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2014 DIGILAW 1207 (ALL)

Salma v. D. D. C.

2014-04-15

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Shashi Kant Upadhyay, for the petitioners and Sri D.D. Gupta, for the contesting respondents. 2. The writ petition has been filed against the orders of Assistant Settlement Officer Consolidation dated 15.07.2003, rejecting the substitution application filed by the petitioners for substituting them as the heirs of Smt. Sharifan, in the appeal and restoration application filed by Smt. Sharifan under Section 11 of U.P. Consolidation of Holdings Act,1953 (hereinafter referred to as "the Act") and Deputy Director of Consolidation dated 31.10.2013, dismissing their revision. 3. The dispute relates to the property of Ramzan son of Ilahideen, resident of village Jamua no. 2, tahsil Salempur, district Deoria. After death of Ramzan, Thag son of Ilahideen filed an application (registered as Case No. 996) under Section 12 of the Act, for mutation of his name as an heir of Ilahideen, on the basis of a will 02.11.1976 in his favour. The case was contested by Smt. Sharifan, claiming to be widow of Ramzan and denying the will. The Consolidation Officer, by order dated 30.10.1980, found the will dated 02.11.1976 executed by Ramzan was proved and directed for mutating the name of Thag over the land of Ramzan. Smt. Sharifan filed an appeal (registered as Appeal No. 2458/259) under Section 11 of the Act. In the meantime the appeal was dismissed in default and Smt. Sharifan filed an application for restoration on 13.03.2001, which was pending. 4. During pendency of the restoration application, Smt. Sharifan died. The petitioners filed an application dated 22.04.2002 for substituting them as the heirs of Smt. Sharifan, being daughter and son of Ramzan. The substitution application was contested by Thag (now represented by respondent-3), who filed an objection dated 24.06.2002 on the ground that Salma and Lukman were not the daughter and son of Ramzan and Smt. Sharifan and are not entitled to be substituted as her heirs. The petitioners, in support of their claim, filed copy of the extract of Pariwar Register, issued on 15.02.2003, showing that in the family of Ramzan, their names were mentioned as daughter and son of Ramzan. The respondent filed copy of the extract of Pariwar Register, issued on 17.08.1985, showing that the names of the petitioners were not mentioned in the family of Ramzan. The respondent filed copy of the extract of Pariwar Register, issued on 17.08.1985, showing that the names of the petitioners were not mentioned in the family of Ramzan. He also filed an extract of khatauni of 1390-1395 F showing that in the khatauni parentage of Lukman (petitioner-2) was mentioned as son of Hatim. Assistant Settlement Officer Consolidation after hearing the parties held that in paragraph-6 of the memorandum of the appeal, Smt. Sharifan had mentioned that Ramzan had left behind him no male or female issue and Smt. Sharifan, being his widow was his only heir. The extract of Pariwar Register filed by the respondent, issued on 17.08.1985, shows that the names of the petitioners were not mentioned in the family of Ramzan. In the khatauni of 1390-1395 F, parentage of Lukman (petitioner-2) was mentioned as son of Hatim. As such the petitioners were not the daughter and son of Ramzan and Smt. Sharifan and rejected their substitution application and held that Thag was the heir of Smt. Sharifan. 5. The petitioners filed a revision (registered as Revision No. 153/176/188) from the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 31.10.2013 held that in case Lukman was son of Ramzan, then he would have a preferential heir of Ramzan and must have filed an application for mutating his name as an heir of Ramzan but no such application was filed by him although Ramzan died prior to 1980. Finding of fact relying upon the admission of Smt. Sharifan, in memorandum of the appeal and extract of Pariwar Register and khatauni filed by the respondent, does not suffer from any illegality. On these findings the revision was dismissed. Hence this writ petition has been filed. 6. The counsel for the petitioners submitted that as issue relating to inheritance of Smt. Sharifan arose before the appellate court as such in view of Proviso to Rule 5 of Order 22 C.P.C., the appellate court ought to have referred the issue to Consolidation Officer for recording evidence and it is only after the evidence being recorded and returned to the appellate court, he would have decided the issue. The procedure provided under the law has not been followed. The procedure provided under the law has not been followed. In the Pariwar Register of the family of Ramzan, the names of the petitioners have been mentioned as the daughter and son of Ramzan but it has been illegally ignored. The appellate court has illegally substituted Thag as an heir of Smt. Sharifan although Thag was the opposite party in the appeal as such there will no adjudication of the appeal on merit. The revision filed by the petitioners has also been illegally dismissed. The counsel for the petitioners relied upon the judgment of Supreme Court in CIDCO Vs. Vasudhaa Gorakhnath Mandevlekar, 2010 All. C.J. 316 (SC), in which it has been held that entries made in birth and death register carries presumption of its correctness, D.N. Jeevaraju D Sudhakar, 2012 (115) RD 342 (SC), in which it has been held that an admission made in pleading may not be treated in the same manner as an admission in a document. In this case it has been held that admission made in the pleading can be directly relied upon while an admission made in a document is required to be proved according to Section 18 to 27 of the Evidence Act, 1872.Suresh Kumar Bansal v. Krishna Bansal, (2010) 2 SCC 162 , and Smt. Shanti Devi Vs. DDC and others, 2012 (117) RD 149 , in which it has been held that heirship decided in substitution application is not final and does not operate as res-judicata. 7. I have considered the arguments of the counsel for the parties and examined the record. Order 22 Rule 5 C.P.C. requires the Court to determine the issue as to whether any person is or is not the legal representative of the deceased party. Thus the primary duty has been cast upon the Court to determine the issue before whom it arose. The Proviso is an exception to the Rule 5, which gives a discretion to the appellate court to refer the issue to trial court for recording evidence and after the evidence being recorded to return it along with its findings to the appellate court. In this case the appellate court itself has determined the issue after taking evidence of the parties, in stead of referring to Consolidation Officer for recording the evidence. A Division Bench of Calcutta High Court in Durgapada Jana Vs. In this case the appellate court itself has determined the issue after taking evidence of the parties, in stead of referring to Consolidation Officer for recording the evidence. A Division Bench of Calcutta High Court in Durgapada Jana Vs. Wemai Charan Jana, AIR 1986 Cal 23 (DB), held that appellate court is competent to decide the issue relating to substitution under Order 22 Rule 5 C.P.C. I respectfully agree with the Division Bench judgment aforesaid. 8. The appellate court relied upon the extract of Pariwar Register filed by the respondent, issued on 17.08.1985, which shows that the names of the petitioners were not mentioned in the family of Ramzan and the khatauni of 1390-1395 F, in which parentage of Lukman (petitioner-2) was mentioned as son of Hatim. Extract of Pariwar Register and Electoral Roll filed by the petitioners are of subsequent year. The appellate authority also noticed the admission of Smt. Sharifan in the memorandum of the appeal, in which she had stated that Ramzan left behind him no male and female issue. The revsional court further noticed the conduct of the petitioners that in case Lukman was son of Ramzan, then he would have a preferential heir of Ramzan and must have filed an application for mutating his name as an heir of Ramzan but no such application was filed by him although Ramzan died prior to 1980. The reasons given by respondent-1 in disbelieving the evidence of the petitioners are the valid reasons. Findings of fact recorded by appellate authority does not suffer from any illegality. 9. The counsel for the petitioners submitted that Smt. Sharifan was an illiterate lady and memorandum of the appeal was drafted by her counsel. She put her thumb impression on asking of the counsel as such ground no. 6 cannot be treated as an admission of Smt. Sharifan. Prima facie there is nothing on record to show that the memorandum of appeal was prepared without consultation with Smt. Sharifan. The conduct that after death of Ramzan, Smt. Sharifan contested the objection of Thag and not the petitioners. Had there was any son to Ramzan, he would have a preferential heir. In such circumstance, the argument that counsel drafted the appeal without consultation of Smt. Sharifan cannot be accepted. 10. The conduct that after death of Ramzan, Smt. Sharifan contested the objection of Thag and not the petitioners. Had there was any son to Ramzan, he would have a preferential heir. In such circumstance, the argument that counsel drafted the appeal without consultation of Smt. Sharifan cannot be accepted. 10. The counsel for the petitioners submitted that although khatauni has been filed to show that Lukman was son of Hatim but no evidence has been produced to show that Salma was not daughter of Ramzan. The arguments in this respect is not correct. Appellate court found that in the extract of Pariwar Register issued on 17.8.1985, the name of Salma was not mentioned in the family of Ramzan. Ramzan died prior to 1980 as such son of Ramzan would be preferential heir and the daughter will not be his heir. In any case Supreme Court in Suresh Kumar Bansal v. Krishna Bansal, (2010) 2 SCC 162 , held that it is now well settled that determination of the question as to who is the legal representative of the deceased plaintiff or defendant under Order 22 Rule 5 of the Code of Civil Procedure is only for the purpose of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited. As such the petitioners have an alternative remedy to file a regular application and to prove their case. No interference is required in the writ petition. 11. In view of the aforesaid discussions, orders of consolidation authorities do not suffer from any illegality. The writ petition has no merit and is dismissed.