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2012 DIGILAW 253 (RAJ)

Hilltop Marbles v. Nisar Ahmed

2012-02-01

GOPAL KRISHAN VYAS

body2012
Hon'ble VYAS, J.—This writ petition is listed today in the Court upon application filed under Article 226(3), Constitution of India for vacating the interim order passed by this Court on 26.9.2011, whereby, the proceedings in Civil Misc. (Succession) Case No.14/2010 - Nisar Ahmed and Others vs. Mining Engineer, Makrana, pending in the Court of Addl. District Judge, Parbatsar under Section 372 of the Indian Succession Act, was stayed. 2. With the consent of the parties, however, the matter is finally heard. 3. In this writ petition filed under Article 226/227 of the Constitution of India, the petitioner has prayed for quashing order dated 15.9.2011 (Annex.7) passed by Addl. District Judge, Parbatsar (District Nagaur) upon objections raised by the petitioner firm. 4. Learned counsel for the petitioner submits that the petitioner-applicant is holding a quarry licence for quarry No.164/A in Chosira Gunawati Range, Makrana. The said licence is valid till 30.12.2014. A civil suit bearing No.31/2009 (old No.17/2008) filed before the Addl. District Judge, Parbatsar (District Nagaur) for seeking permanent injunction and declaring bapi rights over the mine No. 164/1 measuring 24 x 42 sq. ft. Said suit was decreed vide judgment dated 3.11.2009 (Annex.3). Thereafter, an application under Section 372 of the Indian Succession Act, 1925 was filed by the respondents to seek succession certificate for the bapi rights declared by the trial Court vide judgment and decree dated 3.11.2009. 5. The petitioner firm filed an application under Order 1 Rule 10, C.P.C. in the aforesaid proceedings for seeking succession certificate filed by the respondents; but, the trial Court rejected the said application vide order dated 20.11.2010, against which, the petitioner firm preferred S.B. Civil Writ Petition No. 1120/2011 before this Court. That writ petition was also dismissed and order passed by the trial Court was upheld vide judgment dated 18.7.2011. 6. Learned counsel for the petitioner submits that after rejection of the application filed under Order 1 Rule 10, C.P.C. the petitioner filed an objection in pursuance of the notice issued to general public and pointed out that the respondents are trying to usurp its mine No. 164/A by misleading the trial Court in the garb of getting succession over the entire mine area without any jurisdiction over the quarry No.164/A which is now included by the respondents for getting the succession of bapi rights which is absolutely not sustainable and tenable in the eye of law. Further, it is submitted that respondents can get the succession right over the mine for which their predecessors obtained decree by the trial Court. 7. The objections raised by the petitioner firm were rejected only on the ground that since the application of the petitioner has already been rejected by the trial Court for impleading as party respondent and that order has been affirmed by the High Court, therefore, the objector has no right to raise any objection in the proceedings filed under Section 372 of the Indian Succession Act. Learned counsel for the petitioner submits that raising objection is an independent right of the petitioner, therefore, the reason for rejecting the petitioner's objection on the ground that earlier its application under Order 1 Rule 10, C.P.C. for impleadment was rejected is totally erroneous. Learned trial Court ought to have decided the objections raised by the petitioner in which it is prayed that they are having right to use quarry No.164/A for which they are having licence and, upon that, no succession certificate can be issued, therefore, the reasons given by the trial Court for rejection of the petitioner's application are totally untenable and the petitioner firm is entitled to be heard upon the objections in accordance with provisions contained in Section 372, read with Section 373 of the Indian Succession Act. It is contended that the trial Court has failed to appreciate the intrinsic legal aspects of the matter, therefore, the finding given by the trial Court for rejection deserves to be declared illegal and accordingly the order impugned may be quashed. 8. It is contended that the trial Court has failed to appreciate the intrinsic legal aspects of the matter, therefore, the finding given by the trial Court for rejection deserves to be declared illegal and accordingly the order impugned may be quashed. 8. Per contra, learned counsel for the respondents vehemently argued that the score of deciding application filed under Section 372, Indian Succession Act is restricted to the succession only and t title or other aspects are required to be adjudicated in the garb of objections raised by the petitioner firm in view of the fact that the application filed under Order 1 Rule 10, C.P.C. in the proceedings initiated by the respondents to get succession certificate is rejected and that order has been affirmed by the High Court while giving the finding that there is no right created in favour of the petitioner, therefore, the trial Court has not committed any wrong while rejecting the objections filed by he petitioner on the ground that the petitioner's application for impleadment has already been rejected by the Court and that order is upheld by the High Court. 9. Learned counsel for the respondents further submitted that the objections and reasons for filing application under Order 1 Rule 10, C.P.C. are of the similar nature, therefore, once the order has been passed upon the application filed under Order 1 Rule 10, C.P.C. by the trial Court and that order is upheld up to the High Court, then, there was no option left with the trial Court except to reject the objection raised by the petitioner with regard to deciding its right. 10. After hearing learned counsel for the parties, I have perused entire record of the case. 11. As per facts, a decree was passed by the Addl. District Judge, Parbatsar in suit filed by the respondents on 3.11.2009. For execution of the said judgment and decree the respondents filed an application for declaring them legal successor of the decree-holders and following prayer was made in the succession certificate : ^^vr% Jheku~ th ds le{k izkFkhZx.k dh vksj ls mÙkjkf/kdkjh izek.k i= izLrqr dj fuosnu gS fd [kku la[;k 164@1 pkSlhjk xq.kkorh jsat edjkuk izkFkhZx.k ds i{k esa mÙkjkf/kdkj izek.k i= tkjh Qjek;k tkosaA** 12. In the above application, an application under Order 1 Rule 10, C.P.C. was filed by the petitioner firm on the ground that the firm is having licence of quarry No.164/A but, after providing opportunity of hearing, the trial Court rejected the said application and held that petitioner firm is not necessary or proper party and, against the said order passed by the trial Court on 20.11.2010, the petitioner firm preferred writ petition before this Court, being S.B. Civil Writ Petition No. 1120/2011, and co-ordinate Bench dismissed the said writ petition vide judgment dated 18.7.2011. Para 8 and 9 of the judgment are as follows : "8. I have considered the rival submissions and perused the material on record. 9. In disputably the proceedings u/Sec. 372 of the Act of 1925 is a summary proceedings and the question of the title over the property in respect of which the succession certificate is claimed cannot be determined in such proceedings. The petitioner is claiming the succession certificate on the strength of decree passed by the Court of competent jurisdiction declaring it to be owner of the Quarry No.164/1 as Bapidar and thus entitled for issuance of the licence in its name or in the name of its registered partnership firm. It is to be noticed that while passing the order impugned, it has been specifically observed by the Court that the respondent-applicants are entitled to claim the succession certificate only in respect of the mining area in respect whereof the decree has been passed by the Court of competent jurisdiction. Suffice is to say that by issuance of succession certificate, the rights of the petitioner are not likely to be adversely affected. It is pertinent to note that in the suit for declaration filed, the respondents have taken the stand that Quarry No.164/1 regarding which the declaratory decree has been obtained by the respondents, as a matter of fact is Quarry No.164/A and there exists no quarry at the site numbered as Quarry No.164/1. Thus, it appears that the petitioner is questioning the existence of Quarry No. 164/1 itself in respect whereof a decree has been passed in favour of the respondents-applicants by the Court of competent jurisdiction. Thus, it appears that the petitioner is questioning the existence of Quarry No. 164/1 itself in respect whereof a decree has been passed in favour of the respondents-applicants by the Court of competent jurisdiction. Obviously, such dispute involving adjudication the civil rights of the parties cannot be adjudicated upon by the Court in proceedings under Section 372 of the Act of 1925 and the appropriate remedy in this regard has already been resorted to by the petitioner. Undoubtedly, the enquiry contemplated in proceedings u/Sec. 372 of the Act of 1925 in accordance with the procedure laid down under Section 373 is summary enquiry in respect of the right to succession certificate, it even does not decides he question as to the right to estate of the deceased. Thus, in considered opinion of this Court, the petitioner herein has no right whatsoever to inter meddle in the proceedings initiated for issuance of the succession certificate and its presence is not necessary to enable the Court to effectually and completely adjudicate the question as to entitlement of he respondents-applicants to succession certificate and its presence is not necessary to enable the court to effectually and completely adjudicate the question as to entitlement of the respondents-applicants to succession certificate." 13. Upon perusal of the above adjudication made in the writ petition filed by the petitioners, it is abundantly clear that co-ordinate Bench held that the petitioner is neither necessary nor proper party to the proceedings of succession certificate filed by the respondents pending before the Court below, therefore, the order passed by the trial Court does not suffer from any jurisdictional error. 14. Here, in this case, the petitioner firm wants to get impleadment in the garb of raising voice to decide its objection on the same line the petitioner firm has tried to enter into the controversy indirectly. Therefore, in my opinion, once it has been held by the trial Court that respondents are claiming succession certificate for quarry No.164/1, then, obviously the petitioner firm who is claiming right for quarry No.164/A cannot be allowed to raise any objection with regard to the claim of the respondents for declaring them successor for mine No.164/1. In this view of the matter, no case is made out to interfere in the order passed by the trial Court because the order is justified. 15 . Hence, this writ petition is dismissed.