IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER S.B. Civil Writ Petition No.4428/2000 Ikbal & Ors. vs. Board of Revenue, Ajmer & Ors. Date of Order : : 15th April, 2008 HON’BLE MR.JUSTICE MOHAMMAD RAFIQ Ms. Ashish Joshi for the petitioner. Mr. Sanjay Srivastava, Dy. Govt. Counsel for the State. REPORTABLE This writ petition has been filed against the judgment of the Board of Revenue dated 23.5.2000 and 5.11.1998 and that of the Collector, Tonk dated 21.11.1996. The Collector, Tonk by his order dated 21.11.1996 held that Mangi Lal S/o Sultan Khan, B/c Luhar, R/c Lawa, Tehsil Malpura died without leaving any heir and therefore the disputed land measuring 26 bighas and 2 biswas situated in revenue Village Lawa should be recorded as escheat under the provisions of Rajasthan Escheats Regulation Act, 1956 (for short-`the Act’). 1 Factual matrix of the case is that the Tehsildar Malpura on 20.9.1973 forwarded a report to the Collector under Section 4 of the Act to the effect that Mangi Lal has died without leaving any heir and that the petitioners are in illegal possession of his land. The Collector, however, remanded the matter to the Tehsildar again for holding a full-fledged enquiry. Tehsildar submitted his fresh report on 20.7.1987, but this time stating that petitioners Jumma and Gafoor are the sons of brother of Mangi Lal, therefore, the proceedings under the Act be dropped. The Collector, Tonk, however, did not accept his report and issued a proclamation under Rule 6(b) of the Act on 28.6.1988 inviting objections from general public. Petitioners submitted their claim before the Collector on 17.10.1988 and asserted that deceased Mangi Lal did not die heirless and that they are sons of the brother of the deceased and therefore, his legal heirs. It was submitted that Mangi Lal’s grandfather Khaju had two sons, namely, 2 Sultan and Kalu. While Sultan had two sons namely Lalu and Mangu @ Mangi Lal, Kalu also had two sons, Jamal and Khaju. Both Lalu and Mangu @ Mangi Lal died issue less and the petitioner Gafoor who is son of Jamal and petitioner Jumma who is son of Khaju are thus nephew of Mangi Lal and are therefore, his legal heirs. The District Collector by his order dated 21.11.1996 dismissed the claim of the petitioners. The appeal filed against the said judgment by the petitioners before the Board of Revenue was also dismissed by the Board vide judgment dated 5.11.1998. Ms. Ashish Joshi, the learned counsel for the petitioner has argued that the orders passed by the Board of Revenue as well as the Collector are contrary to the law and the facts. There was no reason for the District Collector not to accept the case of the petitioner that they are legal heirs of late Mangi Lal who died issueless. It was argued that as per requirement of Section 6(5) of the Act, 3 the Collector ought to have obtained full information from public records and made a thorough enquiry before declaring the property as escheat because property of a citizen cannot be so lightly usurped by the State by recourse to the aforesaid Act. It was argued that the land in dispute was mutated in the name of petitioners Gafoor and Jumma in equal proportion by the competent authority by order dated 15.2.1976. Learned counsel relied on the judgment of Supreme Court in State of Bihar vs. Radha Kishna Singh & Ors. reported in (1983) 3 SCC 118 and State of Rajasthan & Ors. vs. Board of Revenue, S.B. Civil Writ Petition No.3554/98 decided by this Court on 25.7.2007. Shri Sanjay Srivastava, learned Deputy Govt. Counsel opposed the writ petition and argued that the Board of Revenue as well as the Collector have correctly decided the issue and there is no case for interference by this Court. It was argued that petitioner Gafoor in 4 fact had claimed the land of deceased Mangi Lal on the strength of the will according to which, entire property was bequeathed by deceased Mangi Lal to him. He however could not prove the genuineness of this will before the Tribunal. He produced only photostat of the will, which was not even registered. On the other hand, petitioner Jumma had also claimed the land by virtue of his relationship with deceased Mangi Lal and asserted that he made him as owner of the land even during his lifetime. Both of them disputed entitlement of each other. It was argued that the land was wrongly mutated in the name of the petitioners on the strength of a will, existence of which could not be proved. It was argued that none of them have substantiated their claim before the learned District Collector, therefore, the District Collector rightly declared the property as escheat confiscating the same to the State. 5 I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and perused the material on record. Consideration of the matter shows that the District Collector in his order dated 21.11.1996 has merely proceeded to examine the issue from the point of view that the petitioners could not prove the will in their favour and on that basis the mutation entered in their favour was bad in law. The District Collector on that basis did not accept objections of the petitioners and declared the property as escheat. Section 4 of the Act of 1956 provides that upon receipt of information as to the existence for such property to which the said Act applies, the Tehsildar shall ascertain, whether or not, there is any person entitled to inherit such property, prepare an inventory thereof showing the prescribed particulars, take over possession of it in the prescribed manner and make a report to the Collector. In the present case, the 6 Tehsildar in his report dated 20.7.1987 found that the petitioners are the legal heirs of the deceased Mangi Lal. The Tehsildar in doing so recorded the statement of the residents of the village and also accepted the pedigree disclosed by the petitioners. On verification of such pedigree from such villagers, it was found correct. The District Collector, however, appears to have completely taken a wrong approach by examining the will produced by one of the petitioners; namely Gaffor who claimed the entire land to the exclusion of his brother Jumma whereas Jumma was claiming the entire land for himself. Even if there is inter se dispute between two brothers, the fact remains that whether their failure to prove the will and the sole right to inherit the property to the exclusion of the other would substitute the requirement of proof that the deceased Mangi Lal died without leaving any heir. The District Collector, it appears, has proceeded entirely from the aspect of the will and on that basis mutation entered 7 in favour of the petitioner, but has not made any satisfactory enquiry as to the claim of the petitioners that they are the sons of the brother of the deceased Mangi Lal. This Court in State of Rajasthan & Ors. vs. Board of Revenue & Ors., supra, while upholding the judgment of the Board of Revenue held that the Board in the appeal preferred before it was entitled to examine whether the Collector has conducted the enquiry as required of him by Section 6 of the Act in the correct manner. This Court held that the Collector recorded the evidence contrary to the weight of the evidence on record. In State of Bihar vs. Radha Kishan, supra, the Supreme Court held that even if the plaintiff-respondents were not able to succeed in showing that they were not the nearest reversioners of the late Maharaja, it does not follow as a logical corollary that their failure would lead to irresistible inference that there is no other hier who could at any time come forward to claim the property. In the present case, the claim of the 8 petitioners was not founded solely on the basis of will, but also on their relationship with the deceased Mangi Lal. The Tehsildar in his report had provided some credence to this claim but the District Collector has not conducted the enquiry on that aspect of the matter in a satisfactory manner as was required of him by Section 6 of the Act. In that view of the matter, the orders passed by the Board of Revenue and that of the Collector are not sustainable in law. The impugned orders dated 21.11.1996, 5.11.1998 and 23.5.2000 are therefore set aside and the matter is remanded back to the District Collector Tonk for holding a fresh enquiry and decide the dispute afresh enabling the petitioners to adduce evidence in support of their claim. The writ petition is allowed accordingly. (Mohammad Rafiq),J. RS/- 9