petitioner.

4.1. It was further submitted that mutation no.9 was made in

favour of the petitioner and her name was recorded in Annual

force, mutation no.37 was recorded in her name; thus by virtue of

Sections 15 & 19 of the Act of 1955, the petitioner became the

Khatedar of the land in question.

4.2. It was also submitted that the only piece of evidence

submitted by the private respondent was a registered Will and

only on the basis of this one document, the impugned judgments

were passed in favour of the private respondent.

[2023:RJ-JD:31466] (4 of 12) [CW-3474/1998]

4.3. In furtherance, issue no.3 was formulated with respect to

execution of the alleged Will in favour of the private respondent

and its effect on the suit, and pertaining thereto all the three

learned revenue courts below held that since the Will was

registered, thus the private respondent was owner of the land in

question; however, it is a settled proposition of law that revenue

courts do not have any right to decide the validity of Will.

4.4. It was also submitted that as per Section 68 of Indian

Evidence Act, 1872, a Will can be used as evidence only when an

attesting witness has been called for the purpose of proving its

execution; further, the proviso to the said Section 68 clearly

makes an exception for Will from documents, which need not

require attestation, if the same are registered. In furtherance,

Section 63 of the Indian Succession Act, 1925, provides for

execution of unprivileged Wills and according to Clause (c) a will is

required to be attested by two or more witnesses, and thus issue

no.3 in question could not have been decided in favour of the

private respondent solely on the basis of the Will being registered.

For ready reference, Section 68 of the Indian Evidence Act, 1872

and Section 63 of the Indian Succession Act, 1925 is reproduced

as hereunder:

"68. Proof of execution of document required by law to be attested-

If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.

[2023:RJ-JD:31466] (5 of 12) [CW-3474/1998]

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." "63. Execution of unprivileged wills.--

Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1[or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:--

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

4.5. Learned counsel, in support of such submissions, placed

reliance on the following judgments:

(a) Smt. Jaswant kaur v. Smt. Amrit Kaur & Ors. (1977) 1 SCC

369;

(b) Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria &

Ors. (2008) 15 SCC 365;

(d) Balveer Singh & Ors. v. Board of Revenue & Ors. (Civil Writ

Petition No.187/73, decided by a Coordinate Bench of this Hon'ble

Court on 07.04.1983; and

(e) Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729

[2023:RJ-JD:31466] (6 of 12) [CW-3474/1998]

4.6. It was further submitted that the petitioner had become

Khatedar of the land in question by virtue of adverse possession

as per the provision of Section 63 (1) (iv) and Section 182-A of

Act of 1955.

5. On the other hand, learned counsel appearing on behalf of

the respondents, while opposing the aforesaid submissions made

on behalf of the petitioner, submitted that Late Shri Shobhalal

never treated the petitioner as his own daughter and neither did

he gift the property to her; furthermore, it is settled proposition of

law that an immovable property cannot be gifted orally.

5.1. It was further submitted that the petitioner was not in

possession of the land in question at the time when the Act of

1955 came into force, thus, the averment that by virtue of

Sections 15 & 19 of the Act of 1955, the petitioner had become

Khatedar of the said land, is completely incorrect; further, the

averment of the petitioner, claiming himself to be a sub-tenant

(shikmi tenant) is also completely baseless, as there was clear

finding of the learned SDO that during the relevant time, a person

named Unkar was the sub-tenant. It was also submitted that no

mutation could be made for entering any person as sub-tenant in

accordance with provisions of law, as for the same, there needs to

be either succession or transfer of land, as has been observed in

the impugned judgments.

5.2. In furtherance, it was submitted that the plea of becoming

Khatedar by virtue of gift and the plea of becoming Khatedar

tenant by virtue of Sections 15 & 19 of the Act of 1955, are

contradictory.

[2023:RJ-JD:31466] (7 of 12) [CW-3474/1998]

5.3. It was also submitted that the averment of becoming

Khatedar by adverse possession through Section 63 (1) (iv) of the

Act of 1955, also does not hold ground as after the death of Shri

Shobhalal, the private respondent became the Khatedar of the

land in question by way of registered Will executed in his favour,

and even otherwise by virtue of Hindu Succession Act, the private

respondent would have become the Khatedar of the land in

question.

5.4. It was further submitted that the mutation is only a fiscal

measure to collect the land revenue and was not a document

proving a person's possession; further, the petitioner was not in

possession of the land in question since the past 40 years.

6. Heard learned counsel for the parties as well as perused

record of the case alongwith the judgments cited at the Bar.

7. This Court observes that the petitioner instituted

aforementioned suit before the learned SDO against the private

respondent herein and Shantilal s/o Shobhalal with respect to the

land in question, however the same was dismissed; whereafter an

appeal was preferred before the learned RAA which was also

dismissed and a second appeal against the same was preferred

before the BoR, which too was dismissed. The petitioner being

aggrieved of the three impugned judgments preferred the present

writ petition, wherein on 15.10.1998, an interim order was passed

by this Hon'ble Court for maintaining status quo with regard to the

land in question.

[2023:RJ-JD:31466] (8 of 12) [CW-3474/1998]

8. This Court further observes that the present controversy is

pertaining to the issue no.3 so formulated by the learned SDO;

the said issue no.3 is reproduced as hereunder:

"3& D;k oknxzLr vkjkth dks "kksHkkyky ewy [kkrsnkj us vius Hkrhts dks olh;r dj fn;k ftldk bl okn ij D;k vlj gSA izfroknh"

9. In accordance with the observations so made by the learned

SDO as well as the learned RAA in the impugned judgments,

whereby the private respondent was held to be Khatedar of the

land in question solely on the basis of the fact that the Will

produced by the private respondent was a registered document; in

addition, the learned SDO in the impugned judgment dated

13.03.1995 held that even without the Will, the private

respondent would become the Khatedar of the land in question;

however, the basis of deciding the issue no.3 was the exhibited

document i.e. the Will.

10. This Court also observes that it is a settled proposition of law

that title to property cannot be decided by revenue courts instead

the same can only be decided by a competent civil court, yet all

the three learned revenue courts below have decided issue no.3

and given the decision of respondent no.4 being the Khatedar of

the land in question based on the document of Will.

11. This Court is conscious of the judgment rendered by this

Court in the case of Narayan & Anr. v. Heera Lal & Ors. (SB

CWP No. 205/2023, decided on 22.08.2023), relevant portion

whereof is reproduced hereunder:

"11. This Court is also conscious of the judgment rendered by the Hon'ble Apex Court in the case of Jitendra Singh

[2023:RJ-JD:31466] (9 of 12) [CW-3474/1998]

(supra);relevant portion whereof is reproduced as hereunder:

"6. ....As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made."

12. This Court is further conscious of the judgment rendered by the Hon'ble Apex Court in Sawarni v. Inder Kaur, (1996) 6 SCC 223; relevant portion whereof is reproduced as hereunder:

"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."

Thus in light of the above said precedent law it is clear that the

question of title does not come under the purview of the revenue

courts, where the title itself is in dispute the role of civil courts

comes into play.

12. This Court also observes that even if the document of Will

was taken into consideration by the learned courts below yet the

same lacked in compliance of the provisions of Section 68 & 63 of

the Indian Evidence Act, 1872 as it is evident that in order to

consider a Will as a piece of evidence, the execution of the same

[2023:RJ-JD:31466] (10 of 12) [CW-3474/1998]

is required to be proved; however in the present case, as is clear

from the observations of the learned SDO and learned RAA, no

such witness had been called upon.

13. This Court is further conscious of the judgment rendered by

the Hon'ble Apex Court in the case of Ramesh Verma (Dead)

Through Legal Representatives v. Lajesh Saxena (Dead)

Through Legal Representatives & Anr., (2017) 1 SCC 257,

relevant portion whereof reads as under:-

"13. A will like any other document is to be proved in terms of the provisions of Section 68 of the Evidence Act and the Succession Act, 1925. The propounder of the will is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement."

14. This Court is also conscious of the judgment rendered by the

Hon'ble Apex Court in the case of Dhani Ram (died) through

LRs. & others v. Shiv Singh (Civil Appeal No. 8172 of 2009,

decided on 06.10.2023), relevant portion whereof is reproduced

as hereunder:

"23. Viewed in the context of the legal requirements and the law laid down by this Court, we find that neither of the attesting witnesses in this case fulfilled the mandate of Section 63(c) of the Act of 1925 to prove the Will. Though Lok Nath Attri claimed that Leela Devi affixed her signatures in the Will in their presence, which was

[2023:RJ-JD:31466] (11 of 12) [CW-3474/1998]

vehemently denied by the other attesting witness, Chaman Lal, the fact remains that Lok Nath Attri also did not state that he affixed his signatures in the Will in the presence of Leela Devi. This is one of the compulsory requisites of Section 63(c) of the Succession Act."

Thus it is evident from the aforesaid provisions of law that mere

registration of Will by itself cannot prove the genuiness of the

document.

15. This Court is conscious of Section 239 of the Act of 1955,

which provides for "Procedure when plea of proprietary right

raised"; relevant portion of the said provision of law reads as

under:-

"239. Procedure when plea of proprietary right raised

-- (1) If in any suit or proceeding in a revenue court, a question of proprietary right in respect of land forming the subject matter of such suit or proceeding is raised and such question has not previously been determined by a civil court of competent jurisdiction the revenue court shall frame an issue on the question of proprietary right and submit the record to the competent civil court for the decision of that issue only (2) The civil court, after re-framing the issue, if necessary, shall decide such issue only and return the record together with its finding thereon to the revenue court which submitted it.