KASTURCHAND KEWALCHAND Vs. KAPURCHAND KEWALCHAND

JUDGEMENT

(1.) THIS is an application for revision against the order of the Commissioner, Raipur Division, dated 14-9-64 in Appeal No. 85-A/6 of 1963-64 under which he had set aside the orders of the lower Courts rejecting the non-applicant's application for mutation of his name in place of the deceased Bhumiswami Mst. Sonibai in respect of the land in question in which he claimed to have acquired a right on the basis of a gift deed executed in his favour by Mst. Sonibai. The lower Courts had ordered that the lands in question shall continue to be recorded in the name of the applicant Kasturchand alone as already ordered by the Revenue Inspector.

(2.) THE facts about which there is no dispute are that the applicant Kasturchand is the adopted son of Mst. Sonibai and was looking after the lands in question in her behalf during her life-time. It also appears that on the death of Mst. Sonibai, the name of the applicant Kasturchand had been entered in the mutation register as her successor-in-interest and the entry had been duly certified by the Revenue Inspector. After that the non-applicant had filed an application claiming mutation of his name in respect of 55.65 acres of land, out of the 80 acres or so held by Mst. Sonibai, which was allegedly transferred to him by her before her death by means of a registered gift deed. On going through the records of the case I am inclined to think that the decision of the Commissioner is not strictly in accordance with the provision of the rules framed under section 258 read with sections 108, 109 and 110 of the Madhya Pradesh Land Revenue Code, 1959. According to Rule 21 of these rules, disputes regarding mutation shall be decided summarily on the basis of possession, that is to say, the person who actually holds possession under a claim of title shall be recorded as a Bhumiswami. THE non-applicant did not claim to be in possession of the land. His claim is based simply on the title that he has allegedly acquired under a gift deed. His title may be the strongest as he claimed, but this can be taken to be the deciding factor only if there is doubt as to the actual possession. In this case there is no such doubt, as he himself does not claim to be in possession, while the other party does claim to be in possession and his possession is also under a claim of title as being the son of the deceased. In such a case the summary decision of the Revenue Court has necessarily to be in favour of the latter. THEn again, even where there is a dispute about the possession and the decision has to be made in favour of the person with the strongest title, the Revenue Court has to decide the question of title also summarily and cannot go into the intricate questions of the civil law for the determination of the relative strength of the titles of the contestants, which must of necessity be left to be decided by a civil Court. That is to say the question of the strongest title also has to be determined summarily, and in such a summary decision the natural heir of the deceased will obviously be considered to have the strongest title rather than the person who claims a title by transfer which is disputed. Thus either way it seems to me that the summary decision of a Revenue Court in a case like this must of necessity go in favour of the natural heir who is also in possession rather than in favour of a person who claims a title by transfer and does not claim to be in possession either.