1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.10051/2009 Rampal Vs. Board of Revenue & Ors. Date of order : 1/12/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sudesh Bansal for the petitioner. Shri Syed Zakawat Ali, Deputy Government Counsel for the State. Shri Prahlad Sharma for the respondent. ****** This writ petition has been filed assailing the order passed by the Board of Revenue dated 5.6.09 and that of the Divisional Commissioner dated 18.11.08. The petitioner had originally filed an appeal under Section 75 of the Land Revenue Act, 1956 before the Collector, Jaipur against the mutation attested in favour of respondent no.4 Laxmi Narayan dated 18.7.2007. The District Collector set aside the aforesaid mutation order and directed that Tehsildar, Sanganer should make fresh enquiry. The Divisional Commissioner in appeal filed reversed that order holding that when the writ petitioner was an appellant before the District Collector has filed civil suit as also the revenue suit seeking declaration that he was adopted son of deceased Kanha, the main issue would have to be decided in the civil suit on the basis of evidence laid by the parties and therefore unless the contrary was proved by evidence, the mutation could not have been 2 set aside. The petitioner filed revision petition before the Board of Revenue, which dismissed the same by order dated 5.6.2009 holding that whether or not Lachma whom the petitioner was claiming to be his mother has expired immediately 2-3 days after birth or whether he was son of Lachma is complicated question of fact and these disputes will have to be decided in the suit filed by the petitioner and it was not possible to decide the same in summary proceedings of mutation. It was noted that not only the civil suit was filed by the petitioner, but revenue suit was also been filed. The revision petition was therefore dismissed. Shri Sudesh Bansal, learned counsel for the petitioner submitted that the petitioner was son of sister of deceased Kanha and that respondent no.4 Laxmi Narayan was in close relation. His name could not have been entered in the mutation that was attested behind the back of the petitioner. The Tehsildar had not make any proper enquiry. Even when the civil suit is pending, such mutation could not be allowed to be continued or else the respondent no.4 would alienate the property. Learned counsel for the petitioner also submitted that Tehsildar has now submitted report to District Collector, according to which on 14.12.2009 he has mentioned that petitioner was actual son of sister of Kanha. It is contended that this report has 3 been requisitioned by this Court. Per contra, Shri Prahlad Sharma, learned counsel for the respondent opposed the writ petition and submitted that the Divisional Commissioner as well as Revenue Board has consistently held that the issue of acquisition would have to be decided by the civil court. There are contradictions. On one hand, he claims to be adopted son of Kanha, on the other he claims right in the disputed land on account of being son of his sister, who has in fact died. It is denied that the report has been summoned pursuant to any order passed by this Court. The Tehsildar has not made any enquiry but the report has been obtained with undue influence. The main issue has to be decided in the civil suit/ revenue suit. Having heard the learned counsel for the parties and perused the impugned order, I find that the mutation proceedings are indeed summary proceedings and in those summary proceedings if the Tehsildar attested mutation in favour of respondent no.4, the petitioner in order to contest that mutation was required to prove that he was actually closer in creation to the deceased Kanha, but here the Divisional Commissioner and the Board of Revenue have consistently held that since petitioner himself approached the civil court and revenue court and those complicated dispute about succession would be decided in the 4 suit by the civil court, so long as such findings was not obtained by the petitioner, mutation made in favour of respondent no.4 could not have been set aside by the District Collector. Although, I find that the District Collector while setting aside the mutation also directed for enquiry to be made by Tehsildar, but that necessity stood obviated with the petitioner's having approached the civil court as also the revenue court. Now ultimately these complicated and disputed questions of fact and law will have to be decided by the civil court and a decree passed by that court ... by both the parties on all the issues including the issue of mutation. As regards the apprehension expressed by the petitioner that respondent no.4 might in the meantime alienate the property, the petitioner can suitably apply before the civil court or revenue court and those courts are expected to pass appropriate orders safeguarding interest of the petitioner, therefore, at this stage that prayer may not be entertained in this writ petition. It is again observed that mutation that was attested in favour of respondent no.4 is not final and would be subject to the decree passed in the suit filed by the petitioner and when this issue of succession has been left to be decided by the civil court, setting aside the mutation in part compliance of the order of the district 5 Collector and while not following the other part of the order whereby the fresh enquiry was ordered to be made by Tehsildar, may not be appropriate. I therefore do not find any infirmity in the order passed by the Divisional Commissioner dated 18.11.08 as well as Board of Revenue dated 5.6.09. The writ petition is therefore dismissed, however, with the aforesaid observations. (MOHAMMAD RAFIQ), J. RS/-