LACHHIRAM Vs. KANNA

JUDGEMENT

(1.) This is a revision against the order of the Additional Collector, Udaipur, dated 23.10.58

(2.) We have heard the learned counsel for the parties and examined the record as well. On death of one Deva mutation proceedings were started before the village Panchayat Thamla. Applicant Lachhiram had applied for mutation in his favour. During the course of proceedings on 25.5.58 the opposite party Kana appeared on the stage and claimed mutation on the basis of possession and succession. The village Panchayat on 25.5.58 passed an order that his claim be entered in Mutation Register (Namantar Karan Khola Jave) and finally decided the matter on 17.8.58 in favour of the opposite party. An appeal was preferred against this order by the applicant to the Additional Collector, Udaipur. The learned Additional Collector held that as the applicant had not appealed against the order of village Panchayat, dated 25.5.58 by which the mutation was ordered to be opened in the name of the opposite party and that as the possession over the land was that of the opposite party and the applicant had not been able to have His title decided the mutation could not have been sanctioned in his name and dismissed the appeal. In this revision it has been urged that the order dated 25.5.58 passed by the Village Panchayat was not a final order deciding the mutation but only an order to enter the claim of the opposite party in the Register of Mutation and that in cases of mutation arising due to death of any holder on the basis of inheritance alone could not be the guiding factor of sanctioning the same. There is force in these contentions. Manifestly the order of the village Panchayat, dated 25.5.58 was an interlocutory order and the final order in the matter has been passed on 17.8.58. The learned counsel for the opposite party has also conceded it. As to decision on the claims of inheritance by way of mutation 1957 R.R.D. 170 Gulji Ram vs. Mst. Soni Devi may be referred to wherein it has been held that even though it may be beyond the province of a Revenue Officer to go into intricate questions of law affecting the legal rights of the parties, in inheritance cases it was neither feasible nor equitable to decide only on the basis of the possession without some enquiry into title, In disputed cases of inheritance comparatively little stress was to be placed upon possession as it was not often true evidence of the right. Apparent right was held to be the rule of decision. In such cases, relying on 1940 P.C. 93 as well as 5 P.R. 1912 (Rev.) wherein it was observed "possession as evidence of title has a different value in two classes of cases (cases of inheritance and cases of transfer). The possession of the alert heir who is on the spot and makes the most of his opportunities to circumvent the claims of his rivals by seizing the property of the deceased right holder as soon as the breath leaves his body, does not count for very much as evidence of title. On the other hand, the possession of the right holder who all along has been in possession and whose title is impugned by a transferee under an alleged contract counts for a very great deal. Mutation officers are very chary of deciding against possession in the latter class of cases and rightly so. They decide in favour of possession because an alleged contract of sale, mortgage, gift or the like, not followed by possession, when disputed by the alienor who remains in possession, it is not regarded as a "fact proved to have occurred" within the meaning of sec. 37 (a) of the Land Revenue Act, or, to adopt the language of Barkleys Direction "the truth of the transer" has not been proved. In some cases and specially inheritance cases, as above explained, it is often not feasible or not equitable to decide on the basis of possession without some inquiry into title".

(3.) As the orders of the learned Additional Collector have been passed more in breach of these basic principles than in observance thereof we hope that he has acted illegally and with material irregularity in the exercise of his jurisdiction.