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2020 DIGILAW 69 (ALL)

Anil Dutt Mishra v. Commissioner, Ayodhya Distt.

2020-01-07

SANGEETA CHANDRA

body2020
JUDGMENT : Sangeeta Chandra, J. 1. Heard Sri Angrej Nath Shukla, learned Counsel for the petitioners, Sri Pankaj Gupta, learned Counsel for the respondent Nos. 3 to 5 and learned Standing Counsel appearing on behalf of respondent Nos. 1 and 2. 2. This petition has been filed challenging the order dated 19.12.2016 passed by the Naib Tehsildar, Masaudha, District-Faizabad (now Ayodhya) and the order dated 19.12.2018 passed by the Commissioner Ayodhya, Ayodhya Division, Ayodhya, in Revision No. 1796. 3. The facts relevant for deciding this case are being given herein below in brief. 4. One Ram Lakhan Mishra was the recorded tenure holder of the property in dispute. He had three sons, namely, Someshwar Dutt Mishra, Par-meshwar Dutt Mishra and Maheshwar Dutt Mishra. On 31.1.2002, Ram Lakhan Mishra executed a registered Will-deed in favour of Someshwar Dutt Mishra, Parmeshwar Dutt Mishra and Maheshwar Dutt Mishra and had also given 1/4 share to the sons of Parmeshwar Dutt Mishra, namely, Sunil Dutt Mishra and Anil Dutt Mishra, who were his grandsons. A copy of the registered Will-deed has been filed as Annexure-3 to the petition. 5. On 26.7.2007, Ram Lakhan Mishra died. The petitioners filed a mutation case on the basis of the registered Will-deed and the respondent Nos. 3 and 4 filed a case by way of P.A.-11. Objections were filed by each of the parties and both the applications were clubbed together and the Naib Tehsildar proceeded to decide the same. In the meantime, the respondent Nos. 3 and 4 has also filed a Suit No. 449 of 2007 for cancellation of Will-deed. The said Suit was rejected by a detailed order dated 5.5.2014 by the Additional Civil Judge (Senior Division) III, Faizabad. The respondent Nos. 3 and 4 filed a Civil Appeal No. 141 of 2014 which was dismissed in default on 25.10.2018. 6. It has been orally submitted that on a recall application being moved, the Appeal has been restored and is pending disposal before the Appellate Court. Thereafter, the respondent No. 3 and 4 have filed a transfer application on 13.9.2019 praying the District Judge, Faizabad, to transfer the Appeal from the Court of Special Judge, E.C. Act, A.D.J. IV, Faizabad to some other Court. 7. Thereafter, the respondent No. 3 and 4 have filed a transfer application on 13.9.2019 praying the District Judge, Faizabad, to transfer the Appeal from the Court of Special Judge, E.C. Act, A.D.J. IV, Faizabad to some other Court. 7. The Naib Tehsildar, after the decision of the Regular Suit No. 449 of 2007 on 5.5.2014 rejecting the challenge to the registered Will-deed and during the pendency of the Appeal, has passed the impugned order dated 19.12.2016 rejecting the claim of the petitioners on the basis of the registered Will but directing mutation to be made in pursuance of section 171 of the old Act, now section 108 of the Code. The petitioner being aggrieved filed a Revision, which Revision has also been rejected. Hence this petition. 8. Normally, this Court does not interfere in orders passed during the mutation proceedings as it is open for the parties to get their rights declared before the competent Civil Court or revenue Court. In this case the competent Civil Court has already decided the matter in Regular Suit No. 449 of 2007 by the judgment and order dated 5.5.2014, a copy of which has been filed as Annexure-4 to the writ petition. The Civil Appeal that has been filed by respondent Nos. 3 and 4 is still pending disposal. 9. The Naib Tehsildar therefore had no option but to decide the matter in accordance with the judgment and order dated 5.5.2014 passed by the Additional Civil Judge (Senior Division) III, Faizabad, in Regular Suit No. 449 of 2007. Since the registered Will-deed had been affirmed, there was no question of deciding the case otherwise and directing the mutation of names of all the successors of Late Ram Lakhan Mishra discarding the Will altogether. The Revisional Court also did not appreciate the contention raised by the petitioners and has rejected the Revision summarily. 10. This Court therefore believes that it is a fit case in which the orders passed by the learned Courts below challenged in this petition should be interfered with. 11. The orders dated 19.12.2016 and 19.12.2018 challenged in this petition are set aside. 10. This Court therefore believes that it is a fit case in which the orders passed by the learned Courts below challenged in this petition should be interfered with. 11. The orders dated 19.12.2016 and 19.12.2018 challenged in this petition are set aside. The matter is remanded to the Naib Tehsildar, Masaudha, District-Faizabad (now Ayodhya), to make appropriate orders on the basis of the registered Will-deed dated 31.1.2004 and record the names of the legatees on the basis of the Will of the testator, say, within a period of six weeks from the date a certified copy of this order is produced, which order shall be subject to the decision in the Civil Appeal No. 141 of 2014 which is pending. In case, the Appeal is decided in favour of the respondent Nos. 3 and 4, they may apply before the appropriate authority for getting their names recorded on the basis of the appellate order, if any, passed in their favour. 12. In case, on the basis of the orders impugned any transfer of interest has been made by any of the parties of their share of land, the same shall be subject to the orders ultimately passed by the Appellate Court in the Appeal. 13. The writ petition is allowed to the aforesaid extent.