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2018 DIGILAW 2209 (JHR)

Abid Hussain Ansari v. State of Jharkhand

2018-10-04

RAJESH SHANKAR

body2018
ORDER : 1. The present writ petition has been filed for quashing the order dated 23rd May, 2017 (Annexure-6 to the writ petition), passed by the Additional Collector, Garhwa-respondent no. 2 in L.C. Appeal No. 7 of 2011-12, whereby the prayer of the petitioners in respect of substitution of their names in place of the deceased Athar Hussain Ansari has been rejected. 2. The factual background of the case as stated by the petitioners in the writ petition is that one Hamida Bibi had sold the land pertaining to Plot No. 1334/1535, village Korwadih, measuring an area of 0.15 acre to Md. Tufail Ansari and others. Thereafter Athar Hussain Ansari filed one L.C. Case No. 5 of 2009-10 under Section 16(3) of the Bihar Land Reforms Act, 1962 for pre-emption which was allowed vide order dated 26.05.2011 passed by the Land Reforms Deputy Collector, Garhwa. Aggrieved thereby, Md. Tufail Ansari and others filed L.C. Appeal No. 7 of 2011-12 in the Court of Additional Collector, Garhwa, however, during the pendency of the said appeal, the respondent Athar Hussain Ansari died. The appellants of the said case got Janwi Bibi-respondent no. 8, Azhar Hussain Ansari-respondent no. 9, Rubeida Bibi-respondent no. 10 and Sufaida Bibi-respondent no. 11 substituted as the legal heirs of said Athar Hussain Ansari. The petitioners filed a petition for substitution of their names as legal heirs of Athar Hussain Ansari. The petitioner no. 1 also filed a petition under Order XXII Rule 5 of CPC, praying therein to delete the names of his step mother, step brother and step sisters, who, as per him, were wrongly substituted in connivance with the appellants. The learned Additional Collector directed the Circle Officer to enquire into the matter and to submit an enquiry report. Accordingly, the enquiry report was submitted vide letter dated 08.09.2015. Thereafter, the Additional Collector, Garhwa rejected the prayer of the petitioners for substitution of their names in place of Late Athar Hussain Ansari. 3. By way of supplementary affidavit, the petitioners have also brought on record the affidavits sworn by the villagers and relatives of the petitioners in support of the fact that the petitioners as well as Late Athar Hussain Ansari (original pre-emptor) are the sons of Late Salimani Bibi. 3. By way of supplementary affidavit, the petitioners have also brought on record the affidavits sworn by the villagers and relatives of the petitioners in support of the fact that the petitioners as well as Late Athar Hussain Ansari (original pre-emptor) are the sons of Late Salimani Bibi. Copy of school leaving certificate of Late Athar Hussain Ansari (part of Annexure-7 series) has also been annexed with the supplementary affidavit, which shows his date of birth as 23rd May, 1990, whereas date of birth of Ajhar Hussain Ansari (respondent no. 9) in the school leaving certificate (Annexure-10) has been shown as 20th November, 1990. It is thus contended by the learned counsel for the petitioners that if both school leaving certificates are prima facie considered, there shall be age difference of only about six months between Late Athar Hussain Ansari and Ajhar Hussain Ansari and, thus, they cannot be the sons of same mother. According to the petitioners, Late Athar Hussain Ansari was their brother and was the eldest son of Salimani Bibi. The said contention of the petitioners finds support from letter no. 659 dated 8th September, 2015 issued by the Circle Officer, Garhwa as well as the report of Halka Karamchari dated 11th August, 2015. 4. The learned counsel for the petitioner further submits that Late Jahruddin Ansari had three wives. First wife was Salimani Bibi, from whom there are three sons, namely, Abid Hussain Ansari, Sahare Hussain Ansari and Late Athar Hussain Ansari; second wife- Amna Bibi is issueless; and the third wife-Janwi Bibi from whom there are two daughters, namely, Rubeida Bibi and Sufaida Bibi and one son, namely, Ajhar Hussain Ansari. It is an admitted fact that the father of the petitioners and Late Athar Hussain Ansari is same and the only dispute is with respect to their mothers’ name and as such the Additional Collector has wrongly rejected the substitution petition of the petitioners. It is also submitted that in the School Leaving Certificate of Late Athar Hussain Ansari, his mother’s name has been mentioned as Salimani Bibi and as such the mother of Late Athar Hussain Ansari and the petitioners is same. 5. The learned counsel appearing on behalf of the State, respondent nos. 3, 4, 5 & 7 as well as respondent nos. 5. The learned counsel appearing on behalf of the State, respondent nos. 3, 4, 5 & 7 as well as respondent nos. 8 to 11 jointly submit that the report of the Circle Officer is not acceptable as the same is without jurisdiction. The affidavits cannot be treated as evidence to decide the issue of succession without any order of the competent court of civil jurisdiction. It is further submitted that the petitioners are not the heirs of Late Athar Hussain Ansari and, thus, the Additional Collector has rightly rejected the substitution application of the petitioners. 6. Heard the learned counsel appearing on behalf of the parties and perused the materials available on record. The petitioners have sought direction upon the Additional Collector to substitute their names as legal heirs of Late Athar Hussain Ansari contending that they are the own brothers of the deceased. It appears from the record that the petitioners and the private respondent nos. 8 to 11 are claiming to be the heirs and legal representatives of Late Athar Hussain Ansari and they have framed their own genealogy. 7. Power of the court to substitute legal representative of the plaintiff and the defendant has been provided under Order XXII Rules 3 and 4 of the CPC. If any dispute arises as to whether any person is or is not the legal representative of a deceased plaintiff or of a deceased defendant, such question has to be determined by the Court under Order XXII Rule 5 of CPC which specifically provides that such question shall be decided by the Court itself and if such court is an appellate court, an order may be given to any subordinate court to try such question and submit the report. Order XXII Rule 5 C.P.C. reads as under: “5. Determination of question as to legal representative - Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any recorded at such trial, its findings and reasons therefor and the Appellate Court may take the same into consideration in determining the question.” 8. I have perused the judgment rendered by the Hon’ble Supreme Court in the case of Suresh Kumar Bansal vs. Krishna Bansal and Another, AIR 2010 SC 344 . In the said case, after the death of the plaintiff, his widow filed an application for substitution of her name being the legal representative of the deceased. The brother of the deceased also claimed to be substituted in the said case on the ground that a Will has been executed by the deceased in his favour. The learned Civil Judge allowed the claim of substitution of the widow, however, the brother’s claim was rejected on the ground that the Will did not seem to have been executed by the deceased. In the appeal, the High Court rejected the case of the brother on the ground that the summary enquiry was held by the Civil Judge wherein the Will was found to be suspicious and such finding of the Civil Judge would only be treated as a decision on the question whether the appellant should be impleaded as a party in the eviction suit. When the matter travelled up to the Hon’ble Supreme Court, their Lordships observed as under: “9. Having heard the learned counsel for the parties and after going through the impugned order as well as the application for substitution of the appellant on the basis of the Will alleged to have been executed by the deceased plaintiff, we are of the view that the impugned order of the High Court is liable to be interfered with and the application for impleadment filed at the instance of the appellant on the basis of the Will alleged to have been executed by the deceased plaintiff must be allowed and the appellant must be impleaded in the suit along with the natural heirs and legal representatives of the deceased plaintiff, subject to grant of probate by a competent court of law. It is true that in the impugned order, the High Court has made it clear that the finding regarding genuineness of the Will was made only for the purpose of deciding the application for impleadment filed at the instance of the appellant. It is true that in the impugned order, the High Court has made it clear that the finding regarding genuineness of the Will was made only for the purpose of deciding the application for impleadment filed at the instance of the appellant. But, in our view, if at this stage, the appellant is not permitted to be impleaded and in the event an order of eviction is passed ultimately against the tenant/respondent, the tenants will be evicted by the natural heirs and legal representatives of the deceased plaintiff who thereby shall take possession of the suit premises, but if ultimately the probate of the alleged Will of the deceased plaintiff is granted by the competent court of law, the suit property would devolve on the appellant but not on the natural heirs and legal representative of the deceased. Therefore, in the event of grant of probate in favour of the appellant, he has to take legal proceeding against the natural heirs and legal representatives of the deceased plaintiff for recovery of possession of the suit premises from them which would involve not only huge expenses but also considerable time would be spent to get the suit premises recovered from the natural heirs and legal representatives of the deceased plaintiff. On the other hand, if the appellant is allowed to carry on the eviction petition along with the natural heirs and legal representatives of the deceased plaintiff, in that case decree can be passed for eviction of the tenant when the appellant shall not be entitled to get possession from the tenants in respect of the suit premises until the probate in question is granted and produced before the Court. Therefore, ultimately if the court grants a decree for eviction of the tenant/respondent from the suit premises, such decree shall be passed subject to production of probate by the appellant. Therefore, ultimately if the court grants a decree for eviction of the tenant/respondent from the suit premises, such decree shall be passed subject to production of probate by the appellant. That apart, since the question of genuineness of the will cannot be conclusively gone into by the court in a proceeding for substitution in a pending eviction suit and in view of the fact that an application was made at the instance of the appellant for impleadment as a legal representative of the deceased on the basis of the Will which is yet to be probated, in our view, best course open to the court is to allow impleadment of the appellant in the eviction proceeding, thereby permitting him to proceed with the eviction suit along with natural heirs and legal representatives of the deceased plaintiff, but in case the decree is to be passed for eviction of the tenant from the suit premises such eviction decree shall be subject to the grant of probate of the Will alleged to have been executed by the deceased plaintiff. At the same time, it is clear that in case the Will of the deceased plaintiff is found not to be genuine and probate is not granted, the court shall proceed to grant the eviction decree in favour of the respondent no. 1 and not in favour of the appellant. It is well settled that in the event, the Will is found to be genuine and probate is granted, only the appellant would be entitled to get an order of eviction of the tenants/respondents from the suit premises excluding the claim of the natural heirs and legal representatives of the deceased plaintiff. The Code of Civil Procedure enjoins various provisions only for the purpose of avoiding multiplicity of proceedings and for adjudicating of related disputes in the same proceedings, the parties cannot be driven to different Courts or to institute different proceedings touching on different facets of the same major issue. Such a course of action will result in conflicting judgments and instead of resolving the disputes, they would end up in creation of confusion and conflict. Such a course of action will result in conflicting judgments and instead of resolving the disputes, they would end up in creation of confusion and conflict. It is now well settled that determination of the question as to who is the legal representatives of the deceased plaintiff or defendant under Order XXII Rule 5 of the Code of Civil Procedure is only for the purposes 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. In order to shorten the litigation and to consider the rival claims of the parties, in our view, the proper course to follow is to bring all the heirs and legal representatives of the deceased plaintiff on record including the legal representatives who are claiming on the basis of the Will of the deceased plaintiff so that all the legal representatives namely, the appellant and the natural heirs and legal representatives of the deceased plaintiff can represent the estate of the deceased for the ultimate benefit of the real legal representatives. If this process is followed, this would also avoid delay in disposal of the suit. In view of our discussions made hereinabove, we are, therefore, of the view that the High Court as well as the trial Court were not at all justified in rejecting the application for impleadment filed at the instance of the appellant based on the alleged Will of the deceased plaintiff at this stage of the proceedings.” 9. Thus, any determination on the issue of legal representative made under Order XXII Rule 5 CPC is only for the purpose of representation of the estate of the deceased in that particular case and it neither determines the right, title and interest of any person upon the subject matter of the suit nor extinguishes rights of any other party. Thus, any determination on the issue of legal representative made under Order XXII Rule 5 CPC is only for the purpose of representation of the estate of the deceased in that particular case and it neither determines the right, title and interest of any person upon the subject matter of the suit nor extinguishes rights of any other party. As such, in a suit of probate and other allied matters, the proper course for the court would be to allow the claim raised on the basis of Will for avoiding multiplicity of litigations as well as to avoid delay in disposal of the suit. 10. In the case in hand, when the dispute as to the legal representative of Late Athar Hussain Ansari arose, the Additional Collector directed the Circle Officer to make an enquiry. The petitioners and the private respondent nos. 8 to 11 appeared before the Circle Officer and submitted their affidavits as also adduced their evidences to make out a case that they are the legal heirs of the deceased Late Athar Hussain Ansari. The circle officer also did not come to a concrete finding in favour of any party, however, certain doubt was created on the evidence of respondent no. 8 to 11 stating that in the affidavit, the age of Ajhar Hussain Ansari and his own sister namely Sufaida Bibi is almost same. Both the parties produced documentary evidence before the Additional Collector in their favour who having taken into consideration the document available on record rejected the application of the petitioners. 11. The thrust of the argument of the learned counsel for the petitioners is that if the petitioners are not allowed to be impleaded in the appeal arising out of claim of pre-emption, the entire claim of the petitioners would frustrate if the said appeal is decided in favour of the pre-emptor. 12. I do find substance in the said argument of the learned counsel for the petitioners. Thus, in my considered view, the proper course in the present case would be to allow the substitution petition of the petitioners and to permit the petitioners and the private respondent nos. 8 to 11, both, to defend the appeal. The order dated 23rd May, 2017 (Annexure-6 to the writ petition) passed by the respondent no. 2 is, accordingly, set aside. 8 to 11, both, to defend the appeal. The order dated 23rd May, 2017 (Annexure-6 to the writ petition) passed by the respondent no. 2 is, accordingly, set aside. It is, however, observed that in case the decree is passed in favour of the petitioners and the respondent nos. 8 to 11, the execution of the decree shall be subject to the determination of their right, title and interest upon the property of the deceased (original pre-emptor) by the competent court of law. 13. The writ petition is, accordingly, disposed of with the aforesaid observations.