Bijender Singh v. Om Prakash and Others

1. Rule. With the consent ofthe parties, the matter is taken up for final hearing.

2. The facts leading to the filing of the present writ petition are that one Shri Laxman Singh, who was the maternal grandfather of the Petitioner and the RespondentNos.[2] to 4, was the recorded bhumidar of the agricultural land admeasuring 77 bighas 13 biswas, situated in the RevenueEstate of VillageTikri Kalan,Delhi. Shri Laxman Singh died on 31.08.1986 and immediately thereafter on 02.09.1986, the Respondent Nos.[2] to 4 applied to the Tehsildar for mutation of the W.P.fO 1747/2013 Paee 1 of[8] 2013:DHC:7179.•t said land in their names on the basis of an alleged will dated 20^^^ August, 1986, allegedly executed by late Shri Laxman Singh in their favour. The said mutation proceedings filed by the Respondent Nos.[2] to 4 were opposed by the Petitioner by disputing the legalilty, validity and genuineness of the will dated August, 1986 and contending that the same was a forged and fabricated document. In view of the dispute raised by the Petitioner, the concerned Tehsildar referred the matter to the Revenue Assistant. By his order dated 18.06.2003, however, the Revenue Assistant, despite the objection of the Petitioner regarding lack of his jurisdiction to decide the mutation proceedings, proceeded to hold that the alleged will dated 20''' August, 1986 was a genuine document and to direct mutation of the subject land in favour ofthe Respondent Nos.[2] to 4.

3. Aggrieved therefrom, the Petitioner preferred an appeal to the Deputy Commissioner/A.D.M., who, vide order dated 26.07.2004, allowed the appeal filed by the Petitioner and set aside the order passed by the Revenue Assistant holding that once the will on the basis ofwhich mutation was claimed had been disputed under Section 186 ofthe Delhi Land Reforms Act, 1954, such question oftitle to the land was required to be referred to the Civil Court for adjudication. It was accordingly heldthat the prayer of the Respondent Nos.[2] to 4 for mutationon the basis of the allegedwill couldnot be acceptedand the matter was remanded back to the Revenue Assistant for decision after the genuineness andvalidity of the alleged will had been decided in a Civil Court ofcompetent jurisdiction. W.P.(C) 1747/2013 Paee2of[8]

4. Against the aforesaid order dated 26.07.2004 passed by the Deputy Commissioner, the Respondent Nos.[2] to 4 filed an appeal before the Court of the learned Financial Commissioner. The learned Financial Commissioner dismissed the said appeal by his order dated 31.08.2006 concurring with the decision of the Deputy Commissioner. This led to the filing of a civil writ petition by the Respondent Nos.[2] to 4 against the order passed by the learned Financial Commissioner, being W.P.(C) No.18884/2006, titled as "Om Prakash and Others vs. Financial Commissioner and Others". A learned Single Judge of this Court dismissed the said writ petition preferred by the Respondent Nos.[2] to 4 by his order dated 28.11.2011, upholding the concurrent findings of the Deputy Commissioner and the Financial Commissioner. The relevant part of the said order reads as under:- "11. In the instant case, the succession to bhumidari rights oflate Sh. Laxman Singh by the petitioners on the strength of Will (Ex. PWl/1) is seriously disputed andfor this reason, the Tehsildar concerned instead ofrecording the mutation had referred this matter to the concerned Revenue Assistant, who instead ofinvokingSection 186 of the Delhi Land ReformsAct has himselfdecided upon the genuineness and the validity of the Will in question, which is contrary to law. In taking this view, reliance is placed upon the dictum of the decision of a Division Bench ofthis Court in FAG (OS) 406/2007, 'Ram Niwas Vs. Pitamber Singh and Ors.' rendered on 29th February, 2008, which is as under:- 'This clearly implies that, if a question of title is raised in an application for declaration of Bhumidari rights under Item 4 ofSchedule-I ofthe Act, that question will then be referred by the W.P.(C) 1747/2013 Pase3of[8] Revenue Assistant to the Civil Court; but a party wanting to raise such a question oftitle in order to claim Bhumidar right cannot directly approach the Civil Court The Act is a complete Code under which it is clear that any one, wanting a declaration ofhis right as Bhumidari, or aggrieved by a declaration issued without notice to him in favor of another, can approach the Revenue Assistant under Item 4 of the First Schedule and this he is allowed to do without any period of limitation, because he may not be aware ofthefact thata declaration has been issued in respect ofhis holding infavor ofanother

12. In the light of the aforesaid legal position, Ifind that the concurrentfindings of the Deputy Commissioner and the Financial Commissioner, referring the disputed question ofsuccession to the Civil Courtfor adjudication, is legally sound, as it is not within the domain of the Revenue Assistant to return a finding ofa disputed Will being valid or genuine.

13. It needs no reiteration that on the face of it, though the question is of recording of mutation but in fact, unless disputed question of devolution of bhumidari rights is decided by invoking the Delhi LandReforms Act, the recording ofmutation under the Delhi Land Revenue Act cannot bedone. That is tosay, the issue ofrecording of mutation is procedural which is dependent upon the decision on the substantive issue of devolution of the bhumidari rights which has to beasper thegeneral order of succession in terms of Section 50 of the Delhi Land Reforms Act or on the strength of a bequest by a bhumidar, as per Section 48 of the aforesaid enactment This has to be done by invoking Section 186oftheDelhi LandReforms Actand the impugned order rightly directs the concerned Revenue Assistant to do so.

14. Since the impugned order does not sufferfrom any error of law or fact apparent on the face of record. WP.fC) 1747/2013 Page 4 of[8] therefore, this petition is dismissed while leaving the parties to bear their own costs. "

5. Against the said judgment and order dated 28.11.2011, the Respondent Nos.[2] to 4 preferred an intra-court appeal before the Division Bench, being LPA No.81/12, titled as *'0m Prakash and Others V[5]. Govt ofNCT ofDelhi and Others". The said appeal too was dismissed by judgment and order dated 11.12.2012. The Division Bench in the said judgment categorically laid down that by virtue of the provisions of Section 186 of the DLR Act, the Revenue ^ Assistant is not competent to decide the question oftitle to any land which is the subject matter of proceedings before the Revenue Assistant and the Revenue Assistant is required to frame an issue on the question of title and submit the record to the competent Civil Court for decision on that issue. Reference may usefully be made to the following extract from the said judgment:-

W.P.(C) 1747/2013 PaeeSofS thejurisdiction to be exercised and once ifa forum is not competent under one Statute, to read it as competent under another Statute would be travesty of justice. The only logical and sensible interpretation thus, can be that the Revenue Assistant is competent to decide a dispute in a mutationproceeding, relating to possession only and not a dispute even if arising in mutation proceeding, relating to title. Reference at this stage may be made to Suraj Bhan Vs. Financial Commissioner (2007) 6 SCC 186 and Suman Verma Vs. Union ofIndia (2004) 12 SCC 58 reiterating that mutation of name in revenue records does not confer title on person. In fact Suraj Bhan supra was a Delhi C case only and mutation therein, on the basis of Will carried out by the Tehsildar was held to be not conferring title and it was reiterated that asfar as title to the property is concerned, it can only be decided by the competent Civil Court.

17. However, the appellants herein are not claiming mutation under the Revenue Act merely on the basis of being in possession ofthe land (which is also disputed) but are claiming such mutation for the reason of Sh. Lachhman Singh having bequeathed his proprietary rights in the land in their favour under the Will aforesaid. Once mutation is claimed on the basis of having inherited such proprietary rights i.e. on the basis of title, the adjudication ofdisputes with respect thereto shall be governed by the Reforms Act and not by the Revenue Act.

18. Though the Schedule 1 to the Reforms Act does not refer to disputes as to mutation which, as aforesaid, are within the domain of the Revenue Act but refers to dispute as to declaration of bhumidhari rights. Where mutation is claimed on the basis of title and such claim is disputed, it would tantamount to declaration of bhumidhari rights and would be within the domain of the proceedings mentioned in the Schedule 1 to the Reforms Act W.P.(C) 1747/2013 Pase 6 of[8]

19. In Master Mayank Vashishth supra mutation on the basis ofsale was deniedfor the reason ofthe sale being in contravention of Section 33 of the Reforms Act. However, in that case the Tehsildar had allowed the mutation himself without even referring to the Revenue Assistant as required under Section 23 ofthe Revenue Act and which led this Court to set aside the order of the Deputy Commissioner and the Financial Commissionersetting aside the order ofmutation and refer the case to Revenue Assistantfor determination. While doing so, some observations as to the two Statutes were made but we are afraid the same cannot be said to be adjudication ofissue, as has been raised in this appeal.

20. We therefore do notfind any merit in this appeal and dismiss the same. "

6. The Petitioner in the present writ petition submits that in view ofthe aforesaid authoritativepronouncementofthe Division Bench of this Court, the Respondent No.l is under a legal and statutory obligation to frame an issue regarding the legality, validity and genuineness of the alleged will dated 20^ August, 1986, allegedly executed by late Shri Laxman Singh and refer the same to the competent Civil Court for adjudication upon the said issue. However, the Respondent No.l has totally failed to comply with the said statutory obligation as mandated by Section 186 of the DLR Act, despite several requests made to him by the Petitioner and even after the Petitioner filed an application before the Respondent No.l on 26.12.2012 requesting him to frame such an issue and refer the same to the competent Civil Court for its adjudication. Learned counsel for the Petitioner also submits that ever since 26.12.2012, the Respondent W.P.fa 1747/2013 Pase 7 of[8] r No.1 has failed to proceed with the matter and that the application of the Petitioner is not being considered nor the matter is being proceeded with, so much so that not even a date has been fixed in the matter by the concerned Revenue Assistant.