MADHUCHLIANDA DAS v. STATE OF ORISSA — 1998 DIGILAW 149 (ORI)

R. K. PATRA, J. ( 1 ) BY this application under Articles 226 and 227 of the Constitution, the petitioner-Madhuchhanda Das challenges the validity of the order dated 21. 7. 1987 of the Additional District Magistrate, Bhubaneswar in Lease Revision Case No, 410 of 1986 (Annexure-7) setting aside the settlement of land measuring Ac. 1. 00 with one Golak majhi as well as the order dated 7. 12. 1994 passed by the Additional Tahasildar, bhubaneswar (Annexure-6) rejecting the prayer of the petitioner for mutation of the land in her favour. ( 2 ) AS averred in the writ application, the tahasildar, Bhubaneswar by order dated 15. 7. 1974 settled land measuring Ac. 1. 00 in plot No. 502 (renumbered as 502/1204) in khata No. 359 (renumbered as 255/64) located in Mouza Ogalapada with Golak Majhi (vide W. L. Case No. 2198 of 1973 ). The leasehold property was duly recorded in the R. O. R. in the name of the said lessee (Annexure-3 ). During the year 1982-83, the lessee-Golak majhi died and his widow-Mini Bewa and his minor children succeeded to the property. As the widow and her children were in financial constraint, they moved the Revenue officer-cum-Tahasildar under Section 22 of the Orissa land Reforms Act seeking permission to sell ac. 0. 250 decimals out of the lease-hold land of Ac. 1. 00 in favour of the petitioner. Their application was registered as Misc. Case No, 377 of 1986. The Revenue Officer after making due enquiry by order dated 10. 11. 1986 (Annexure-4) granted permission to the widow to sell the land. On the basis of the permission, Mini Bewa sold the land (Ac. 0. 250) in favour of the petitioner for Rs, 5,000/- by regigstered sale-deed dated 26. 12. 1986 (Annexure-5), The petitioner took delivery of possession of the land. With a view to obtain loan for construction of residential house, she applied to the Tahasildar for mutation of the property in her favour vide Mutation Case No. 8356 of 1994. The Tahasildar, however, by order dated 7. 12. 1986 (Annexure-5), The petitioner took delivery of possession of the land. With a view to obtain loan for construction of residential house, she applied to the Tahasildar for mutation of the property in her favour vide Mutation Case No. 8356 of 1994. The Tahasildar, however, by order dated 7. 12 1994 (Annexure-6) rejected the application for mutation on the ground that the disputed land is now under khata No. 359 as per the order of the Additional District Magistrate, the allegation of the petitioner is that she could know about the order of the Additional district Magistrate only in January, 1995 after her application for mutation was rejected by the additional Tahsildar. According to the petitioner, the order of the Additional District magistrate is illegal and without jurisdiction in as much as there was no notice to the petitioner and the initiation of the proceeding itself by him (Additional District Magistrate) against a dead person was void ( 3 ) IN the counter-affidavit filed on behalf of the Additional District Magistrate (opp party no. 2) it has been stated that Mini Bewa, the widow of the, original lessee appeared on 27. 2. 1986 and filted a petition for time which was allowed. Thereafter she (did not take any steps in the proceedings and ultimately by the impugned order dated 21 7 1987 the Additional District Magistrate set aside the order of settlement dated 15. 7 19-74 of the Tahasildar made in favour of Golak Majhi It has been further pleaded that the widow ofthe original lessee did not disclose before the Additional district Magistrate that she had sold away a portion of the lease-bold property in favour of the petitioner and as such question of issuing any notice to her (petitioner) did not, arise ( 4 ) SHRI Ray, learned counsel for the petitioner raised the following points (I) The impugned order of the Additional District Magistrate at annexure-7 is void in as much as it was initiated and passed against a dead person. (II) No notice was issued, far less an opportunity of being heard was given to the petitioner before the impugned order was passed (III) The impugned order cancelling the lease is illegal inasmuch as it was based on the alleged violation of rule 3 of 1974 rules which were not in force at the time of grant of lease, the said rule having been brought into force with effect from 11-12-1974. ( 5 ) POINT No. (1)':-Shri Ray, learned counsel for the petitioner relying on the Judgment of this Court in Cuttack Municipality v. Shyamsundar Behera contended that the entire proceeding culminating in the final order is void ab initio as admittedly it was initiated against a dead person. Learned counsel appearing for the State submitted that since the widow of the deceased original lessee appeared before the additional District Magistrate, the final order cannot be treated as a nullity. From the records it appears that the notice issued to the original lessee Golak Majhi was received by his father on 21. 2. 1986. Mini bewa (widow of Golak Majhi) appeared before the Additional District Magistrate on 27. 2. 1986 and filed a petition praying for time to file objection. The Additional District Magistrate allowed the petition by granting time till 18. 3. 1986 on which day Mini Bewa filed further petition praying for time to file objection. On consideration of the prayer, the Additional district Magistrate granted time to her till 30. 4. 1986. Thereafter, she remained absent and ultimately the impugned order was passed on 31. 7. 1987 against the deceased lessee. ( 6 ) IT is not in dispute that the suo motu 'revision case was initiated against the lessee golak Majhi who was already dead. What is the effect of appearance of the widow of the deceased lessee in the proceeding? in N. Jayaram Reddi v. The Revenue divisional Officer, Kurnool, a question fell for consideration as to whether a decree against a dead person is a nullity for all purposes. Justice Singhal in his separate judgment held (vide paragraph-6) that basically a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representatives when he was never brought on the record to defend the case. Justice Singhal in his separate judgment held (vide paragraph-6) that basically a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representatives when he was never brought on the record to defend the case. While law treats such a decree as a nullity qua the legal representative of the deceased defendant, there is nothing to prevent him from deciding that he will not treat the decree as a nullity but will abide by it as it stands, or as it may be modified thereafter on appeal. If a legal representative adopts that alternative or course of action, it cannot possibly be said that his option to be governed by the decree is against the law or any concept of public policy or purpose, or the public morality. It is thus a matter entirely at the discretion of the legal representative of a deceased defendant against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become a nullity at the appropriate time. In paragraph 10, it was further observed that a point of defence which has been wilfully or deliberately abandoned by a party in a civil case, at a crucial stage when it was most relevant or material, cannot be allowed to be taken up later, at the sweet will of the party which had abandoned the point, or as a last resort, or as an afterthought. ( 7 ) NOW corning to the facts of the case, we have already found in the preceding paragraphs that the widow of the deceased lessee voluntarily appeared in the case. This indicated that she instead of treating the proceeding as a nullity took it as it stood. In other words, she abandoned the plea that the proceeding having been initiated against a dead person was 'void ab initio. On the basis of the ratio of the supreme Court in Jayaram Raddi (supra), we are. therefore, in the circumstances, inclined to hold that the proceeding cannot be treated as a nullity merely because it was initiated against a dead person. Now let us turn to the case of Shyasundar behera (supra) relied on by Shrl Ray. On the basis of the ratio of the supreme Court in Jayaram Raddi (supra), we are. therefore, in the circumstances, inclined to hold that the proceeding cannot be treated as a nullity merely because it was initiated against a dead person. Now let us turn to the case of Shyasundar behera (supra) relied on by Shrl Ray. In that case a learned Single Judge of this Court held that where a suit is filed against a dead person, a Court has no jurisdiction to grant an application under Order 1, Rule. 10 or Order 28 Rules 4 and 9 or do any other act authorised by the C. P. C. as the suit filed against a dead person is a nullity. The learned Judge observed that no substitution can be permitted in a case where there was a sole defendant. but where there are more defendants man one and one of them is dead when the suit was filed, the legal representatives of the deceased defendant can be brought on record subject to any question of limitation that may be raised by the legal representatives of the deceased defendant. On careful consideration, we find that the facts of Shyamsudar Behera (supra) are distinguishable. In that case prior to the institution of the suit, the sole defendant had died. During the pendency of the suit. the plaintiff applied to substitute the legal representative of the deceased defendant as parties, The application was rejected by the trial judge which was challenged by filing a civil revision in this Court. While affirming the order of the trial Judge in rejecting the application for substitution, this Court observed that the suit filed against a dead person is a nullity and no substitution can be allowed in place of the original defendant who was dead on the date of institution of the suit. It was thus a case where the plaintiff wanted to bring the legal representatives of the deceased on record by filing an application for substitution in a suit filed against a dead person. The suit being a nullity from its inception, substitution of the legal representatives of the deceased would also amount to a nullity. It was not a case mere the legal representatives of the deceased defendant voluntarily appeared for contesting the suit as it happened in the suo motu proceeding pending before the Additional District Magistrate. The suit being a nullity from its inception, substitution of the legal representatives of the deceased would also amount to a nullity. It was not a case mere the legal representatives of the deceased defendant voluntarily appeared for contesting the suit as it happened in the suo motu proceeding pending before the Additional District Magistrate. For the aforesaid reasons, the ratio of shyamsundar Behera (supra) cannot be made applicable to the case at hand. ( 8 ) POINT No. (ii) :-It is an undisputed fact that the widow and her children applied under Section 28 of the Orissa Land Reforms act, 1960 to the Revenue Offlcer-cum-Tahasildar seeking permission to sell a portion (Ac. 0. 250 decimals) out of the lease-hold land of Ac. 1. 00 in favour of the petitioner The revenue Officer by order dated 10. 11. 1986 granted permission to them to sell the land. Thereafter they sold the land to the petitioner by registered sale deed dated 26. 12. 1986 for rs. 5,000/ -. By this time the impugned proceedings had already been initiated and, as such, the transaction is hit by lis pendens. The petitioner, however, having stepped into the shoes of her transferor can be regarded as a person aggrieved and is entitled to maintain this application questioning the. validity of the impugned ofder. ( 9 ) POINT No. (iii):-The. lease in question was granted on 15. 7. 1974. At that time, the orissa Government Land Settlement Rules, 1963 were in force which came to be repealed by the Orissa Government Land Settlement rules, 1974 brought into force with effect from 11. 12. 1974. Shri Ray is right in his submission that the lease could not have been declared invalid for non-compliance of Rule 3 of the 1974 Rules as these Rules were not in force at the time of grant of lease and, as such, compliance of non-existent Rules by the Tahsildar did not arise. ( 10 ) IN the result, the order dated 21. 7. 1987 passed by the Additional District magistrate at Annexure-7 and the consequential order dated 7. 12. 1994 passed by the Additional Tahasildar at Annexure-6 are hereby quashed The Additional District Magistrate will dispose of the matter afresh after giving an opportunity of hearing to the petitioner. The petitioner is directed to appear before the Additional District Magistrate on 15th of July, 1998 to receive further direction from him. 12. 1994 passed by the Additional Tahasildar at Annexure-6 are hereby quashed The Additional District Magistrate will dispose of the matter afresh after giving an opportunity of hearing to the petitioner. The petitioner is directed to appear before the Additional District Magistrate on 15th of July, 1998 to receive further direction from him. ( 11 ) THE writ application is allowed. There would be no order is to costs. Pradipta Ray, J.- ( 12 ) I agree with the views expressed by hon'ble Justice R. K. Patra, but I like to add an additional reason for not accepting the contention that the proceeding having been initiated against a dead person was void. ( 13 ) THE settled proposition appears to be that any suit or proceeding against a dead person is a nullity and non-existent in the eye of law, but when the legal heirs of deceased defendant are brought on record or they themselves appear, the suit or proceeding is to be taken to have been filed on the date when such step is taken. If the suit or proceedings becomes time-barred on the date of taking step for bringing the heirs on record or appearance of the legal heirs, then such suit or proceeding cannot be proceeded with unless the delay is condoned where it is permissible. Reference may be made to the decisions reported in R. Rajyalakshmamm v. R. Kanniah. Smt prempiari v. Dukhi; and K. Ismail v. Pavu rama. Thus when the widow herself appeared before the Collector after receipt of notice issued in the name of her deceased-husband and obtained adjournment, the proceeding was to be treated as if initiated against the widow on the date of her appearance. There is no period of limitation prescribed for a proceeding for cancellation of lease and as such there was no question of proceeding becoming time barred. I am unable to agree with the view expressed in Pratap Chand Mehta v. Smt. Krishna Devi Mehta that the heirs of the deceased could not be brought on record and suit could not be treated to have been filed on the date of taking steps for bringing the heirs on record, There is also a factual difference between the decisions of Delhi High Court and the present case inasmuch as in this case the widow herself appeared, prayed for adjournment and the same was granted by the collector. ( 14 ) ANY other view would lead to undesirable consequences and provide opportunity to unscrupulous heirs to appear in the proceeding, to allow it to continue, to ensure that any fresh suit or proceeding on the same cause of action gets barred by limitation and then to urge that the proceeding was void ( 15 ) IN my view, although initially the proceeding was void, it became a valid proceeding because of appearance of widow and it was to be treated as initiated on the date of appearance of the widow. Petition allowed. Matter remanded.