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Allahabad High Court · body

2019 DIGILAW 1719 (ALL)

Munni Lal v. Board of Revenue

2019-07-17

J.J.MUNIR

body2019
JUDGMENT : J.J. MUNIR, J. 1. Heard Awadhesh Kumar, learned Advocate holding brief of Sri Triveni Shankar, learned counsel for the petitioners, Sri Rajesh Kumar, learned Standing Counsel appearing on behalf of respondent nos.1 & 2. No one appears for respondent no.3, Gaon Sabha or respondent nos.4, 5 & 6. 2. This writ petition has been filed challenging an order dated 14.12.1993 passed by the Board of Revenue, U.P. at Allahabad in Second Appeal no.44/1976-77, whereby the Board have ordered that upon death of Raja Ram (respondent no.1 to the appeal), his daughters, Smt. Parbatia and Smt. Phulbatia, be substituted in his place, and by the same order one Kariman (respondent no.6 to this petition) has also been permitted to be substituted in place of deceased Raja Ram, in the second appeal aforesaid. Kariman has been permitted to be substituted on the basis of the last will and testament said to have been executed by Raja Ram in favour of Kariman. 3. The question that arises for consideration in this petition is: Whether it is open to a Court where more claims than one are set up for substitution in place of a deceased party, to permit multiple parties with rival claims or interest to be substituted in place of the original plaintiff/ respondent/ appellant, or the Court is obliged to adjudicate the issue under Order XXII Rule 5 CPC, and decide in favour of one of them? 4. The second appeal before the Board arises from a suit under Section 229B and Section 209 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act (for short ''the Act') relating to certain lands situated in Village Nigai, Pargana Agori, Tehsil Robertsganj, District Mirzapur (now district Sonebhadra). The property subject matter of the suit comprises plot nos.1642/0-15-0, 1647/2-4-0, 1648/1-13-0, 1649/5-14-0, 1657/2-0-0, 1658/0-5-0, 1641/2040/3-19-0, totalling seven gata numbers, area 16-10-0. The said property is hereinafter referred to as the ''suit property'. The petitioners are the plaintiffs in the suit, that was instituted by their father against defendants, Raja Ram, the State of U.P. and the Gaon Sabha, seeking a declaration that the suit property wherein name of defendant no.1 to the suit, Raja Ram has been recorded by mistake, be expunged and the first defendant be dispossessed from the suit property by a decree of ejectment. 5. 5. It is the plaint case that the original plaintiff, Ramkesh, father of the petitioners, was sirdar in possession of the suit property. Ramkesh had two brothers, Ram Lakhan and Ram Bilas, both of whom died issueless. As such, Ramkesh was the sole heir, entitled to succeed to the estate of his deceased brothers, Ram Lakhan and Ram Bilas. It is further averred in the plaint that the name of defendant no.1 to the suit, Raja Ram, was wrongly recorded over the suit property. It was also averred in the plaint that at a time when the plaintiff was minor, he gave the suit property to defendant no.1 on a crop sharing basis to cultivate. Thereafter, defendant no.1 withdrew his possession, which was handed over to the plaintiff. The first defendant had no concern with the suit property. Somehow, the Lekhpal illegally got his name recorded in the remarks column, compelling the plaintiff to file the suit. 6. The suit was contested by Raja Ram, the defendant, who is the sixth respondent to this petition, by filing a written statement. He denied the plaint allegations and asserted that he is in possession over the suit property since before the date of vesting. He urged that his right matured, and he had acquired title under Section 210 of the Act. It was also argued that the plaintiff's case of settlement of the suit property on a crop sharing basis was incorrect. The suit was time barred. The plaintiff was not sirdar or in possession of the suit property. It was also pleaded that during record operations, it was defendant no.1, Raja Ram, who was found in possession. The Trial Court dismissed the suit by its judgment and decree of 21st December, 1974. The plaintiff appealed the Trial Court's judgment and decree. 7. The Additional Commissioner, before whom the appeal came up for determination, on 18.09.1976 affirmed the Trial Court's decree and dismissed the appeal. An appeal from the appellate decree was carried to the Board of Revenue by the original plaintiff, that is to say, Ramkesh, being Second Appeal no.44 of 1976-77, District Mirzapur (presently district Sonebhadra). The appeal was admitted to hearing. Pending this appeal, the original plaintiff, Ramkesh, passed away and so did Raja Ram, original defendant no.1. The petitioners filed a belated substitution application on 23.10.1992, along with a delay condonation application. The appeal was admitted to hearing. Pending this appeal, the original plaintiff, Ramkesh, passed away and so did Raja Ram, original defendant no.1. The petitioners filed a belated substitution application on 23.10.1992, along with a delay condonation application. It is common ground between parties that the substitution application made by the petitioners in the pending second appeal, seeking to be substituted in place of their father, the original plaintiff, Ramkesh was granted, and they were substituted in his stead. So far as the deceased defendant, Raja Ram is concerned, he is survived by three daughters, one of them Raimati had died long back. Raja Ram is said to have executed a will in favour of Kariman son of Nand Lal (son of deceased Raimati). It was further brought on record that in the survey record operations, name of Munni Lal, Babu Lal and Vikram (the writ petitioners), who were found in possession of the suit property were recorded as bhumidhar under the guardianship of their mother, Chhaiwa, and the name of Raja Ram recorded in class-9 was struck off on the basis of an order dated 04.03.1992, passed in Misc. Case no.1038. 8. The application of Kariman sought to substitute him in place of Raja Ram to prosecute the appeal. After the aforesaid substitution application was filed on behalf of Kariman, who was residing in the village where the suit property is situate, the name of the petitioners came to be recorded during the record operations as already said. Kariman entered into a compromise with the petitioners. A compromise was filed before the Board on 02.11.1992. By an order dated 05.11.1992, the Board of Revenue sent the compromise before the Trial Court for verification. It is pleaded in the writ petition that along with the compromise, an application under Order XXIII, Rule 3B CPC, was also filed by the petitioners to compromise the matter through their next friend and mother, Chhaiwa. The compromise was duly verified on 10.03.1993. Once the compromise dated 10.02.1993 was verified, Smt. Parvatia and Phulmatia, the two daughters of the deceased of defendant, Raja Ram, filed an application for substitution, as well as an application seeking abatement of the appeal and striking off the name of Kariman from the array of parties to the second appeal before the Board. Once the compromise dated 10.02.1993 was verified, Smt. Parvatia and Phulmatia, the two daughters of the deceased of defendant, Raja Ram, filed an application for substitution, as well as an application seeking abatement of the appeal and striking off the name of Kariman from the array of parties to the second appeal before the Board. The will executed by the late Raja Ram in favour of Kariman was impugned in the application made by his daughters. Now, before the Board an objection was filed by the petitioners to the substitution sought by Smt. Parvatia and Phulmatia. 9. The application for substitution on behalf of daughters of Raja Ram was resisted by the petitioners, and also by Kariman. The petitioners filed an application on 08.11.1993 before the Board, along with the original will dated 08.09.1991, executed by Raja Ram in favour of Kariman with a prayer to direct the Trial Court to take evidence and to decide the genuineness of the will, as well as the question as to who were the actual heirs and legal representatives of Raja Ram, in accordance with the provisions of Order XXII, Rule 5 CPC. The said application was moved on 08.11.1993. The controversy that, thus, emerged in the pending appeal before the Board of Revenue is that the deceased, Raja Ram had executed a will in favour of Kariman, the son of a pre-deceased daughter, who had also been substituted. The question was about his right to represent the deceased defendant, Raja Ram in the second appeal, a right which the daughters of the deceased defendant, Smt. Parvatia and Phulmatia, claimed as his lawful heirs and legal representatives. The Board of Revenue despite an application being made requesting that the question as to who is the legal representative of deceased defendant Raja Ram, without deciding the question aforesaid at all, permitted Smt. Parvatia and Phulmatia to be substituted, also as heirs in place of the defendant along with Kariman, the grandson of defendant, Raja Ram, by means of the impugned order dated 14.12.1993. 10. 10. It appears that the Board, though, without saying so expressly, has proceeded on foot of the reasoning that where more than one or multiple and rival claims to substitution are brought, a substitution permitted in itself not being decisive of the right of parties to a beneficial interest in the estate of the deceased, or the property, all the rival claims to substitution ought to be allowed. 11. Learned counsel for the petitioners has pointed out that this course of action is not in accordance with law. He has invited the attention of this Court to the provisions of Order XXII Rule 5 CPC that read thus: "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." 12. Sri Rajesh Kumar, learned Standing Counsel has defended the order passed by the Board of Revenue and said that since an order of mutation does not decide the entitlement of parties, the petitioners cannot urge that any prejudice is caused by the order impugned passed in the substitution matter. He points out that permitting all persons who claim to be legal representatives of the deceased defendant to be substituted, would enable the Court to ultimately consider the case of each one of them, and thus, eschew multiplicity of litigation, that may arise in consequence of refusal to a particular party. 13. In support of his contention, learned counsel for the petitioners has placed reliance upon a decision of the Supreme Court in Jaladi Suguna (Dead) through L. Rs. v. Satya Sai Central Trust & others, 2008 8 SCC 521 , where in paragraph 15 of the report, it has been held: "15. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. v. Satya Sai Central Trust & others, 2008 8 SCC 521 , where in paragraph 15 of the report, it has been held: "15. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, can it be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject-matter of the suit, vis- -vis other rival claimants to the estate of the deceased." 14. Learned counsel for the petitioners, Sri Awadhesh Kumar further placed reliance in support of the aforesaid position of law upon a decision of the Supreme Court in Mahanth Satyanand @ Ramjee Singh vs. Shyam Lal Chauhan, 2018 141 RD 225 , where the question in the context of facts involved, has been considered by their Lordships in paragraphs 5, 7, 8, 9, 10 & 11 of the report, which read thus: "5. The main contention of the appellants is that the High Court has committed a grave error of law by allowing both the impleadment applications preferred by the rival contenders staking claim to be the genuine legal representatives of the deceased, without determining the question under the prescribed provisions of law as to who is the legal representative of the deceased appellant. The High Court's order is not in consonance with the provisions of Order 22 Rule 5 of CPC and it is unjust that instead of deciding the paramount question, the High Court had simply passed the order entitling both the contenders to raise their respective arguments in the subject matter of Suit. The order of the High Court is perverse, not in the interest of justice and contrary to the settled principles of law. 7. Then the issue that crops up for consideration is, what is the course to be adopted by the Court when such an applications are filed before the Court. 8. The procedural aspect to be followed when an application is filed under Order 22 Rule 5, CPC is no longer res integra as this Court in Jaladi Suguna (deceased) through Lrs. v. Satya Sai Central Trust, 2008 8 SCC 521 , has interpreted Order 22 Rule 5 of CPC in the following terms: "Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, it can be said that the estate of the deceased is represented. ......... The provisions of Rule IV and V of Order XXII are mandatory. When a respondent in an appeal dies, the court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased and proceed to hear the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court. ......... Though Rule V does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 makes it clear that the appeal can be heard only after the legal representatives are brought on record". (emphasis supplied) 9. Perceiving the present case in the above framework, the High Court, after noticing that two individual applicants have claimed to be the chelas of the deceased Mahanth and were contending to be his legal representatives, has rightly by an order dated 2nd July, 2008 referred the matter to the Subordinate Judge, Bhabhua for determination under Order 22 Rule 5 of CPC. Accordingly, the trial Court decided the question and sent back the matter with its report dated 4th December, 2008. Before the High Court, the rival contender has filed an objection and in response to the same, the other applicant has filed his counter affidavit. Thereafter, the High Court, instead of deciding on merits the question of legal representative of the deceased out of the two contenders, has simply substituted both the contenders in the place of the deceased appellant before it. 10. Apparently, the issue of bringing on record the legal representative in a pending appeal has to be dealt with in a manner prescribed under the provisions of Order 22 Rule 5. From the context of the settled legal position, it is clear that when a question arises before the Court in a pending matter as to who will come on record as the legal heir of the deceased, the Court shall, before proceeding to decide with the substantive issues involved in the case, first and foremost, shall decide who is the legal representative of the deceased. It is also well settled that when a party dies at the stage of second appeal and there are rival contenders claiming to be the legal representatives of the deceased, as in the present case, there is a burden cast upon the Court to first decide as to who is the legal representative of the deceased. Without doing so, the Court cannot proceed with the disposal of the case on hand. At the same time, the Court cannot make all the contenders as parties. The aspect of deciding legal representative cannot also be postponed with a view to decide the same at the time of final disposal of the appeal on merits. It is significant that the statute has clearly mandated that if the question of deciding the legal representative of a legatee arises before an appellate Court, it may direct the subordinate Court to make enquiries by leading evidence if any through the process of trial and record its finding as to who is the legal representative. After considering the finding recorded by the trial Court, the appellate Court can decide and bring on record the legal representative of the deceased. 11. It is indisputable that the procedural laws are meant to advance justice. A procedure contemplated under the code which is mandatory in nature shall not be skipped or ignored by the Courts. Whereas, in the instant case, the High Court's approach has diluted the purport of Order 22 Rule 5 of the CPC and is contrary to the law laid down by this Court in Jaladi Suguna (supra). Such an approach of the High Court cannot be sustained." 15. This question had also fallen for consideration of their Lordships of the Supreme Court in Karedla Parthasaradhi vs. Gangula Ramanamma (D) and others, 2014 15 SCC 789 , where it has been held, directly relating to the issue under consideration here, as under: "25. Such an approach of the High Court cannot be sustained." 15. This question had also fallen for consideration of their Lordships of the Supreme Court in Karedla Parthasaradhi vs. Gangula Ramanamma (D) and others, 2014 15 SCC 789 , where it has been held, directly relating to the issue under consideration here, as under: "25. The question as to whether a particular person is a legal representative of a deceased plaintiff or defendant is required to be decided by the court as per procedure prescribed in Order 22 Rule 5 CPC which 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." 31. Now in such situation arising in a case, we have two options. First, to remand the case to the High Court which in turn will remand the case to the trial court to decide the application filed by K. Sanjiva Rao under Order 22 Rule 4 as provided in proviso to Order 22 Rule 5 CPC and depending upon the inquiry report, will decide the appeal and second, this Court should retain the session of this appeal to itself and remand the case to the trial court as provided under Order 41 Rule 25 read with Order 22 Rule 5 proviso for holding an inquiry and on receipt of the finding, finally decide the appeal in the light of finding so recorded by the trial court. 32. Having given our anxious consideration to this question, we are of the considered view that second course suggested above seems to be more appropriate. 32. Having given our anxious consideration to this question, we are of the considered view that second course suggested above seems to be more appropriate. It is for the reason that firstly, retaining the session of the appeal and inviting findings from the trial court would save time, avoid incurring cost and curtail stages of litigation and secondly, the litigation which is pending since 1985 would come to an end early and lastly by taking such recourse, no prejudice of any nature would cause to any parties because so far as other issues on merits are concerned, we have already decided and lastly, the expression "appellate court" occurring in Order 41 Rule 25 read with Order 22 Rule 5 proviso would not only include the first appellate court, but also include the second appellate court and this Court, once this Court has granted leave to file appeal to the appellant. In such event, this Court being the last appellate court, can always exercise the powers available under Order 41 Rule 25 read with Order 22 Rule 5 proviso CPC and especially when the High Court as the first appellate court failed to exercise such powers for proper determination of rights of the parties." 16. The issue has also been considered by this Court in Narbdeshwar and others vs. Ram Naresh Chaudhari, 2019 143 RD 440, where principles with regard to a claim to substitution, particularly based on a will and the obligation to decide it under Order XXII Rule 5 CPC, has been laid down. It is held in Narbdeshwar and others (supra) as follows: "22. Taking a conspectus of the provisions in the Code and the decisions noticed above, the legal principles that could be deduced therefrom, concerning substitution of legal representative(s) of a deceased party, are (a) Where there is a dispute as to who would be legal representative of a deceased party, the Court has to first determine the issue, under Order 22 Rule 5 CPC, before proceeding further in the matter. (b) An enquiry under Order 22 Rule 5 CPC is to determine the legal representative for the purposes of pursuing the suit or proceeding and, ordinarily, such an enquiry is of summary nature. A finding returned therein would not amount to res judicata in between parties, who set up rival claim against legatee, in regular probate proceeding. (b) An enquiry under Order 22 Rule 5 CPC is to determine the legal representative for the purposes of pursuing the suit or proceeding and, ordinarily, such an enquiry is of summary nature. A finding returned therein would not amount to res judicata in between parties, who set up rival claim against legatee, in regular probate proceeding. But such finding would be final and operate as res judicata as regards that suit or proceeding and cannot be re-agitated at a subsequent stage in the same suit or proceeding. (c) Where the continuance of the suit or proceeding would depend upon decision on the issue as to whether a person is or is not the legal representative(s) of the deceased party, and other than that person or persons there is no one else to represent the estate of the deceased for the purposes of suing or being sued, the Court must determine the issue before proceeding further in the suit or proceeding and for that purpose, if required, may take such evidence, as may be necessary. (d) Where a person sets up a Will of a deceased party to claim substitution, and there are other natural heirs of the deceased party already on record or brought on record, to avoid unnecessary delay that might be caused on account of an inquiry as regards legality and validity of the Will, he may be impleaded along with other natural heirs of the deceased party even without a thorough enquiry as regards validity and legality of the Will, though subject to final determination of the rights of the parties in regular probate proceeding. Likewise, where a sole natural heir or one of the natural heirs of the deceased party is also a legatee of the deceased party, he may be impleaded as legal representative of the deceased party even without a thorough enquiry as regards validity or legality of the Will. (e) Where a serious dispute is raised as to whether a person is or is not a legal representative of the deceased party, either as natural heir or as legatee of the deceased party, and the suit or proceeding would abate but for impleadment of such person, the Court must decide the issue by taking evidence. (e) Where a serious dispute is raised as to whether a person is or is not a legal representative of the deceased party, either as natural heir or as legatee of the deceased party, and the suit or proceeding would abate but for impleadment of such person, the Court must decide the issue by taking evidence. And, in such cases, where the basis of the claim for impleadment is a Will, validity or legality of the Will would have to be tested after taking evidence in proof thereof." 17. In the present case what emerges from the facts is that the two substitution applications of two sets of legal representatives, each claiming in them the right to represent the estate of the deceased defendant, Raja Ram in the pending appeal before the Board was in question. One of them was a grandson, claiming through a pre-deceased daughter, who propounded a will, whereas the other set of claim was from the daughters of deceased defendant, Raja Ram, who claimed on the basis of intestacy. The Board of Revenue by a casual order and without the least consideration or adherence to the provisions of Order XXII Rule 5 CPC, proceeded to allow both sets of applications, and substituted both sets of legal representatives without deciding the question at all as to who was entitled to represent the estate of the deceased defendant, Raja Ram in the pending second appeal, and to be substituted in his place, in accordance with law. 18. In the circumstances, the proviso to Rule 5 of Order XXII, would require the matter to be remitted to the Trial Court for undertaking an inquiry limited to the purpose of deciding the pending applications for substitution as to who was entitled to represent the estate of the deceased, and be substituted in place of the deceased defendant, Raja Ram in the pending second appeal. That of course would be done by the Trial Court by taking necessary evidence to judge the parties' rival claims, with a finding returned to the Board. But all this has not been done, and by an order surreptitiously made the substitution applications filed by both sets of persons claiming to be legal representatives of the deceased defendant, Raja Ram have been allowed. This course of action is patently illegal and the impugned order passed by the Board of Revenue cannot, therefore, be sustained. 19. But all this has not been done, and by an order surreptitiously made the substitution applications filed by both sets of persons claiming to be legal representatives of the deceased defendant, Raja Ram have been allowed. This course of action is patently illegal and the impugned order passed by the Board of Revenue cannot, therefore, be sustained. 19. The writ petition succeeds and is allowed. The impugned order dated 14.12.1993 passed by the Board of Revenue, U.P. at Allahabad in Second Appeal no.44/1976-77, Ramkesh vs. Raja Ram and others, relating to District Mirzapur (now Sonebhadra) is hereby quashed. The Board of Revenue is directed to remit the matter to the Trial Court as regards the entitlement to represent the estate of the deceased defendant, Raja Ram in the pending appeal before it, with a direction that after taking such evidence as may be required, findings with reasons be returned to the Board. This exercise, the Board shall ensure, is completed within a period of three months from the date this order is produced before the Board. The Board, after taking into consideration the findings returned by the Trial Court under the proviso to Order XXII Rule 5 CPC, shall pass appropriate orders on the applications for substitutions made on behalf of the two sets of applicants before it, and thereafter proceed with the appeal, hearing the party brought on record in place of deceased defendant, Raja Ram. Costs easy.