Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 1008 (PAT)

Ramasray Rai v. State of Bihar

2013-08-16

BIRENDRA PRASAD VERMA

body2013
ORDER In the present proceeding it was noticed by an order dated 07.11.2012 that during the pendency of the writ petition, respondent no. 5, 6 and 8 have died leaving behind their heirs and legal representatives. On the request, made by the learned counsel for the petitioner, the matter was adjourned for four weeks. 2. Now, on 18.12.2012 Interlocutory Application No. 8259 of 2012 was filed on behalf of the petitioner stating therein that the respondent No.5 Rameshwar Rai died on 11.08.2004, respondent no. 6 Laxmi Rai died on 02.08.1993 and respondent no. 8 Kedar Nath Chaudhary died on 12.02.2010 leaving behind them their heirs and legal representatives, detailed in paragraph-2 of the aforesaid interlocutory application. 3. In response to notice issued by this Court by the order dated 26.02.2013, proposed heir of deceased respondent no. 8 has entered appearance through his lawyer and has filed a counter- affidavit on 17.05.2013 in I.A. No. 8259 of 2012 contesting the prayer for substitution made on behalf of the petitioner. It has been specifically stated in paragraph-1 and 4 of the counter-affidavit that death certificate produced by the petitioner is a forged document, and respondent No.8 died on 23.02.2004 and not on 22.02.2010 as claimed by the petitioner. Death certificate issued by the Panchayat Sewak showing the date of death of respondent No.8 as 23.02.2004 has been annexed as Annexure-1 to the said counter affidavit. 4. The present proceeding under Articles 226 and 227 of the Constitution of India arises out of a consolidation proceeding under the provisions of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (in short “the Act”). By the impugned order dated 24.09.1991/ 26.09.1991 (Annexure-5) passed in Consolidation Revision No. 1361 of 1986 by the respondent Joint Director of Consolidation, claim of the petitioner with respect to the lands under dispute has been rejected and that of contesting respondent no. 5 to 8 has been allowed. 5. From the facts pleaded in the aforesaid Interlocutory application filed on 18th December, 2012, it is apparent that the petitioner did not take any steps for substituting the heirs and legal representatives of deceased respondent no. 5 Rameshwar Rai for more than eight years and that of the deceased respondent no. 6 Laxmi Rai for about 19 years. Similarly he has not taken any steps for substituting the heirs and legal representatives of the deceased respondent no. 5 Rameshwar Rai for more than eight years and that of the deceased respondent no. 6 Laxmi Rai for about 19 years. Similarly he has not taken any steps for substituting the heirs and legal representatives of the deceased respondent no. 8 for more than 8 years, as according to the counter affidavit filed on behalf of the son of deceased respondent no. 8, his date of death is 23.02.2004. Therefore, the writ petition as against deceased respondent no. 5 Rameshwar Rai and deceased respondent no. 6 Laxmi Rai as also deceased respondent no. 8- Kedar Nath Choudhary has abated in view of the law laid down by the Hon’ble Apex Court in the case of Puran Singh vs. State of Punjab [ (1996) 2 SCC 205 ]. Identical issues were considered by me in an unreported judgment dated 16.07.2013 passed in CWJC No. 2864 of 1984 (Sukh Bilas Roy and Ors. vs. The State of Bihar & Ors.), wherein after considering the large number of judgments of the Hon’ble Apex Court as also a Division Bench judgment of this Court, I have concluded that if steps for substitution are not taken within a reasonable period of time of three years, then the heirs and legal representative of the deceased respondent cannot be compelled to contest their claim, which have become final in their favour. It was further held by me that there cannot be two contradictory and inconsistent orders, one against dead person and other against surviving person in one and common lis. 6. For the reasons recorded above, and in view of the law laid down by the Hon’ble Apex Court in Puran Singh vs. State of Punjab (supra) as also in view of the ratio laid down by this Court in the case of Sukh Bilas Roy & Ors. vs. The State of Bihar & Ors. (supra), the prayer for substitution made on behalf of the petitioner with respect to deceased respondent No. 5, 6 and 8 after such a long delay of 9 years, 19 years and 8 years, respectively cannot be allowed at this stage. 7. Consequently, I.A. No. 8259 of 2012 is rejected, as a result thereof, whole writ petition has become incompetent and is, accordingly, dismissed.