Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 2523 (ALL)

C. Dutta v. Ddc Varanasi

2024-12-13

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1. Heard Mr. Lokesh Kumar Dwivedi, learned counsel for the petitioners, Mr. S.K. Chaubey, learned counsel for the respondent no. 5/1 and Mr. Ashutosh Kumar Rai, learned Additional Chief Standing Counsel for the State-respondents. 2. Brief facts of the case are that dispute relates to chak Nos. 280 and 340 situated in Village Sarai Mishrani, District Varanasi chak No. 318 situated in Village Rajputani, District Varanasi chak No. 359 situated in Village Jakhawan, District Varanasi. The plots of aforementioned chak was recorded in the name of one Ramjeet. After the death of Ramjeet, his widow Smt. Sahodara was recorded over the plot in question. There was no male or female issue from the wedlock of Ramjeet and Smt. Sahodara. Petitioners are sons of Smt. Sahodara's brother- Kanhaia Lal Tiwari. Smt. Sahodara alleged to have executed of will deed on 11.8.1975 in favour of petitioners. Respondent no.4- Maya is the cousin of deceased Ramjeet and respondent no.5- Adinath is the son of Gaya Prasad who is real brother of Maya. Respondent nos. 4 and 5 were convicted under Sections 302 / 34, 326/ 34, 323/ 34, 324/34 IPC for the murder of Smt. Sahodara vide judgement dated 12.6.1976. Criminal appeal filed by respondent nos. 4 and 5 was allowed by this Court acquitting the respondent nos. 4 and 5 in the aforementioned criminal case. Petitioners filed an application under Section 12 of U.P. Consolidation of Holdings Act, 1953 hereinafter referred to as U.P.C.H. Act for mutation of their name in place of Smt. Sahodara on the basis of will deed dated 11.8.1975. The aforementioned application of the petitioners was registered under Section 12 of U.P.C.H. Act. Assistant Consolidation Officer vide order dated 27.12.1975 directed to record the name of petitioners on the basis of will deed executed in his favour in place of deceased- Sahodara widow of Ramjeet. Against the order of Assistant Consolidation Officer dated 27.12.1975, respondent nos. 4 and 5 filed an appeal under Section 11 of U.P.C.H. Act along with the prayer for condonation of delay before Settlement Officer of Consolidation. Against the order of Assistant Consolidation Officer dated 27.12.1975, respondent nos. 4 and 5 filed an appeal under Section 11 of U.P.C.H. Act along with the prayer for condonation of delay before Settlement Officer of Consolidation. The aforementioned appeal was heard by Assistant Settlement Officer Consolidation Mirzapur and the same was allowed vide order dated 24.8.1977 setting aside the order dated 27.12.1975 and remitted the matter back before the Consolidation Officer to decide the proceeding under Section 12 of U.P.C.H. Act on merit after affording opportunity of hearing to both parties. Against the appellate order dated 24.8.1977, petitioners filed a revision under Section 48 of the U.P.C.H. Act which was dismissed by Deputy Director of Consolidation vide order dated 30.10.1979. Hence this writ petition for the following reliefs:- "(i) To issue a writ of certiorari to quash the order of the learned Assistant Settlement Officer Consolidation and the order of the learned Deputy Director of Consolidation dated 30.10.1979. (ii) To issue any such other suitable writ order or direction as this Hon'ble Court may deem fit and proper under the circumstances of the case." 3. This Court entertained the matter on 29.1.1980 and interim protection was granted to the effect that chak of the petitioner carved out shall not be disturbed until it has already been disturbed in pursuance of the order of Assistant Settlement Officer Consolidation. 4. In pursuance of the aforementioned order dated 29.1.1980, parties have exchanged their pleadings. 5. Counsel for the petitioners submitted that petitioners' objection under Section 12 of U.P.C.H. Act has been allowed by Consolidation Officer to record their name on the basis of will deed executed by Smt. Sahodara in their favour. He submitted that time barred appeal under Section 11 (1) of U.P.C.H. Act filed by respondent nos. 4 and 5 has illegally been entertained, allowed and the matter has been remanded back before the Consolidation Officer to decide the dispute afresh on merit which is abuse of process of law as Assistant Consolidation Officer has already decided the application under Section 12 of U.P.C.H. Act in accordance with law. He further submitted that claim of respondent nos. 4 and 5 cannot be entertained in view of the conviction ordered by the Trial Court against them in the murder of Smt. Sahodara from whom respondent nos. 4 and 5 are claiming right on the basis of succession. He further submitted that claim of respondent nos. 4 and 5 cannot be entertained in view of the conviction ordered by the Trial Court against them in the murder of Smt. Sahodara from whom respondent nos. 4 and 5 are claiming right on the basis of succession. He further submitted that in view of the provisions contained under Section 25 of the HINDU SUCCESSION ACT , 1956, the claim of respondent nos. 4 and 5 cannot be accepted. He submitted that impugned appellate order as well as revisional order are liable to be set aside and order passed by Assistant Consolidation Officer for recording the name of petitioners on the basis of will deed be affirmed. He further placed the judgement of Trial Court by which respondent nos. 4 and 5 have been convicted under Sections 302 /34 IPC in the murder of Smt. Sahodara in order to demonstrate that claim of the respondent nos. 4 and 5 cannot be allowed by any Court of law in the view of the provisions contained under Section 25 of the HINDU SUCCESSION ACT , 1956. He submitted that writ petition should be allowed and impugned appellate order and revisional order are liable to be set aside. 6. On the other hand, Mr. S.K. Chaubey, learned counsel for respondent no. 5/1 submitted that the proceeding under Section 12 of U.P.C.H. Act has been decided by Assistant Consolidation Officer without considering the case of respondent nos. 4 and 5 who are claiming right on the basis of succession. He further submitted that appeal filed by respondent nos. 4 and 5 has been allowed and matter has been remitted back before the Consolidation Officer to decide the dispute under Section 12 of U.P.C.H. Act afresh on merit after affording opportunity of hearing to both parties. He submitted that remand order passed in appeal was maintained in revision, as such, no interference is required in the matter as the dispute will be decided on merit by Consolidation Officer as to whether the petitioners are to be recorded on the basis of will deed or respondent nos. 4 and 5 will be recorded on the basis of succession. He submitted that so far as conviction of the respondent nos. 4 and 5 is concerned, the criminal appeal filed by respondent nos. 4 and 5 have been allowed by this Court and respondent nos. 4 and 5 will be recorded on the basis of succession. He submitted that so far as conviction of the respondent nos. 4 and 5 is concerned, the criminal appeal filed by respondent nos. 4 and 5 have been allowed by this Court and respondent nos. 4 and 5 have been acquitted in the aforementioned criminal case. He further submitted that respondent nos. 4 and 5 were falsely implicated in the criminal proceeding, as such, no interference is required against the order passed by Assistant Settlement Officer Consolidation in appeal remanding the matter before the Consolidation Officer to decide the proceeding afresh. He further submitted that no interference is required in the matter and Consolidation Officer be directed to decide the dispute afresh on merit. 7. I have considered the arguments advanced by learned counsel for the parties and perused the records. 8. There is no dispute about the fact that Assistant Consolidation Officer has allowed the application under Section 12 of U.P.C.H. Act vide order dated 27.12.1975 for recording the name of petitioners on the basis of will deed. There is also no dispute about the fact that in appeal under Section 11 of U.P.C.H. Act, the order of Assistant Consolidation Officer dated 27.12.1975 has been set aside and matter has been remanded back before the Consolidation Officer to decide the proceeding under Section 12 of U.P.C.H. Act on merit in accordance with law. There is also no dispute about the fact that revision filed by petitioners has been dismissed vide order dated 30.10.1979. 9. In order to appreciate the controversy involved in the matter, the perusal of Section 12 of U.P.C.H. Act, Rule 26 (2) of U.P.C.H. Rules, 1954 and Section 25 of HINDU SUCCESSION ACT , 1956 will be relevant which are as under:- " Section 12 of U.P.C.H. Act- [ Decision of matters relating to changes and transactions affecting rights or interests recorded in revised records. - (1) All matters relating to changes and transfers affecting any of the rights or interests recorded in the revised records published under sub-section (1) of Section 10 for which a cause of action had not arisen when proceedings under Sections 7 to 9 were started or were in progress, may be raised before the Assistant Consolidation Officer as and when they arise, but not later than the date of notification under Section 52, or under sub- section (1) of Section 6. (2)The provisions of Sections 7 to 11 shall mutatis mutandis, apply to the hearing and decision of any matter raised under sub- section (1) as if it were a matter raised under the aforesaid sections.] [Substituted by U.P. Act No. 8 of 1963.]" " Rule 26 (2) of U.P.C.H. Rules 1954 - On the date fixed under sub- rule (2) of Rule 25-A, or on any subsequent date fixed for the purpose, the Consolidation Officer shall hear the parties, frame issues on the points in dispute, take evidence, both oral and documentary, and decide the objections." " Section 25 of HINDU SUCCESSION ACT , 1956- Murderer disqualified- A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder." 10. Since the proceeding under Section 12 of U.P.C.H. Act has been decided only on the ground that petitioners are claiming right on the basis of will deed without examining the will deed or claim of the respondent nos. 4 and 5 in proper manner, as such, the appellate Court has set aside the order passed by Assistant Consolidation Officer for recording the name of petitioners and remitting the matter to decide the dispute afresh on merit. In the instant matter, the mandatory provisions contained under Rule 26 (2) of the U.P.C.H. Rules 1954 has also not been complied with. 11. So far as the conviction of respondent nos. In the instant matter, the mandatory provisions contained under Rule 26 (2) of the U.P.C.H. Rules 1954 has also not been complied with. 11. So far as the conviction of respondent nos. 4 and 5 as well as the applicability of Section 25 of the HINDU SUCCESSION ACT , 1956 is concerned, it will be proper that Consolidation Officer should decide the entire dispute including the issue relating to Section 25 of HINDU SUCCESSION ACT , 1956 considering the judgement of conviction as well as acquittal passed by the Criminal Court with respect to murder of Smt. Sahodara. The dispute under Section 12 of U.P.C.H. Act is to be decided in proper manner after framing issues if one party is claiming right on the basis of will deed and other party on the basis of succession. 12. In the instant matter, the respondent nos. 4 and 5 are claiming right on the basis of succession and petitioners are claiming on the basis of will deed, as such, the will deed of the petitioners as well as the claim of succession set up by respondent nos. 4 and 5 in the light of the provisions contained under Section 25 of the HINDU SUCCESSION ACT , 1956 is to be examined by Consolidation Officer after framing issues and giving parties to lead evidence in accordance with law. 13. The matter is pending before this Court for the last more than 43 years, as such, it will be appropriate that Consolidation Officer should decide the entire dispute in proper manner expeditiously. 14. Considering the entire facts and circumstances of the case, no interference is required in the matter against the impugned order dated 24.8.1977 passed by Assistant Settlement Officer of Consolidation and 30.10.1979 passed by Deputy Director of Consolidation. The writ petition is dismissed and Consolidation Officer is directed to decide the dispute under Section 12 of U.P.C.H. Act after framing issues and giving parties to lead evidence as mentioned above expeditiously preferably within period of three months from the date of production of certified copy of this order before him. 15. No order as to costs.