1. This batch of eight writ applications are being disposed of by this judgment as the parties are the same and the question for decision is almost identical. The matter relates to mutation of the name with respect to certain houses situated in the town of Arrah under the jurisdiction of the Arrah Municipality. The relevant facts are these.

2. One Gopal Ram had a son Sakhichand who, however, pre-deceased him in the year 1914 leaving his widow Nageshra Kuer (respondent No. 1). The case of the petitioner is that on the death of Sakhichand, Gopal Ram adopted one Ram Das as his son who died in the year 1970 and the petitioner Sheo Dulari Devi is his widow. Gopal Ram, according to the petitioner, died in the year 1931 whereas according to respondent no. 1, in the year 1938. On the records of these cases, the petitioner's assertion that Ram Das was adopted by Gopal Ram has not been controverted. In paragraph 1 of the writ application a definite assertion has been made to this effect and in the show cause filed on behalf of respondent no. 1 this fact has not been controverted. We shall, however, deal with this matter in a little more detail hereinafter. It is said that Gopal Ram had executed a will in the year 1920 in favour of respondent No. 1 bequeathing all his properties in favour of respondent No. 1 and, according to the case of this respondent, that included the properties in question. The will in question has been made ‘A’ to the show cause filed in writ application no. 1477 of 1973. Respondent No. 1 has also annexed another document and that is a trust deed of the year 1917 and is annexure A to the show cause filed in writ application no. 1479 of 1973. This trust deed was again executed by Gopal Ram dedicating some properties to some deities. The properties covered by this trust deed are concerning C.W.J.C Nos. 1479 and 1482 of 1973 being present municipal holdings Nos. 383 and 423 respectively (minjumle). We may also mention the municipal number of the other holdings concerning the other writ applications and they are C.W.J.C No. 1477/73, holding No. 461; CWJC No. 1478, holding No. 384; CWJC No. 1480/73 holdings Nos. 336 and 337; C.W.J.C No. 1481 of 1973, holding No. 179, CWJC No. 1483/73, holding No. 368 and CWJC No. 1484/73, holding No. 265. The petitioner's name was mutated with respect to all these holdings in the Arrah Municipality. Although the date of mutation of her name is not disclosed in the petition nor any date is disclosed in the different show cause and affidavits filed by the respondent and the petitioner, it is not disputed that her name was coming on in the municipal records from a long time and it had been asserted in the objection petition that was filed by the petitioner in the mutation proceedings that were initiated by respondent No. 1 in Arrah Municipality to which we shall refer presently, that her name was mutated more than 12 years before and in that way she had perfected her title. The petitioner's case is that the family of Gopal Ram was affluent and owned considerable properties in the town. Further case of the petitioner is that all the properties in question which of course belonged to the family of Gopal Ram were allotted on partition by a compromise decree in partition suit no. 36 of 1956 from the court of 1st Subordinate Judge at Arrah, except holding no. 179 concerning C.W.J.C No. 1481 of 1973 which, according to the petitioner's case was purchased by her out of her own fund and she got her name mutated accordingly, in the municipal records with respect to all the holdings mentioned above. The trouble, however, started on applications of respondent no. 1 which were filed for mutation of her name in the municipal records in the Arrah Municipality. On 15th March, 1973 respondent no. 1 made separate applications for mutation of her name with respect to the above holdings giving rise to different mutation proceedings which also have been decided by a common order dated 29th September, 1973 by the Executive Officer of the Arrah Municipality (respondent no. 2). In her applications a copy of which is - 2 to each of the writ applications respondent no. 1 made out a case that Ram Das who was the adopted son of her father-in-law (Gopal Ram) and was looking after her affairs, got the name of his wife, namely, the petitioner, mutated with dishonest intention. She accordingly, prayed that her name may be mutated in place of the petitioner. In the mutation applications, the ground that was urged by respondent no. 1 was that her father-in-law (Gopal Ram) had executed a registered will in her favour. It has been seen that the will was executed as far back as in the year 1920 and that Gopal Ram also died, even according to her case, in the year 1938. If respondent no. 1, therefore, claimed, as is manifest from the mutation applications on the basis of the will, it was open to her to make the applications soon after Gopal Ram died. But as already said earlier, she waited until the year 1973. It may be stated at this very stage that respondent no. 1 after making her applications for mutation of her own name, made supplementary applications with respect to the two holdings, namely, holdings Nos. 383 and 423 which were subject matter of the trust deed of the year 1917 stating that her name may be mutated not in her own right but as the mutawalli of the deities concerned.

3. In the mutation proceedings the petitioner filed a long objection controverting inter alia that Gopal Ram could execute any will in respect of the joint family properties and, therefore, the will itself was void and that the entire estate of Gopal Ram would devolve upon her husband and who died in a state of jointness, the husband of respondent no. 1 having already pre-deceased leaving no issue. It was asserted that no fraud was committed by her husband and that she was coming on in exclusive possession of the houses in her own rights from a long time. Some statement of course regarding the constitution of the firm and the business which was carried on by the family of Gopal Ram has also been made in the writ petition as well as in the show cause but in our opinion it is not necessary to notice those facts for the purpose of the question arising for our decision.

4. Respondent no. 2, in the impugned order, purported to consider all the complicated questions of title, devolution and inheritance as well as the validity and invalidity of the will, adoption and the like, like a regular civil court and then came to the conclusion that respondent no. 1 was the only competent person whose name should be recorded in respect of the holdings in question, with respect to some in her own rights and with respect of the two others, as mutawalli.

5. Cause has been shown by respondent no. 1 separately in all the writ applications but the stand taken by her is almost identical. Suffice it to state in this regard that she has proceeded to raise the same set of questions on the merits of her case on the basis of the will which since is also probated (during the pendency of the writ applications). and the trust deed and the like., She also disputed the petitioner's assertion that holding No. 179 was acquired out of her own money and that the compromise decree in the partition suit aforesaid was collusive and no right flowed therefrom in favour of the petitioner.

6. The petitioner challenges this order and Mr. Kailash Roy who appeared in support of the applications, raised a short and simple question that in view of the complicated nature of the controversy between the parties, the Executive Officer has wholly misdirected himself in proceeding to determine the complicated and disputed questions of fact and title and that in any event, the petitioner's name having remained mutated for a large number of years, he should not have proceeded to disturb the entry in the purported exercise of the powers under Section 107(1)(a) of the Bihar and Orissa Municipal Act and instead, should have referred respondent no. 1 to get her right and title determined and decided by a competent civil court. Mr. Kailash Roy placed strong reliance on a Bench decision of this court in the case of Ram Prasad Yadav… v. Jagdish Prasad & Others…., (1971 B.L.J.R 781). That was a case under Section 139(1) (a) of the Patna Municipal Corporation Act (Bihar Act 13 of 1952), a provision in pari materia with Section 107(1)(a) of the Bihar and Orissa Municipal Act. In that case also, the Assistant Administrator after a lapse of a long time had entered the name of the respondent purporting to correct the assessment list under the above provision. In that case also the Assistant Administrator proceeded to decide complicated questions of title in the order passed by him. The court set aside the order and made two observations. The first observation is that' the Assistant Administrator also was not quite justified in going into the disputed question of title or possession and then it was observed

“in my opinion, it is manifest that the exercise of the power by the Assistant Administrator in this case after a lapse of such a long time, as has been pointed out above, in the eye of law and on the facts and in the circumstances of this case, was a misuse of power or the power was exercised mala fide in law. If at all there is a power of rectification of the assessment list under clause (a) of sub-section (1) of Section 139, it must be done within a reasonable time: it can never be done after lapse of several years……….”

7. Mr. R.S Chatterji, learned counsel appearing on behalf of respondent no. 1, however, contended that the said authority of this court was not correctly decided and, in any event, it would have no application to the facts of the present case. He contended that in the said case, the facts of the case of respondent concerned were not noticed whereas the facts which have been noticed by the respondent no. 2 the Executive Officer in allowing her applications were so compelling that if such facts were there in that case, also, this court might have been reluctant to interfere with the order of the Assistant Administrator.

8. The second attack of Mr. Chatterji in challenging the applicability of the above decision is that the provisions of the Patna Municipal Corporation Act are different than those of the Bihar and Orissa Municipal Act and that in any event, the provisions contained in Section 108 of the Municipal Act were not noticed. It is difficult to accept any of the contentions of Mr. Chatterji to distinguish or not to follow the Bench decision of this Court. The observations that we have extracted from the decision are, in our opinion, of universal application and have been made as a general proposition not depending on the facts of any particular case; otherwise the entire force of the observation would stand frustrated when the learned Judges observed that the Assistant Administrator was not justified in going into the disputed questions of title and possession. This court, therefore, depricated such protracted enquiry and investigation by municipal authorities in mutation proceedings. We fail to understand as to how the principles would not apply with full force to the facts of the present case. We, accordingly, for the said reasons, do not think it proper to embark upon any investigation and examination of the correctness and otherwise of those disputed questions of facts and to usurp the jurisdiction of civil court and decide those questions which may fall for determination in a regularly constituted suit if any where the parties will be at liberty to give all relevant evidence in support of their case in the court and the court would be in a better and advantageous position to come to a correct finding.

9. The next ground of attack of Mr. Chatterji was that in writ jurisdiction this court should not interfere with the impugned order inasmuch as there was no error apparent on the face of the record and in support of his proposition he placed reliance on some authorities as well. Reference may be made only to one of such decisions in the case of Kaushalya Devi v. Bachittar Singh, (AIR 1960 SC 1168). We fail to appreciate as to how the principle laid down in the said authority has got any application to the present case, as this court, at this stage, is not disposed to examine the correctness or incorrectness of the decision of respondent No. 2, the Executive Officer, on its merit. Rather the order has been assailed by learned counsel appearing for the petitioner on a fundamental question that the Executive Officer has proceeded to usurp the jurisdiction of the civil court and, therefore, he was not justified in proceeding to enquire and decide all those complicated questions of title. The question urged in challenge of the impugned order is manifestly one of jurisdiction and certainly this court can upset the said order in the writ jurisdiction.

10. Mr. Chatterji lastly contended that this court should take notice of the subsequent event, inasmuch as the will has since been probated, to shorten the litigation and take the view that in view of the grant of probate of the will, according to which the properties in question stand bequeathed to respondent no. 1, no interference should be made with the order in question. We are afraid, this argument is equally fallacious. The grant of probate simply means that the will was genuine and nothing beyond that and that never settled the disputed questions of title that may be raised by the party concerned.

11. There is another argument of Mr. Chatterji which has got to be noticed. He wanted us to rely upon a decision rendered in a title suit in which the petitioner was not a party. That suit was instituted by one Vijoy Kumar Chaorasia, the purchaser from Ram Das, the husband of the petitioner, in the year 1968 of one of the holdings namely holding No. 450 which is subject-matter of a separate writ application (CWJC No. 1647 of 1973) which, however, has been separated and adjourned to another date and is pending. In that case a finding has been recorded by the civil court that Ram Das was not the adopted son of Gopal Ram. Learned counsel made strenuous effort that this court should take into consideration the said judgment under Section 13 of the Evidence Act and rely upon the said finding. We do not feel that it will be desirable or proper for us to refer, much less to rely upon the said judgment particularly in view of the fact that in her mutation applications, respondent No. 1 had taken a singular and definite stand that Ram Das was the adopted son of Gopal Ram so much so that in the will that has since been probated and has been filed as Annexure A with her show cause, this fact has also been noted.

12. We do not find any substance In the argument of Mr. Chatterji that the provisions of Section 107(1) (a) of the Bihar and Orissa Municipal Act and Section 139(1) (a) of the Patna Municipal Corporation Act are different. Rather the provisions are identically the same. Section 108 of the Bihar and Orissa Municipal Act referred to by Mr. Chatterji would have no application to the facts of the present case inasmuch as that is a provision to cover cases where title of any holding is transferred devolves on the death of the recorded owner.

13. It is manifest from the facts stated that the basis on which respondent, no. 1 made her applications did not attract the situation and the circumstances contemplated by Section 108. For this reason the authority which was cited by Mr. Chatterji, namely, Chairman and the Municipal Commissioners of the Chakradharpur Municipality v. Bishwanath Jagatramka, (AIR 1975 Pat 158) would have no application at all to the present case. In Ram Prasad Yadav's case, (1971 BLJR 781), (supra) while setting aside the order of the Assistant Administrator this court had further observed that undoubtedly the power under Section 139(1) (a) of the Patna Municipal Corporation Act, if it affects the interest of any person as in that case, it did affect the interest of the petitioner of that case was of a quasi judicial nature.

14. For the reasons discussed above, we feel no difficulty in holding that the order dated 29th September, 1973 passed by the Executive Officer, Arrah Municipality, Arrah on the mutation applications filed by respondent no. 1, a copy of which has been made - 3 is erroneous and is. accordingly, set aside but only to the extent it is involved in the present writ applications. Let an appropriate writ issue accordingly. The applications are allowed but, in the circumstances, there will be no order as to costs.

15. Appeal allowed.