t^ ^n^te 9ewh T^T^ ^er ^pnwr RTri^pre. fiRrm^Js^. f^ Nt^ (227) ^pr ^5"/09 _'LllR:ict5ich<ii - .3p5ffV^ ^^l<c||<{| 7TT3T - ./^S^ •^SS ^,/^y .^ '"W ^ ^^rn^r ^r ^r. ^n^-sp^p-l^u^ 7TH ^m^cTT, ^^^- ^^^ i^T-^t^f^--:ETFqy^^^ ^^ (i) ^ ^ ^r^ ^T^- ^^- ^ ^^ ^^ f^TRft W{ ^T^f, ^Nt^ ^^ft, f^TT-^t^T-^F^, (^.^T.) TJ^ 3^ ^r^FT-?IB ^RT, ^^ TO^ffeT, Iy1^l r-^1i^ 4ti <-:cTFqT(^ .TT.) •""(2) ^af^TH^ ^TRR ^ te M9FT ^f?pf?T 227 ^K^Iq Hf^CTTT HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petrtion 1227) No. 2035 of2009 PETITIONER : Shyamlal •^. VERSU8 RESPONDENTS : Nammi @ Navneet Kumar <fe another fWRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTIQM_OFJNDIA) fSB: Hon'ble Mr. N.K.AgarwaI, J.) Present : Shri C!K Rao, Advocate for the petitioner. Shri MA LatifRehman, Advocate for respondent No. 1. Shri SRJ Jaiswal, Panel La^er for the State. ORAL ORDER (Passedon 28.06.2011) 1. The instant petition, filed under Article 227 of Constitution of India calls in question the legality and propriety oforder dated 03.10.2008, passed by the Board of Revenue in Revision Case No. RN/06/R-A- 6/60/07. 2. Indisputably, the petitioner and respondent No. 1 are sons of late Phunulal Kalar. The property in dispute belongs to Phunulal. Phunulal died on 18.07.2005. According to petitioner, his father Phunulal executed a registered will deed in his favouron 12.07.2005, on the basis of which he moved mutation application before the Naib Tehsildar, Sakti, without adding respondent No.l as a party respondent i.e. his brother. The Naib Tehsildar allowed said application and directed for mutation ofhis name in place ofdeceased father/Phunnulal. r~ ~ .5^^^ ^ ..^' /f' 1 ^, 'm3t^ 'j i '%. 3, The appeal preferred by the respondent before the SDO as well as Second -Appeal preferred before the Additional Collector were dismissed. Thereaflter, respondent preferred a revision before the Board of Revenue. The Board of Revenue allowed respondent's revision holding Will deed as suspicious and not genuine. 4. Shri Rao, leamed counsel appearing for the petitioner would submit if the respondent/brother was necessary party in the mutation proceedings then the Board ofRevenue should have remitted back the matter for deciding the mutation application afresh after directing the petitioner to add respondent/brother as a party respondent. Instead of this, the Board of Revenue has ordered that the Will is suspicious and not genuine, which is not in the domain of Board of Revenue, and therefore, order impugned appears to be bad on the face ofrecord and deserves to be set aside. 5. On the other hand, Shri Rehman, leamed counsel appearing for respondent No. 1 would submit, the mutation application was filed without adding him as party respondent, therefore, the Board of Revenue has rightly allowed his revision and no illegality has been committed by the Board ofRevenue warranting interference ofthis court under Article 227 ofthe Constitution oflndia. 6. I have heard the counsel appearing for the parties and penised the order impugned. 7. Indisputably the petitioner and respondent No. 1 are real brothers and in the absence. of any Will both of them would have inherited all 'v. \^^ ^^. i •^^^ •*%^^ (^) "": properties of their father. If petitioner is claiming title over the land on the basis ofWill then he ought to have added respondent/brother as party in the mutation application before the Naib Tehsildar. Having not done so, the orders of Tehsildar, SDO and Addl. Collector suffers from jurisdictional illegality leading to manifest injustice to the respondenVbrother, inasmuch as, fhe Naib Tehsildar has passed the order without affording an opportimity ofhearing to the respondent. In the same way, in the absence of evidence and material on record, the Board of Revenue has also went wrong in holding the Will as suspicious and not genuine. 8. In view ofabove, all the orders passed by the revenue authorities are set aside and the matter is remitted back to the Naib Tehsildar, Sakti for deciding the mutation application afresh after adding respondent/brother as a party in the application. Newly added respondent/brother shall also be granted opportimity to lead his oral and documentary evidence. 9. The parties are directed to appear before the Naib Tehsildar, Sakti, on 17.08.2011. 10. The petition is accordingly allowed. No order as to costs. Sd/- N.K. Agarwal Judge Sahu