- (1.) This writ petition is directed against order dated 20.9.07 passed by the Board of Revenue, Rajasthan, dismissing an appeal preferred by the petitioner under Section 76 of Rajasthan Land Revenue Act, 1956 ( for short "the Act"), against the order dated 23.5.06 of Additional Divisional Commissioner, Bikaner setting aside order dated 15.10.05 of Tehsildar(Revenue), Khajuwala and directing to enter mutation of the disputed land in the name of the respondent no.4 herein, on the strength of Will dated 15.6.85 executed by the khatedar tenant of the land in his favour.
(2.) The relevant facts in nutshell are that the land ad measuring 19 bighas comprising murabba no.120/77 and 120/28 in chak 2 KGT was khatedari land of late Shri Jetha Ram, who died issueless on 5.1.88. However, a Will was executed by late Shri Jetha Ram in favour of the petitioner on 29.12.83 in respect of inter alia the disputed land, which was later registered with the Sub Registrar, Bikaner on 25.5.88. On the basis of the Will, a mutation entry was opened by the Tehsildar (Revenue), Khajuwala in the name of the petitioner on 7.9.88. Aggrieved thereby, the respondent no.4 preferred an appeal under Section 75 of the Act before the Sub Divisional Officer (SDO), Khajuwala, Bikaner. After due consideration of the rival submissions, the SDO arrived at the finding that the Will dated 18.6.85 executed by late Shri Jetha Ram in favour of the respondent no.4 being last Will executed by him, unless and until the same is declared to be illegal by the court of competent jurisdiction, the same shall remain operative. Accordingly, vide order dated 7.3.03, the disputed land was directed to be mutated in the name of the respondent no.4. Aggrieved by the said order, the petitioner herein preferred an appeal before the Additional Divisional Commissioner, Bikaner Division, Bikaner. The appeal was partly allowed by the Additional Divisional Commissioner observing that while directing mutation of the disputed land in favour of the respondent no.4, the SDO has not made any inquiry regarding the genuineness of adoption deed and Will executed by late Shri Jetha Ram in favour of respondent no.4. Accordingly, the matter was remanded to Tehsildar, Khajuwala for decision afresh after giving an opportunity to the parties to lead evidence and due inquiry about the Will and adoption deed executed by late Shri Jetha Ram in favour of the respondent no.4. Pursuant to the directions issued by the Additional Divisional Commissioner, the matter was taken up for fresh consideration by the Tehsildar (Revenue), Khajuwala. The parties led their evidence and after due consideration of the evidence on record, Tehsildar (Revenue) arrived at the finding that Will executed in favour of the petitioner herein is duly registered with the Sub Registrar, Bikaner and since the respondent no.4 has not availed any appropriate remedy questioning the legality of the Will, the Will executed in favour of the petitioner herein, cannot be considered to be false and deserves to be accepted as last Will. The court observed that in respect of the Will executed in favour of the respondent no.4, an FIR was lodged wherein, though the police has filed negative Final Report, nonetheless, an attempt was made to show that the Will executed in his favour is forged. That apart, Tehsildar (Revenue), proceeded to observe that there was no justification for questioning the mutation entry after expiry of the period of limitation. The authority opined that the Will dated 18.6.85 executed in favour of the respondent no.4 is the last Will but in absence of the proof, the same cannot be accepted in evidence. Accordingly, vide order dated 15.10.05, Tehsildar (Revenue) while holding that the Will executed in favour of the petitioner herein is the last Will duly proved, ordered to enter the mutation of the disputed land in his favour.
(3.) Aggrieved by order dated 15.10.05, the respondent no.4 preferred an appeal before the Additional Divisional Commissioner, Bikaner Division, Bikaner, under Section 75 of the Act. After due consideration of the rival submissions, the Additional Divisional Commissioner observed that pursuant to the remand order, Tehsildar (Revenue), was required to inquire about the existence of the documents and could not have entered into inquiry regarding the genuineness of the documents. The Additional Divisional Commissioner opined that the adoption deed or the Will are not required to be registered and therefore, the same were not open to be discarded on this count. The Additional Divisional Commissioner observed that registration of the document does not dispense with need of proving execution and attestation thereof and therefore, the Will executed in favour of the petitioner herein, which was not proved by the attesting witness, could not have been held to be proved merely because it was duly registered. It was further opined that the Will is neither required to be registered nor it is necessary in law to obtain the probate in respect thereof and therefore, there was no reason not to accept the Will executed in favour of respondent no.4, which stands proved at least by one witness. Accordingly, on the basis of the Will dated 18.6.05 executed in favour of respondent no.4, which was not claimed to be forged by the petitioner herein and no proceedings were taken for questioning the legality thereof, the Additional Divisional Commissioner, vide order dated 23.5.06, while setting aside the order dated 15.10.05, passed by Tehsildar (Revenue), Khajuwala issued directions to open the mutation of the disputed land in the name of the respondent no.4.;