JAHAR SINGH Vs. SHYAMLAL

JUDGEMENT

(1.) The present petition has been filed challenging the order dated 17.05.2019 passed by the Board of Revenue whereby the order passed by the subordinate authorities has been set aside.

(2.) It is alleged that the order impugned is contrary to law and without following the due procedure as prescribed under law. It is submitted that an application for mutation has been filed before the Tahsildar by the respondent No.1 on the basis of a Will said to have been executed by Smt. Kausiya who is mother of the petitioners and on such an application the Tahsildar without following the due procedure as required for mutation has allowed the application vide order dated 25.05.2015 and the name of the respondent was entered in the revenue records. On getting the information the petitioners raised their objections on the Will in question and have alleged that the Will is a forged and fabricated Will and is prepared with an intention to snatch the rights of the petitioners who are the legal heirs of Smt. Kausiya. An appeal was preferred against the order dated 25.05.2015 before the Sub Divisional Officer Pichhore challenging the legality and validity of the order and the learned SDO vide its order dated 15.02.2017 has set aside the order passed by the Tahsildar giving a specific finding in favour of the petitioners. It was held that the Will involved appears to be a suspicious document and in absence of production of the original Will before the authorities it cannot be presumed that the Will in question is proved. Against the order dated 15.02.17 an appeal was preferred before the Additional Commissioner Gwalior, Division Gwalior and vide order dated 21.05.2018 the order passed by the SDO was affirmed giving a specific finding with respect to the perversity done by the Tahsildar. The respondent No.1 has challenged the aforesaid order dated 21.05.2018 before the Board of Revenue. The learned Board of Revenue violating all the norms and without any application of mind merely on submitting the Will in question by the respondent No.1 before the Board of Revenue has allowed the revision. Counsel for the petitioners has submitted that the original Will was never produced before the learned Court below i.e. before the Tahsildar, SDO or even the Additional Commissioner. It is further submitted that claiming mutation on the basis of the Will which is challenged by the other party is beyond the scope of jurisdiction of the revenue authorities. It is submitted that the genuineness of the Will can only be examined by the competent civil courts. Thus, he submits that the order impugned is per se illegal and deserves to be quashed.

(3.) Per contra counsel for the respondent submits that the order passed by the learned Board of Revenue is proper and the same has been passed after providing opportunity of hearing to the petitioners. It is further submitted that the learned Board of Revenue after taking into the consideration the original Will in question has passed the order impugned and has remanded the matter back to the Sub Divisional Officer after setting aside the order passed by the SDO as well as Additional Commissioner, for rehearing of the matter. It is submitted that the name of the respondent has already entered into the revenue records in pursuance to the order passed by the Board of Revenue. This petition is under Article 227 of the Constitution of India having a very limited scope as the High Courts are exercising the revisional jurisdiction. He has prayed for dismissal of the writ petition.