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2017 DIGILAW 371 (ALL)

Rajesh Kumar Singh v. Board of Revenue

2017-01-30

ANJANI KUMAR MISHRA

body2017
JUDGMENT Anjani Kumar Mishra, J. Heard Sri Triveni Shankar learned counsel for the petitioner and Sri S.N. Tiwari for respondent Nos.10 and 11 as also Sri Rakesh Kumar Singh for respondent Nos.10 to 15. 2. The writ petition arises out of suit filed under Section 176 of U.P. Zamindari Abolition and Land Reforms Act for partition and is directed against the orders dated 15.01.2014 passed by the Additional Commissioner, Varanasi, Division Varanasi and the Board of Revenue dated 18.02.2014. 3. The facts of the case briefly stated, are that the suit No.62 was filed against respondent Nos.10 and 11 in this writ petition. 4. The trial court, on 08.12.2010, passed a preliminary decree of partition, holding the share of the defendant Nos.1 and 2 (the respondent Nos.10 and 11 in this writ petition) to be 1/6. 5. Against the preliminary decree, respondent No.10 filed appeal No.2 of 2010 (Laxmi Niwas Singh vs. Dinesh Pratap Singh & others) before the Additional Commissioner. 6. During pendency of the appeal, Saraswati Devi, widow of Indu Prakash Singh one of the plaintiffs and respondent No.5 in the appeal, is stated to have died on 02.05.2011. 7. It appears that after the death of Saraswati Devi a PA 11 entry was made in favour of respondent Nos. 10 and 11 as also Dinesh Pratap Singh and Rakesh Pratap Singh sons of Sahab Lal, the respondent Nos.12 and 13. It is alleged that the PA 11 entry as procured fraudulently by the persons, in whose favour it was made. This was done, concealing the registered will dated 13.04.2005 alleged to have been executed by Saraswati Devi in favour of the petitioners. The petitioners appear to be the sons of respondent Nos.12 and 13 in the writ petition. 8. It is alleged that the petitioners instituted a mutation case under Section 34 of the U.P. Land Revenue Act claiming mutation on the basis of the registered will, allegedly executed in their favour by Saraswati Devi. 9. It is submitted that having obtained a fraudulent PA 11 entry, a substitution application was filed in the appeal by the respondent No.10 for substitution of respondent Nos.10 to 13 in the appeal as heirs of Saraswati Devi. 10. The petitioners filed an objection to the substitution application, annexing thereto a copy of the will in their favour. 11. 9. It is submitted that having obtained a fraudulent PA 11 entry, a substitution application was filed in the appeal by the respondent No.10 for substitution of respondent Nos.10 to 13 in the appeal as heirs of Saraswati Devi. 10. The petitioners filed an objection to the substitution application, annexing thereto a copy of the will in their favour. 11. It is alleged that they filed a true copy of the will as the original, had been filed by them in the mutation case which was pending between the parties under Section 34 of the U.P. Land Revenue Act. 12. The Additional Commissioner, vide his order dated 15.01.2014 allowed the substitution application of the respondent No.10 and dismissed the objection filed by the petitioner. This order has been affirmed when the consequential revision filed by the petitioners before the Board of Revenue, was dismissed, vide order dated 18.02.2014. 13. Sri Triveni Shankar, learned counsel for respondent submits that the objection filed by the petitioner has been wrongly and illegally dismissed. Referring to order 22, rule 5 C.P.C., especially the proviso thereto, he submits that the issue as to who was the actual heir and legal representative of the deceased Saraswati Devi was necessarily required to be determined by the Additional Commissioner. Instead of discharging this obligation cast by proviso order 22, rule 5, the Additional Commissioner rejected the objection of the petitioner and directed that their claim would abide by the orders to be passed in the mutation proceedings which was admittedly pending between the parties. 14. The same reasoning has been given by the Board of Revenue while dismissing the revision. The Board of Revenue has observed that once the mutation application of the petitioner is allowed, it would be open for them to seek impleadment in the pending appeal. 15. Sri S.N. Tripathi learned counsel for respondent Nos.10 and 11 has supported the impugned order. He submits that the claim of the petitioners would have been considered only if the suit was also one under Section 229-B. No declaration can be granted in a suit under Section 176 of the Act and determining the claim of the petitioners, based on an alleged will in their favour, will necessarily entail granting a declaration. The impugned orders are perfectly justified and call for no interference. 16. The impugned orders are perfectly justified and call for no interference. 16. I have considered the submissions made by the learned counsel for the parties and have perused the record. 17. The factual situation is not disputed. The petitioners are claiming on the basis of a registered will, allegedly executed in their favour, by Saraswati Devi. It is also not in dispute that Saraswati Devi was one of the plaintiffs in the suit for partition. The courts below have rejected the objection/claim for substitution as the heirs of Saraswati Devi relying upon a PA 11 entry. It therefore, stands established on records that the regular court, in a partition, suit has refused to consider the claim of the petitioner on the ground of the entry of a PA 11 entry and pendency of summary mutation proceedings. This approach in my considered opinion is wholly incorrect. 18. Even if the mutation case is decided against the petitioners and they raise a claim on the basis of the same registered will, before the regular courts the regular courts will have jurisdiction to determine the issue without being influenced by the findings returned in the summary mutation proceedings. This is a settled legal position, in view of Section 40 of the U.P. Land Revenue Act. 19. Therefore, this Court finds that the submissions of learned counsel for the petitioner have substance. The Additional Commissioner as also the Board of Revenue had failed to exercise jurisdiction conferred on them by the proviso of order 22, rule 5 C.P.C. The question for determination of heirship is not a declaration, but an issue as to who is the actual legal heir of the deceased Saraswati Devi. In failing to proceed in accordance with order 22, rule 5 C.P.C., the courts below have committed manifest illegality. 20. In such view of the matter the impugned orders cannot be sustained and are set aside. The matter is remitted back to the court below to consider the objection of the petitioners to the substitution application filed by the respondent No.10 and to proceed in accordance with the proviso to order 22, rule 5 C.P.C. 21. In the facts and circumstances of the case, there shall be no order as to costs.