HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2062/2009 (M/S) Raj Kumari Padma Kumari. …Petitioner. Versus Shubham Kumar (Minor) Through his mother and natural guardian Smt. Arti Kumar W/0 Dr. S. Kumar, R/o 16-C, Green Park, Ballupur Road, Dehradun and others. …Respondents Shri Sharad Sharma Senior Advocate assisted by Kamlesh Lohani, Advocate for the petitioner, Shri V.K. Kohli, Senior Advocate assisted By Sri T.C. Pandey, Advocate for respondents. Dated: March 29, 2010 Hon’ble V.K. Bist, J. This writ petition has been filed by the petitioner against the order dated 21.10.2009 passed by III Addl. Civil Judge (Sr. Div.), Dehradun in Nagar Nigam Appeal no. 5 of 2006 ‘Master Shubham Kumar vs. Nagar Nigam, Dehradun and others’ whereby while allowing the appeal filed by the respondent no.1, the Nagar Nigam, Dehradun and the House Tax Committee, Nagar Nigan, Dehradun were directed to mutate the name of the appellant as well as the petitioner in the Municipal records. 2. Briefly stated that one late C.B. Singh executed a registered WILL on 21.08.2001 in favour of respondent no.1 in respect of the property in question. It is mentioned in the writ petition that subsequently on 2nd September, 2001 late C.B. Singh executed fresh WILL, which is said to be an unregistered document, in favour of the petitioner and cancelled the earlier WILL executed on 21.08.2001. 2 3. I have heard Shri Sharad Sharma, Senior Advocate assisted by Kamlesh Lohani, Advocate for the petitioner, Shri V.K. Kohli, Senior Advocate assisted By Sri T.C. Pandey, Advocate for respondent no.1 and perused the entire material available on record. 4. Submission of the petitioner is that on the basis of the subsequent will dated 02.09.2001, the petitioner moved application before the Nagar Nigam, Dehradun for mutating her name over the property in dispute which was never opposed by anyone. Accordingly, the Up Nagar Adhikari, Nagar Nigam, Dehradun passed an order on 18.03.2002 by which the name of the petitioner was mutated in the records of the Nagar Nigam, Dehradun. Aggrieved by the order passed by Up Nagar Adhikari dated 18.03.2002 the respondents filed Nagar Nigam Appeal no. 5 of 2006 before the Court of Civil Judge (Sr. Div.), Dehradun. Ultimately, the learned III Addl. Civil Judge (Sr. Div.), Dehradun passed order on 21.10.2009 whereby while allowing the appeal preferred by respondent no.1, the Nagar Nigam, Dehradun and the House Tax Committee, Nagar Nigan, Dehradun were directed to mutate the name of the appellant as well as the petitioner in the Municipal records. 5. The order impugned has been attacked mainly on the ground that the learned III Addl. Civil Judge has erred in law by allowing the appeal of respondent no.1 and by directing the authorities concerned for making entries of the respondent no.1 over the property in question, without appreciating the fact that no application for mutation was ever moved by the respondent no.1 before the Nagar Nigam, Dehradun and the Appellate Court on 3 his own has passed order for making entries of the name of the respondent no.1 in the records. Sri Sharad Sharma, the learned Senior Counsel for the petitioner argued that although the title over the property in question is yet to be adjudicated, but the Court below has erroneously directed for making entries of the name of respondent no. 1. 6. At this stage, Sri V.K. Kohli, the learned Senior Counsel for respondent no.1 has submitted that unless the order dated 18.03.2002 passed by the Un Nagar Adhikari, Nagar Nigam, Dehradun is set-aside, the respondent no.1 cannot move any application for mutation of his in respect to the property in question. 7. In reply to the arguments raised by the learned counsel for the respondent no.1, Sri Sharad Sharma, the learned Senior Counsel for the petitioners submitted that, in case, if the respondent no.1 applies before the authority concerned for mutation in lieu of the earlier WILL dated 21.08.2001 executed by late C.B. Singh during his lifetime in respect of the property in question, the same can be considered independently and on its own merits. 8. Having heard the learned counsel for the parties and after carefully examining the material available on record, I am of the opinion that since the respondent no.1 has yet not moved any application seeking mutation of his name before the authority concerned, the Appellate Court should not have directed for making entries of his name in the concerned records. Hence the impugned order dated 21.10.2009 passed by the III Addl. Civil Judge (Sr. Div.), Dehradun is liable to the set-aside. However, for proper adjudication of the matter, this Court thinks it fit to 4 remand the matter to the Appellate Court for deciding it afresh. 9. Consequently, the writ petition is allowed. The order dated 21.10.2009 passed by the III Addl. Civil Judge (Sr. Div.), Dehradun in Nagar Nigam Appeal no. 5 of 2006 is hereby quashed. The matter is remanded back to the Appellate Court with direction to decide the appeal afresh after affording adequate opportunity of hearing to both the parties. (V.K. Bist, J.) 29.03.2010 NCM: