ORDER
V.G. Sabhahit, J.
1. This writ petition under Articles 226 and 227 of the Constitution of India is filed being aggrieved by the order passed by the Deputy Commissioner, Belgaum dated 12.12.2001 upholding the order passed by the Assistant Commissioner dated 29.8.2001.
2. It is the case of the petitioner that the land comprised in Sy. No. 768/3 measuring 12 acres 30 guntas situated at Raibag was the self-acquired property of Smt. Radhabai w/o. Babaji Dhabade. He has two sons Appasah-the petitioner and Balakrishna. Balakrishna died leaving behind his wife respondent No. 4 and children respondents 5 to 7 and 12 to 14. It is the case of the petitioner that Radhabai had executed a will in favour of the petitioner bequeathing the property in his favour and accordingly application was made for entering the name of the petitioner on the basis of the will. The same was objected by the contesting respondents. The Tahsildar allowed the application, the name of the petitioner be entered on the basis of the will. Being aggrieved by the same, appeal was preferred before the Deputy Commissioner which was allowed by holding that no entry should be made on the basis of the win and it is ordered that name of all the legal representatives of Radhabed shall be entered in the revenue records. Being aggrieved by the same, revision was filed before the Deputy Commissioner, Belgaum, and the same was dismissed by order dated 29.8.2001 upholding the order passed by the Assistant Commissioner.
3. I have heard the learned Counsel appearing for the parties.
4. Having regard to the contentions urged, the point that arises for determination is:
Whether the impugned order passed calls for interference in this writ petition
5. It is clear from the perusal of the material on record that property was owned by Smt. Radhabai and after her death the petitioner claims to have succeeded to the properly of Radhabai on the basis of the with executed by her and other legal representatives have disputed the execution of the will. It is now well settled in view of the Full Bench decision of this Court in C.N. Nagendra Singh v. The Special Deputy Commissioner, Bangalore District and Ors. wherein it is held that when the revenue court is prevented from recording the statements of the parties and the depositions, the question of establishing the genuineness of the will would not arise. Hence, the revenue courts have no jurisdiction to go into the genuineness of the will or questions of title and it is further observed as follows:
Para-9: Considering Rule 43 when a person claims title to a property under a will for the purpose of getting a mutation entry in the revenue records before any such entry is made the revenue court should prima facie be satisfied that the said documents is genuine and valid even in the absence of any dispute as the said will comes in the way of natural succession. By virtue of Section 128 when the owner of the land dies, the title to the said property passed on to the legal heir by succession or survivorship or inheritance and the property vests with such a legal heir without being any document vests with such a legal heir without there being any document and purely based on the relationship of the deceased with the legal heir. A will can come into operation only after the death of the executant. If a will is set up to deprive a legal heir who had acquired title to the property either by succession* survivorship or inheritance, the person claiming under the will has to show better title. If the will is disputed, strict proof of the will as required under Sections 63 and 64 of the Succession Act is to be provided. When the revenue court is prevented from recording the statement of the parties and the depositions, the question of establishing the genuineness of the will for any purpose whatsoever before the revenue court in an enquiry would not arise. Under these circumstances, the revenue courts have no jurisdiction to go into the genuineness or validity of the win or to the question of title in respect of the land in dispute. The decision of the revenue court has to be necessarily based on the undisputed facts. The revenue court cannot go into the disputed questions of relationship, status of the parties, title to the property or genuinness or otherwise of a document or challenge to the documents on the ground of fraud, undue influence, misrepresentation or mistake. As such, the petitioner cannot take advantage of Rule 43 in the case of a will.
6. It is submitted by the learned Counsel appearing for the petitioner that the suit filed in O.S.No. 343/93 seeking permanent injunction against the petitioner has been dismissed and petitioner is in possession of the property. Mere change of entry would not itself affect the possession of the property as the entry in the revenue record is made for enabling the parties to make payment of land revenue.
7. In view of the above said Pull Bench decision of this Court it is clear that the order passed by the Deputy Commissioner confirming the order passed by the Assistant Commissioner directing that the names of all the legal representatives shall be entered and petitioner has to seek declaration from the competent court regarding the will is justified and does not suffer from any error or illegality and accordingly, there is no ground to interfere with the order and I pass the following order:
The writ petition is dismissed by confirming the order passed by the Deputy Commissioner dated 12.12.2001 confirming the order passed by the Assistant Commissioner dated 29.8,2001 ordering that names of all the legal representatives shall be entered in the revenue records. However, it is open to the petitioner to work out his remedy in accordance with law in respect of the will alleged to have been executed by Radhabai in favour of the petitioner, If any order is passed by the competent court regarding the validity of the said will, the revenue authority shall make necessary entries in the revenue records, in accordance with law.