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2020 DIGILAW 129 (ALL)

Shanti Devi v. D. D. C.

2020-01-10

SALIL KUMAR RAI

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JUDGMENT : Salil Kumar Rai, J. 1. Heard Shri Anil Bhushan and Shri M.D. Singh Shekhar, Senior Counsel, assisted by Shri Raj Kumar, Advocate, representing the petitioner and Shri Ram Bachan Yadav, Advocate, representing respondent Nos. 4 to 6. 2. The facts of the case are that one Mahulli was the original tenure holder of the disputed plots. Mahulli had two sons namely Narain Yadav and Bhagwati and two daughters namely Bisun Dei and Kisun Dei. Bhagwati and Kisun Dei died issueless. Petitioner is the daughter of Bisun Dei. Sonmati was the wife of Narain Yadav. After the death of Mahulli, the plots in dispute in the present writ petition as well as in the consolidation proceedings from which the present writ petition arises and which shall hereinafter be referred to as the 'disputed plots', devolved on Narain Yadav. Narain Yadav died issueless on 30.11.1994. The aforesaid facts are not disputed between the parties. After the death of Narain Yadav, Sonmati, i.e., the widow of Narain Yadav, was recorded as the tenure holder of the disputed plots by an order passed in 1994 under section 34 of the Uttar Pradesh Land Revenue Act, 1901 (hereinafter referred to as, 'Act, 1901') as she was the only surviving heir of Narain Yadav as provided under section 171 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950'). The order passed by the concerned revenue officer resulting in mutation in favour of Sonmati was not challenged by the petitioner. The aforesaid facts have been recorded in the impugned order dated 13.9.2013 passed by the Deputy Director of Consolidation, Mau, District-Mau, i.e., respondent No. 1 (hereinafter referred to as, 'D.D.C.') and also appear to be admitted in paragraph No. 6 of the writ petition. Subsequently, the petitioner instituted Original Suit No. 1128 of 1997 in the Civil Court impleading Sonmati as defendant and for a permanent prohibitory injunction restraining the defendant in the said case from interfering in the possession of the petitioner/plaintiff over the disputed plots and from preventing the petitioner to cultivate the plots. In the said case, the petitioner claimed that Narain Yadav had executed a Will in her favour. Sonmati died on 15.12.2003. Respondent Nos. 4 to 6, who are the nephew of Sonmati claim that before her death, Sonmati had executed a Will dated 24.6.1998 bequeathing the disputed plots in their favour. In the said case, the petitioner claimed that Narain Yadav had executed a Will in her favour. Sonmati died on 15.12.2003. Respondent Nos. 4 to 6, who are the nephew of Sonmati claim that before her death, Sonmati had executed a Will dated 24.6.1998 bequeathing the disputed plots in their favour. On the basis of the said Will dated 24.6.1998, respondent Nos. 4 to 6 filed an application under section 34 of the Act, 1901 for mutation of their names in the revenue records in place of Sonmati and the said application was allowed by the concerned Tehsildar vide his order dated 12.4.2004. However, the names of respondent Nos. 4 to 6 could not get mutated in the revenue records as a result of the order dated 12.4.2004 because in the meantime a notification under section 4 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') was issued, and therefore, C.H. Form 5 prepare'4 during the consolidation operations reflected the name of Sonmati as the tenure holder of the disputed plots. 3. It has been stated in paragraph No. 7 of the writ petition that Original Suit No. 1128 of 1997 had also been abated due to the notification under section 4 of the Act, 1953. However, the said fact stated in paragraph No. 7 of the writ petition does not appear to be correct inasmuch as the photocopy of the plaint annexed as Annexure No. 3 to the writ petition shows that respondent Nos. 4 to 6 have been impleaded as defendant Nos. 2 to 4 in the said case by some order dated 29.4.2008 passed by the concerned trial Court. However, the said fact is not relevant for deciding the present writ petition, and therefore, the Court is not expressing any final opinion on the correctness of the averments made in paragraph No. 7 of the writ petition. After the notification under section 4 of the Act, 1953 and because the names of respondent Nos. 4 to 6 were not entered in the revenue records despite order dated 12.4.2004 passed in their favour under section 34 of the Act, 1901, respondent Nos. 4 to 6 filed objections before the Consolidation Officer (hereinafter referred to as, 'CO.') registering Case No. 1139 under section 9-A(2) of the Act, 1953. The CO. vide his order dated 12.5.2006 allowed the objections filed by respondent Nos. 4 to 6 filed objections before the Consolidation Officer (hereinafter referred to as, 'CO.') registering Case No. 1139 under section 9-A(2) of the Act, 1953. The CO. vide his order dated 12.5.2006 allowed the objections filed by respondent Nos. 4 to 6 under section 9-A(2) of the Act, 1953 and directed that respondent Nos. 4 to 6 be recorded as tenure holders of the disputed plots in place of Sonmati. The petitioner filed a recall application on 15.6.2006 praying for recall of the order dated 12.5.2006 and also filed objections on 21.6.2006 under section 9-A(2) of the Act, 1953 praying to be recorded as the tenure holder of the disputed plots. In the recall application as well as in her objections, the petitioner again claimed that Narain Yadav had executed a Will bequeathing the disputed plots to her. In her objections, the petitioner has also disputed the Will allegedly executed by Sonmati in favour of the respondents. It was also claimed by the petitioner in her recall application that the order dated 12.5.2006 was passed without giving her any opportunity of hearing. The CO. vide his order dated 13.10.2006 allowed the recall application dated 15.6.2006 filed by the petitioner and recalled his previous order dated 12.5.2006 on the ground of irregularity in service of summons in Case No. 1139. It has been recorded in the order dated 23.10.2006 that the order dated 12.5.2006 was passed without issuing any notice or any advertisement regarding the case. Respondent Nos. 4 to 6 filed Appeal No. 1557 before the Settlement Officer of Consolidation, Mau, District-Mau, i.e., respondent No. 2 (hereinafter referred to as, 'S.O.C.') against the order dated 23.10.2006, but the said appeal was dismissed by the S.O.C. vide his order dated 18.9.2010. Consequently, respondent Nos. 4 to 6 filed Revision No. 423 of 2012-13 under section 48 of the Act, 1953 which has been allowed by the D.D.C., vide his order dated 13.9.2013. Through his order dated 13.9.2013, the D.D.C. has set aside the orders dated 23.10.2006 and 18.9.2010 passed by the CO. and the S.O.C. The order dated 13.9.2013 passed by the D.D.C. has been challenged in the present writ petition. 4. Through his order dated 13.9.2013, the D.D.C. has set aside the orders dated 23.10.2006 and 18.9.2010 passed by the CO. and the S.O.C. The order dated 13.9.2013 passed by the D.D.C. has been challenged in the present writ petition. 4. It has been argued by the Counsel for the petitioner that the order dated 12.5.2006 was passed without issuing any notice to the petitioner and without giving her any opportunity of hearing even though she had a legitimate claim over the disputed plots and thus the said order was passed in violation of the principles of natural justice and was therefore rightly recalled by the CO. vide his order dated 23.10.2006. It was argued that the claim of the petitioner was based on the Will dated 23.2.1993 executed by Narain Yadav in her favour and the objections of the petitioner filed under section 9-A(2) of the Act, 1953 are still pending before the concerned CO., and therefore, the D.D.C. had erred in allowing the revision by setting aside the orders dated 23.10.2006 and 18.9.2010 passed by the subordinate consolidation authorities. It was argued that for the aforesaid reasons, the order dated 13.9.2013 passed by the D.D.C. is contrary to law and liable to be aside. 5. I have considered the submission of the Counsel for the petitioner. 6. At the outset, it would be relevant to note that from the admitted pedigree, the petitioner is the sisters' daughter of Narain Yadav. Narayan Yadav was the last male tenant of the disputed plots. Sonmati inherited the plots as the widow of Narayan Yadav. Thus, in view of section 172 of the Act, 1953 the title in the disputed plots shall devolve on the successors of the last male tenant as prescribed in section 171 of the Act, 1950. A perusal of section 171 of the Act, 1950 shows that sisters' son is not an heir of the deceased tenant and therefore the petitioner is not an heir of Narain Yadav or Sonmati and could not have inherited the disputed plots from either of the aforesaid persons under section 171 or section 174 of the Act, 1950. The petitioner can claim succession to the disputed plots only on the basis of the Will allegedly executed by Narain Yadav in her favour. The petitioner can claim succession to the disputed plots only on the basis of the Will allegedly executed by Narain Yadav in her favour. Interestingly, the petitioner did not disclose the date of the Will either in the plaint instituting Original Suit No. 1128 of 1997 or in the recall application filed by her before the CO. for recall of the order dated 12.5.2006 or in her objections filed under section 9-A(2) of the Act, 1953. It appears that the date of the Will has been for the first time disclosed in the writ petition. It has also been stated in the rejoinder affidavit that the petitioner has filed probate Case No. 9 of 2018 for obtaining a probate of the Will dated 23.2.1993 allegedly executed by Narain Yadav in her favour. The pendency of the said probate case is not relevant for adjudication of the present writ petition. It is interesting to note that the effect of the Will dated 23.2.1993 is that it excludes Sonmati from inheriting the disputed plots from Narain Yadav and the probate case for obtaining probate of the Will has been filed in 2018, i.e., almost 14 years after the death of Sonmati. It is also relevant to note that after the mutation order passed in favour of Sonmati in 1994, and even though the petitioner was harassed by Sonmati who allegedly interfered in the possession of the petitioner over the disputed plots forcing the petitioner to institute Original Suit No. 1128/1997 seeking permanent prohibitory injunction, the petitioner did not institute any proceedings before any Court for declaration of her rights in the disputed plots. 7. Apparently, Original Suit No. 1128 of 1997 instituted by the petitioner was not maintainable before the civil Court as the petitioner was not the recorded tenure holder of the disputed plots. In her objections filed under section 9-A(2) of the Act, 1953, the petitioner has also disputed the Will executed by Sonmati in favour of respondent Nos. 4 to 6. The claim of the petitioner can succeed only on the basis of the alleged Will dated 23.2.1993 and the petitioner has no right to challenge the Will executed by Sonmati in favour of respondent Nos. 4 to 6 because she is not the natural heir of sonmati. The petitioner can not challenge the title of respondent Nos. 4 to 6. The claim of the petitioner can succeed only on the basis of the alleged Will dated 23.2.1993 and the petitioner has no right to challenge the Will executed by Sonmati in favour of respondent Nos. 4 to 6 because she is not the natural heir of sonmati. The petitioner can not challenge the title of respondent Nos. 4 to 6 over the disputed plots till she proves her Will dated 23.2.1993 because she is not the heir of Narayan Yadav under section 171 of the Act, 1950 and thus the petitioner had no right to challenge any order passed in favour of respondent Nos. 4 to 6 without disclosing the Will dated 23.2.1993. The aforesaid was more necessary especially in the circumstance the petitioner failed to challenge the right of Sonmati over the disputed plots till she was alive and for the first time instituted proceedings for being recorded in the revenue records in 2006, i.e., 12 years after the name of Sonmati was mutated in the revenue records. A mere statement in the recall application filed by the petitioner that a Will was executed in her favour by Narain Yadav without disclosing the date of the Will was not sufficient for the petitioner to disclose any existing legal interest in the disputed plots. 8. As stated earlier, the recall application or the objections filed by the petitioner under section 9-A(2) of the Act, 1953 do not disclose the date of the Will allegedly executed by Narain Yadav in her favour, and therefore, the recall application was not maintainable. The claim of the petitioner is not that she has perfected her rights by adverse possession over the disputed plots. Under section 9 of the Act, 1953 notices are issued only to tenure holders or any other person interested in the disputed plots. In order to raise any question regarding irregularity in service of notice or any issue regarding violation of the principles of natural justice, the petitioner had to clearly disclose her legal interest in the disputed plots. The contents of the recall application as well as objections filed by the petitioner under section 9-A(2) of the Act, 1953, do not clearly disclose any existing legal interest of the petitioner in the disputed plots, and therefore, there was nothing before the CO. The contents of the recall application as well as objections filed by the petitioner under section 9-A(2) of the Act, 1953, do not clearly disclose any existing legal interest of the petitioner in the disputed plots, and therefore, there was nothing before the CO. to assess as to whether the order dated 21.6.2006 passed in favour of respondent No. 4 to 6 was liable to be recalled at the instance of the petitioner. Evidently, the order was not liable to be recalled at the instance of the petitioner on the contents of the recall application and the objections filed under section 9-A (2) of the Act, 1953. 9. For all the aforesaid reasons, there is no illegality in the order dated 13.9.2013 passed by the Deputy Director of Consolidation, Mau, District-Mau, i.e., respondent No. 1, so as to occasion interference by this Court under Article 226 of the Constitution of India. 10. The writ petition lacks merit, and is, accordingly dismissed. 11. Interim order, if any, stands vacated.