1 S/2 S.B. CIVIL WRIT PETITION NO.2420/2004. Sri Kishan & Anr. Vs. Board of Revenue & Ors. ..... S/3 S.B. CIVIL WRIT PETITION NO.126/2004. Laxman Vs. Board of Revenue, Ajmer & Ors. ..... Date of Order :: 26th November 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Pankaj Sharma, for the petitioners in CWP No.2420/2004 and for the respondents in CWP No. 126/2004. Mr. Jitendra Chopra ] Mr. Mahesh Thanvi ], for the petitioner in CWP No.126/2004 and for the respondents in CWP No. 2420/2004. ..... BY THE COURT: These two writ petitions, CWP Nos. 2420/2004 and 126/2004, having been filed against the same order dated 18.06.2003 (Annex.5) as pased by the Board of Revenue for Rajasthan, Ajmer ('the Board') in Revision Petition No. 94/1997 have been heard together and are taken up for disposal by this common order. The dispute relates to mutation in the record of rights after demise of Moola Ram, father of the petitioners in these writ petitions. The petitioners Sri Kishan and Deep Chand (CWP No. 2420/2004) assert that mutation be effected in their favour with reference to a Will allegedly executed by late Shri Moola Ram; and such a claim is being resisted by the other petitioner Laxman (CWP No. 126/2004). By the impugned order dated 18.06.2003, the Board of Revenue has remanded the matter to the Tehsildar concerned for passing appropriate 2 orders afresh in relation to such mutation; and the contesting parties have filed these separate writ petitions being aggrieved of the directions so issued by the Board. There had been repeat rounds of litigation between the parties before passing of the impugned order by the Board of Revenue. In brief, the background facts and relevant aspects could be noticed thus : The said Shri Moola Ram was jointly a khatedar with his brothers Tulsi Ram and Shanker Lal, all sons of Magha Ram in relation to the land comprised in Khasra No. 45 at village Deegari, Tehsil Jodhpur measuring 2 bighas 13 biswas. After demise of Shri Moola Ram, in his place, the names of the petitioners of CWP No. 2420/2004, Sri Kishan and Deep Chand, were ordered to be mutated on 28.02.1983 by the Tehsildar, Jodhpur under Mutation Entry No. 159. The said mutation order was challenged by the other sons of Moola Ram, Laxman (petitioner of CWP No. 126/2004) and Ram Chandra; and the appeal preferred by them bearing No. 44/1990 was allowed by the Additional Collector, Jodhpur on 18.03.1991. The learned Additional Collector set aside the order passed by the Tehsildar and remanded the matter with the directions that the inquiry be held in relation to all the heirs of the deceased Moola Ram. The aforesaid order dated 18.03.1991 as passed by the Additional Collector, Jodhpur was challenged by the petitioners Sri Kishan and Deep Chand before the Additional 3 Divisional Commissioner, Jodhpur in Second Appeal No. 42/1991; however, this second appeal was dismissed by the order dated 04.06.1993. The Tehsildar, Jodhpur, thereafter, passed the order afresh in the matter on 12.07.1993 and directed that the mutation be effected in the names of Laxman, Ram Chandra, Deep Chand, and Sri Kishan all sons of Moola Ram and Smt. Rukma widow of Moola Ram. The said order dated 12.07.1993 was challenged by the petitioners Sri Kishan and Deep Chand in Appeal No. 104/1994 before the Collector, Jodhpur. In this appeal, the learned Collector was of the opinion that the Tehsildar had not carried out the requisite inquiry in the matter and observed that the deceased left behind 4 daughters also. In this view of the matter, the learned Collector allowed the appeal by the order dated 17.09.1996 and, while setting aside the order passed by the Tehsildar, again remanded the matter to the Tehsildar. The order so passed by the Collector, Jodhpur on 17.09.1996 was now challenged by Laxman (the petitioner in CWP No. 126/2004) in Appeal No. 76/1996 before the Additional Divisional Commissioner, Jodhpur. In his order dated 04.07.1997, the learned Additional Divisional Commissioner was of the opinion that the appellants before the Collector, Sri Kishan and Deep Chand, could not have been considered the persons aggrieved because their names 4 were also ordered to be recorded; and if there was any objection against the impugned order, that could have been taken by the daughters of the deceased khatedar but they had not raised any objection. The learned Additional Divisional Commissioner, therefore, proceeded to allow the appeal, set aside the order dated 17.09.1996 and restored the order as passed by the Tehsildar, Jodhpur but with the observations that in the event of the daughters of the deceased Moolaji making any claim, the Tehsildar would re-open and decide the matter after hearing all the parties. The order so passed by the Additional Divisional Commissioner, Jodhpur was challenged before the Board of Revenue in the aforesaid Revision Petition No. 94/1997 by the petitioners, Sri Kishan and Deep Chand, with the submissions that the deceased Moola Ram had executed a Will in their favour on 01.11.1970 and then, he expired on 11.11.1971 and, according to the petitioners, only their names were required to be entered in the revenue record but then, other heirs of Moola Ram were also required to be heard. It was also suggested that so far the legality and validity of the Will was concerned, the Hon'ble Supreme Court in its order dated 12.07.1999 has held that the Will was not a fabricated one and, therefore, the order was required to be passed afresh in the matter keeping in view all the facts. It was contended on behalf of the non- applicants including Laxman (petitioner of CWP No. 126/2004) 5 in the said revision petition that the decision as made in the criminal proceedings was not binding on the revenue courts. The learned Member of the Board observed that after passing of the order by the Additional Divisional Commissioner, the Hon'ble Supreme Court has passed the final order in relation to the question of validity of the Will and in the overall facts and circumstances of the case, it would be proper that the matter be remanded to the Tehsildar, Jodhpur in the light of the order passed by the Collector on 17.09.1996 that while according proper recognition to the disputed Will with reference to the decision of the Hon'ble Supreme Court and after examining the orders as passed by the revenue courts and other courts in relation to this matter and after hearing the daughters of Moola Ram, appropriate orders be passed afresh. The contesting parties have questioned the aforesaid order dated 18.06.2003 in these writ petitions. While the petitioners in CWP No. 2420/2004 submit that in the criminal case, the question was adjudicated upon by the criminal court and the petitioners were acquitted of all the charges levelled against them and, therefore, validity of the Will was no more a question open. According to the said petitioners, the mutation was rightly made in their favour in the year 1983 and the subsequent proceedings against them remain infirm and illegal and once the Will is found to have been made in their favour, 6 mutation No. 159 as effected in the year 1983 deserves to be upheld. Per contra, it is contended in CWP No. 126/2004 by the petitioner Laxman that the observations as made by the Board of Revenue that the Hon'ble Supreme court has pronounced on the validity of the Will were not correct inasmuch as the Special Leave Petition filed by the State in the said criminal matter was dismissed on the ground of delay and there was no decision of the Hon'ble Supreme court on the merits of the case and, therefore, the learned Member of the Board was not right in giving the directions to the Tehsildar to accept the Will of Moola Ram and to pass order of mutation accordingly. It is submitted that the decision in the criminal case whereby the accused persons, Sri Kishan and Deep Chand, were acquitted was not relevant to decide on the question if the deceased Moola Ram had executed a Will of his property or not ? It is submitted that the order as passed by the Additional Divisional Commissioner on 04.07.1997 was perfectly valid, correct and reasoned order not requiring any interference. Having given a thoughtful consideration to the entire matter, this Court is clearly of opinion that both the writ petitions remain totally bereft of substance and deserve to be dismissed. The facts that the petitioners, Sri Kishan and Deep Chand, were prosecuted for the offences under Sections 120- 7 B, 419, 420, 466, 176, 468, 471 and 474 IPC, were acquitted by the criminal court, and such acquittal has attained finality are not in dispute. During the course of submissions, learned counsel for the parties was posed the question if the disputed Will had otherwise been put to challenge in any competent civil court to which the learned counsel for the parties answered in the negative. Learned counsel Mr. Jitendra Chopra for the petitioner Laxman in CWP No. 126/2004, however, pointed out that a suit for partition is pending between the parties in the Court of Additional District Judge No.3, Jodhpur as filed by the son of the petitioner Laxman. Be that as it may, this Court finds that in the given fact situation, the Collector, Jodhpur though had chosen to remand the matter by his order dated 17.09.1996 only with reference to the fact of existence of the daughters of the deceased Moola Ram but then, the fact regarding decision of the criminal case was brought to the notice of the learned Member of the Board. In the overall facts and circumstances, the learned Member of the Board has merely observed that the disputed Will be given proper recognition with reference to the order passed by the Hon'ble Supreme Court and appropriate order be passed after also taking note of the other decisions passed by the revenue and other courts and after hearing the daughters of the deceased Moola Ram. 8 The learned Member of the Board has, in the given fact situation, rightly passed the impugned order while otherwise comprehensively keeping the entire matter open for consideration of the Tehsildar concerned. The suggestions as made by the petitioners Sri Kishan and Deep Chand in CWP No. 2420/2004 that mutation as made in their favour alone ought to have been recognised without further inquiry cannot be accepted; and, similarly, the suggestion as made by the petitioner Laxman of CWP No. 126/2004 that the learned Member of the Board ought not to have made any observation, cannot be accepted either. The learned Member of the Board has rightly dealt with the matter and has rightly remanded the same to the Tehsildar, Jodhpur for decision afresh with reference to all the questions involved in the matter after taking note of the relevant decisions and giving them relevant effect. No case of any jurisdictional error is made out so as to call for interference by this Court. The writ petitions fail and are, therefore, are dismissed. In the circumstances of the case, the parties are left to bear their own costs. (DINESH MAHESHWARI), J. Mohan/