- (1.) THIS is a writ application by the petitioners Ramdhan and Mst. Singari, husband and wife, against an order of the Board of Revenue Rajasthan, dated the 21st Feb. , 1958, which arises under the circumstances presently to be mentioned.
(2.) ONE Lachman son of Maoaram Jat of Mundwa was admitted a Bapidar of six fields bearing Khasra Nos. 201, 202, 1156, 1157, 1734 and 1849 and measuring in all 64 Bighas in village Mundwa. He died some time in 1949 and was survived by his two daughters Msts. Singari and Tikuri who were both married to the petitioner Ramdhan. Respondent No. 1 Bhura is the brother of the deceased Lachhman. The case of the petitioner is that Lachhman had executed his last will dated the 12th October, 1943, (which was registered on the same day) with respect to his entire movable and immovable properties, including the six fields mentioned above, in favour of his two daughters aforesaid. Consequently, after Lachhman's death, the petitioners and Mst. Tikuri came into possession of the fields in question and are still in possession thereof. Dispute soon arose, however, between the petitioners and Mst. Tikuri on the one side and Bhura on the other. In a proceeding under sec. 145 Cr. P. C. relating to these fields, the Sub-Divisional Magistrate, Nagaur, maintained the possession of the petitioners over these fields by his order dated the 9th August, 1957. In the meantime, respondent Bhura made an application for mutation before the Tehsildar, Nagaur. The Teh-sildar found that Mst. Singari and Mst. Tikuri were in actual possession of the fields, and, therefore, he rejected Bhura's prayer and ordered mutation to be recorded in favour of Msts. Singari and Tikuri, daughters of Lachhman. Bhura went in appeal to the Collector, Nagaur. The Collector reversed the Tehsildar's order holding that the daughters were not entitled to any right of inheritance under sec. 14 of the Marwar Tenancy Act, 1949 (Act No. XXXIX of 1949), and consequently ordered that mutation be effected in favour of Bhura respondent. Against this order, there was an appeal to the Additional Commissioner, Jodhpur, who held that as the daughters were in possession of the fields in question, they were entitled to mutation, and, therefore, he set aside the order of the Collector and gave a direction that if the parties wished to have the question of title adjudicated upon, they should have recourse to a regular suit in a competent court of law. Bhura preferred a revision against the above order to the Board of Revenue. The Board, by their order, which is impugned before us, reversed the decision of the Additional Commissioner and ordered mutation in favour of the respondent Bhura. The petitioners have filed the present writ application against the order of the Board. The principal contention raised by learned counsel for the petitioners against the order of the Board is that the approach of the Board to the entire question before them was fundamentally incorrect, that the question of mutation rightly fell to be decided on the basis of possession and possession alone, and, therefore, the learned Members of the Board had fallen into a manifest and serious error of law in deciding the proceeding before them on the basis of title. It is unfortunate that the respondents are not represented before us. But all the same, we have taken every care to examine the correct legal position and are satisfied that the contentions of the learned counsel for the petitioners are not without force. By way of clearing the ground, we may mention at once that the deceased Lachh-man was admittedly a Bapidar of the fields in question, and, further, that after his death, his two daughters Msts. Singari and Tikuri have throughout remained in possession of them. It may also be pointed out in this connection that the story of their possession is fully supported by the order which was made by the Magistrate in the proceedings under sec. 145 Cr. P. C. It is against this background that the question of mutation arose before the revenue authorities below. Curiously enough, the success of each party was alternated with failure before the next higher authority with the result that eventually the petitioners failed to have the mutation recorded in their favour and the respondent Bhura succeeded. Now, in coming to the conclusion to which the learned Members of the Board did, the question which appears to have greatly exercised their mind was as to whether the deceased Lachhman being a Bapidar had any authority in law to transfer or bequeath his rights over the fields in question by a will, and they eventually came to the conclusion that sec. 211 of the Marwar Land Revenue Act, 1949 (Act No. XL of 1949), which provides that a Bapidar may transfer his rights permanently, correctly interpreted, excludes an alienation by a will. In coming to this conclusion, the learned Members seem to have placed reliance on certain decisions of the Allahabad High Court and the Oudh Chief Court being Kallu Vs. Ganga Ram (1) and Surendra Vikram Singh Vs. Munia Kunwar (2 ). We are not at all sure whether the learned Members, were right in relying on these cases, which, after all, were based on the state of law which existed in the territories concerned. But quite apart from that, it seems to us that the attention of the learned Members does not seem to have been invited to the provisions of Secs. 97 and 98 of the Marwar Land Revenue Act, 1949, which had a bearing on the question which came up for consideration before them and which fully governed it. The material portions of these questions are as follows: - "97 (1) The Government may declare by notification in the Official Gazette or in such other manner as may be prescribed that a record of rights is maintained in respect of any area specified in the notification. (2) In any area in regard to which a notification under sub-sec. (1) has been made, every person obtaining possession by succession or transfer of any interest in any land or the profits thereof which is required to be recorded in the register prescribed in clause (1) of 75 shall report such succession to the Tehsildar of the tehsil in which the land is situated. "98. (1) The Tehsildar on receiving such report, or upon the facts coming otherwise to his knowledge, shall make such inquiry as appears necessary and in undisputed cases if the succession or transfer appears to have taken place shall record the same in the annual register. If the succession or transfer is disputed, the Tehsildar shall refer the case to the Deputy Commissioner who shall decide the dispute in accordance with the provisions of sec. 79". Sections 76 to 78 of the Marwar Land Revenue Act lay down the procedure for deciding disputes, broadly speaking, other than those regarding mutation. Then comes sec. 79 which reads as follows - "79. (1) All other disputes regarding entries in the record of rights shall be decided on the basis of possession. (2) If in the course of inquiry into a dispute under this section, the Settlement Officer is unable to satisfy himself as to which party is in possession, he shall ascertain by summary inquiry who is the person best entitled and shall put such person in possession. (3) No order as to possession passed under this section shall debar any person from establishing his right in any Civil or Revenue Court having jurisdiction". Now, from the combined operation of secs. 98 and 79, it clearly appears to us that a disputed mutation must be; decided by the revenue authorities concerned on the basis of possession, and further, it is only in that type of cases where the competent authority is unable to satisfy himself as to which party is in possession that he has jurisdiction by summary inquiry to ascertain who is the person best entitled to it and then to put such person into possession. It may also be pointed out that any inquiry which has to be made in this connection is only a summary one and that the party aggrieved by the order as to possession in such a case is left free to have his rights established in the competent civil or revenue courts. We should also like to point out in this connection that this is the correct procedure to apply, on whatever footing whether of succession or transfer, the mutation is prayed for. These then being the principles which correctly apply for the decision of a case like the present, let us see whether the learned Members of the Revenue Board acted in accordance with them. We regret to have to say that it appears to us that they did not. As already stated, the petitioners were admittedly in possession of the fields in question. It was never the respondent Bhura's case that he was ever in possession of them after the death of the last-holder Lachhman. That being so, we have no hesitation in remarking that the question of mutation should and could have been properly decided only by the test of possession for, quite clearly, this was not a case where each party claimed to be in possession in which case under sec. 79 (2), an inquiry into prima facie title might have been necessary. We are definitely of the opinion that such inquiry was entirely ruled out in the circumstances of the present case because the petitioners alone were in possession and not the respondent Bhura. This brings us to the following passage in the judgment of the Revenue Board which is being assailed before us: "the extent to which possession or the absence of possession should be regarded as proof for mutation purposes depends mainly as to whether the case is one of transfer or of inheritance. There are certain fundamental differences between the two classes of cases. In succession cases, it is obligatory upon the Revenue Officers to make a mutation of some sort and hence there is no such thing as a rejected mutation in such cases. A particular claim may be rejected but mutation must be sanctioned in favour of some heir or heirs. In transfer cases, the issue is not only what the new entry shall be but whether a new entry shall be made at all or not. Possession as evidence of title has a different value in two classes of cases of inheritance and the cases of transfer. The posses sion of the also their who is on the spot and makes most of the efforts to defeat the claim of his rivals by actually taking possession of the land cannot count for very much as evidence of title. " With all respect, we find it difficult to maintain as correct the distinction which the learned Members have drawn in the passage quoted above between cases of mutation on transfer as contra-distinguished from those on inheritance. And in this connection, we cannot do better than to invite their attention to the latter part of sub-section (1) of sec. 98 which clearly lays down that irrespective of the question whether the succession or transfer is disputed, the question of mutation must be decided in accordance with the provisions of sec. 79, that is, on the basis of possession and possession only save in those cases where the authority concerned is unable to satisfy himself as to which party is in possession, and it is in such cases alone that the question of title by a summary inquiry can be taken into consideration in the decision of the question of mutation but not otherwise. The present case, quite clearly, is not a case of the last-mentioned character; and that being so, we are definitely of the opinion that the learned Members of the Board had no jurisdiction to enter into the question of title and hold that the deceased Lachhman had no right to make a will on the interpretation of sec. 211 of the Marwar Land Revenue Act, which they felt persuaded to accept or that the daughters of the deceased had no place as heirs in the scheme laid down in sec. 14 of the Marwar Tenancy Act. For the reasons mentioned above, we are constrained to come to the conclusion that the order of the Board cannot be maintained in law being patently erroneous and that we have jurisdiction to sec it aside. We order accordingly. The result would be that the order of the Additional Commissioner, Jodhpur, dated the 31st July, 1957, shall hold the field. We need scarcely add that it will be open to the respondent Bhura to raise the question of title if he so chooses in a competent court of law and obtain adjudication on it. As the respondents have not put in appearance in this Court, we would make no order as to costs. . ;