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2017 DIGILAW 3027 (ALL)

BANSHI LAL (DECEASED) v. RAM LAL

2017-12-22

SIDDHARTHA VARMA

body2017
JUDGMENT Hon’ble Siddhartha Varma, J.—Heard Sri Anil Bhushan, learned Senior Counsel assisted by Sri Abai Raj Singh, learned counsel for the petitioners and the learned counsel for the respondent, Sri Vishesh Kumar. 2. The predecessors in interest of the respondent Ram Lal had filed a complaint against the patta which was granted in favour of the predecessors in interest of the petitioner, Late Banshi Lal. 3. The application for cancellation of the patta was rejected on 12.12.1996. However, the revision filed against the order dated 12.12.1996 was allowed on 3.3.1998. When a revision was filed by the petitioner against the order dated 3.3.1998, the Board of Revenue on 3.4.1998 allowed the revision and remanded the matter back to the Trial Court. However, on 16.1.1999, the Additional Collector, though had held that the applicant who had applied for the cancellation of the patta of the petitioner himself had no right in the land, cancelled the patta against which Banshi Lal the predecessor in interest of the petitioner filed a revision before the Commissioner being Revision No. 401 of 1999, which was allowed and the matter was again remanded back to the Additional Collector for readjudication. The respondent, Ram Lal filed a revision being Revision No. 140 of 1998-99 against the order dated 15.6.1999. During the pendency of the revision, the predecessor in interest of the respondents, Ram Lal died on 7.8.2001 and a substitution application to bring on record the legal heirs and representatives of Ram Lal was filed in the Revision No. 140 of 1998-99 which was ultimately allowed on 8.4.2003 by the Board of Revenue. This order dated 8.4.2003 had been filed alongwith the counter-affidavit at page-27. Thereafter, the revision as was filed by the respondent Ram Lal was dismissed on 7.5.2003 against which a review was filed by his legal heirs and representatives namely, Raja Ram and Ram Chandra. 4. During the pendency of the review petition on 17.10.2003, the petitioner i.e. the patta holder Banshi Lal died and Raja Ram and Ram Chandra, the legal heirs and representatives of Ram Lal filed a substitution application in the review petition which was allowed and Abhay Raj, the petitioner was substituted. The order substituting the legal heirs and representatives of Banshi Lal has been filed on page-30 of the counter-affidavit. The order substituting the legal heirs and representatives of Banshi Lal has been filed on page-30 of the counter-affidavit. At page-35 of the counter-affidavit, a Vakalatnama as was filed by a legal heir and representative of the deceased-Banshi Lal is to be found. The review petition thereafter, was dismissed on 25.5.2005 and, therefore, the matter stood remanded as per the order dated 15.6.1999 which was affirmed in Revision No. 140 of 1998-99 (filed at page-35 of the rejoinder-affidavit). 5. Thereafter, when the matter was pending before the Additional Commissioner, the legal heirs and representatives of Banshi Ram namely Abay Raj filed an application for abating the complaint which had been filed for cancellation of the patta on 22.8.2006. The complainants Raja Ram and Ram Chandra filed their objections to the abatement application on 4.9.2006. However, the suit was dismissed as abated on 30.7.2007 against which order a review was filed by the complainants (the respondents here) on 10.8.2007. On 16.5.2008 the review application was allowed and the abatement order was set aside. On 30.12.2008 the substitution application which was filed by the respondents in the suit was also allowed and the matter was fixed for hearing. However, upon the setting aside of the order of abatement, the petitioners had filed a revision before the Board of Revenue which was dismissed on 13.2.2009. Aggrieved thereof, the instant writ petition has been filed. The petitioners have in effect stated that when once the suit/case had abated, then the review should not have been allowed as it was not maintainable and have relied on a Full Bench decision in Shivraji and others v. Dy. Director of Consolidation, Allahabad, 1997 RD 562 . 6. Further the petitioners relying on the order dated 16.1.1999 stated that when the Additional Collector by his order dated 16.1.1999 while cancelling the patta had held that the complainant also had no right on the land, the complainant had no right to continue with the complaint/suit against the petitioner. 7. The further submission of the learned counsel for the petitioners was that since no application for substituting the legal heirs and representatives of either the complainant or the patta holder was filed before the Trial Court i.e. the Court of the Additional Collector, the suit should have abated. 8. 7. The further submission of the learned counsel for the petitioners was that since no application for substituting the legal heirs and representatives of either the complainant or the patta holder was filed before the Trial Court i.e. the Court of the Additional Collector, the suit should have abated. 8. In reply the respondent counsel Sri Vishesh Kumar submitted that if the substitution application to bring on record the legal heirs and representatives of the deceased was allowed in the Revisional Court the benefit of it should enure for all stages of litigation through which the case went through subsequently. For this purpose he relied on a decision in Rangubai Kom Sankar Jagtap v. Sunderbai Bhratar Sakharam Jedhe and others, AIR 1965 SC 1794 and specifically relied on paragraph-9 of the judgment which was read out by him and therefore, is being reproduced hereinunder: “Let us now consider the question on principle. A combined reading of Order XX, Rules 3, 4 and 11, of the Code of Civil Procedure shows that the doctrine of abatement applies equally to a suit as well as to an appeal. In the application of the said Rules 3 and 4 to an appeal instead of “plaintiff” and “defendant” “appellant” and “respondent” have to be read in those rules. Prima facie, therefore, if a respondent dies and his legal and his legal representative are not brought on record within the prescribed time, the appeal abates as against the respondent under Rule 4, read with Rule11, of OrderXXII of the Code of Civil Procedure. But there is another principle recognized by the Judicial Committee in the aforesaid decision which softens the rigour of this rule. The said principle is that if the legal representatives are brought on record within the prescribed time at one stage of the suit, it will enure for the benefit of all the subsequent stages of the suit. The application of this principle to different situations will help to answer the problem presented in the present case. (1) A field a suit against B for the recovery of possession and mesne profits. After the issues were framed, B died. At the stage of an interlocutory application for production of documents, the legal representatives of B were brought on record within the time prescribed. The order bringing them on record would enure for the benefit of the entire suit. After the issues were framed, B died. At the stage of an interlocutory application for production of documents, the legal representatives of B were brought on record within the time prescribed. The order bringing them on record would enure for the benefit of the entire suit. (2) The suit was decreed and an appeal was filed in the High Court and was pending therein. The defendant died and his legal representatives were brought on record. The suit was subsequently remanded to the trial Court. The order bringing the legal representatives on record in the appeal would enure for the further stages of the suit. (3) An appeal was filed against an interlocutory order made in a suit. Pending the appeal the defendant died and his legal representatives were brought on record. The appeal was dismissed. The appeal being a continuation or a stage of the suit, the order bringing the legal representatives on record would enure for the subsequent stages of the suit. This would be so whether in the appeal the trial Court’s order was confirmed, modified or reversed. In the above 3 illustrations one fact is common, namely, the order bringinng on reocrd the legal representatives was made at one stage of the suit, be it in the suit or in an appeal against the interlocutory order or final order made in the suit, for an appeal is only a continuation of the suit. Whether the appellate order confirms that of the first Court, modifies or reverses it, it replaces or substitutes the order appealed against. It takes its place in the suit and becomes a part of it. It is as it were the suit was brought to the appellate Court at one stage and the orders made therein were made in the suit itself. Therefore, that order enures for the subsequent stages of the suit.” 9. He further stated that review was maintainable in the Court of the Additional Collector as the Code of the Civil Procedure, 1908 has been applied by Section 341 of U.P.Z.A. & L.R. Act in proceeding under Uttar Pradesh Zamindari Abolition and Land Reform Act, 1950. Section 341 is being reproduced here as under: “341. He further stated that review was maintainable in the Court of the Additional Collector as the Code of the Civil Procedure, 1908 has been applied by Section 341 of U.P.Z.A. & L.R. Act in proceeding under Uttar Pradesh Zamindari Abolition and Land Reform Act, 1950. Section 341 is being reproduced here as under: “341. Application of certain Acts to the proceeding of this Act.— Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1870 (VII of 1870), the Code of Civil Procedure, 1908 (V of 1908), and the [Limitation Act, 1963 (XXXVI of 1963), 4[including Section 5 thereof] shall apply to the proceedings under this Act. 10. In the end the learned counsel for the respondent submitted that if it had been held that the respondent-complainant had no right in the land then the same would be looked into by the Collector in the suit and this Court may not give any finding. 11. Having heard the learned counsel for the parties, I am of the view that the orders dated 16.5.2008 and 30.12.2008 passed by the Collector and the order dated 13.8.2009 passed by the Board of Revenue were correctly passed after looking into the provisions of law and that they cannot be faulted with. It is for a fact that if the legal heirs and representatives are substituted in higher Courts then the benefit would enure for all subsequent stages of litigation, even if the matter is remanded back to the Trial Court. I also hold that since the Civil Procedure Code has been applied by Section 341 of the U.P.Z.A. & L.R. Act, the Additional Commissioner had the power to review his earlier order. The decision in Rangubai Kom Sankar Jagtap v. Sunderbai Bhratar Sakharam Jedhe and others, AIR 1965 SC 1794 , also is of this view. Review is a creation of a Statute and and since Uttar Pradesh Zamindari Abolition and Land Reform Act had accepted the procedures of the C.P.C., it can safely by said that review was maintainable. 12. Under such circumstances, the writ petition being devoid of merit is dismissed. However, it is being provided that the Additional Collector shall decide the case within two months from the date of production of a certified copy of this order.