Allahabad High Court
Surender And 3 Others vs The Deputy Director Of Consolidation ... on 31 August, 2022
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 11.07.2022 Delivered on 31.08.2022 Court No. - 52 Case :- WRIT - B No. - 590 of 2022 Petitioner :- Surender And 3 Others Respondent :- The Deputy Director Of Consolidation And 5 Others Counsel for Petitioner :- Rajendra Rai Counsel for Respondent :- C.S.C.,Pradeep Kumar Rai Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioners, learned counsel for the respondent no. 4 and learned Standing Counsel representing respondent nos. 1, 2 and 7.
In view of the peculiar facts and circumstances of the present case and order proposed to be passed, this Court proceeds to decide this petition finally at admission stage with the consent of the counsel for the parties present, without issuing notices to the respondent nos. 3, 5 and 6.
The challenge in the present writ petition is order dated 22.11.2021 (Annexure No. 7) passed by the Deputy Director of Consolidation (respondent no. 1) allowing the substitution application dated 17.08.2021 moved by Munna Lal (respondent no. 4) to substitute him in place of Murta Devi wife of Sitaram on the basis of registered will deed dated 19.10.2015.
Grievance of the petitioner is that the Deputy Director of Consolidation has illegally allowed the substitution application dated 17.08.2021 without deciding the legality and validity of will deed dated 19.10.2015 which is the basis for respondent no. 4 to be substituted in place of Murta Devi.
Facts culled out from the averments made in the writ petition are that the village/unit was notified under Section 4 of U.P. Consolidation of Holdings Act (in brevity "U.P.C.H. Act") promulgated in the yeasr 1991. At a belated stage, one Murta Devi wife of Sitaram has moved an objection in the year 2014 under Section 9A(2) of U.P.C.H. Act claiming her right and title over the property in question on the basis of succession in place of Sitaram, being his widow. In the basic consolidation record names of predecessors in the interest of the petitioners were recorded. Delay in filing the aforesaid objection under Section 9A(2) of the U.P.C.H. Act on behalf of Murta Devi was allowed by Consolidation Officer, vide order dated 22.11.2017 (Annexure No. 3). Feeling aggrieved against the order dated 22.11.2017, revision has been preferred on behalf of the present petitioners. During the pendency of the revision Smt. Murta Devi (opposite party no. 1 in the revision) has died on 01.05.2018. To substitute himself in place of Smt. Murta Devi, respondent no. 4 has moved a substitution application dated 17.08.2021 along with death certificate dated 20.05.2018 claiming his substitution being legatee of Murta Devi on the basis of registered will deed dated 19.10.2015. Against the substitution application, revisionists/petitioners have filed objection dated 15.11.2021 (Annexure No. 6) with the prayer to stay the present proceeding of the substitution application moved on behalf of respondent no. 4 till the decision of substitution application, which has already been filed before the Consolidation Officer on behalf of respondent no. 4 due to death of Murta Devi. Deputy Director of Consolidation, considering rival submissions of the parties, has allowed the substitution application dated 17.08.2021 with an observation that Munna Lal is substituted only for the purposes of further proceeding of the revision. Said order dated 22.11.2021 passed by the Deputy Director of Consolidation, allowing the substitution application, has been challenged before this Court.
Learned counsel for the petitioners submits that the substitution application has illegally been allowed by the Deputy Director of Consolidation without properly deciding the heir and legal representative of deceased Murta Devi, as required under the provisions enunciated under Order 22 Rule 5 C.P.C. The further proceeding in substitution application, moved before the revisional court, should have been stayed till final decision on the substitution application which was filed before the Consolidation Officer on behalf of Munna Lal, so as to heir and legal representative of Murta Devi could have been decided on the basis of the validity of the will deed. It is further submitted that the Deputy Director of Consolidation has illegally allowed the substitution application without ascertaining the legality and validity of the will deed, which is the basis for the claim put forward by Munna Lal being heir and legal representative of deceased. Therefore, the impugned order dated 22.11.2021 passed by the Deputy Director of Consolidation is cryptic and illegal and, it is, liable to be quashed. In support of his case learned counsel for the petitioner has relied upon the judgment dated 20.11.2018 passed by coordinate Bench of this Court in the case of Narbdeshwar and 2 others vs. Ram Naresh Cahudhari, reported in 2019 4 All LJ 755 and judgment of Hon'ble Supreme Court in the case of Dashrath Rao Kate vs. Brij Mohan Srivastava, reported in AIR 2010 SC 897.
Per contra, learned counsel for the respondent no. 4 has supported the order passed by the Deputy Director of Consolidation and contended that he has simply allowed revision only for the purposes of proceeding at the revisional court and kept the matter open qua right and title subject to prove the legality and validity of the will deed before the consolidation officer where substitution application filed by respondent no. 4 is still pending for final disposal. It is further contended that allowing of substitution application does not amount confer any right and title in favour of substituted person on the basis of the will deed said to have been executed in favour of respondent no. 4. It is next contended that the legality and validity of the will deed executed by Murta Devi had never been challenged by the petitioners, even in objection they have not raised any question with respect to the genuineness of the will deed except that will should have been proved. It is further contended that present writ petition is misconceived and filed on frivolous ground, therefore, same is liable to be dismissed. The Deputy Director of Consolidation has rightly passed the impugned order allowing the substitution application for the purpose to proceed with the revision on merits.
Having considered the rival submissions advanced by the counsel for the parties and perusal of record, I am of the view that before entering into merits of the case, as put forward by the parties, the applicability of provisions as enunciated under Order 22 of Code of Civil Procedure (in brevity "Code") would be a paramount question to be considered by this Court in the instant matter. Order 22 of Code deals with the substitution of heirs and legal representatives of the deceased, who arrayed as a party in the cause title of suit/appeal being plaintiff/appellant or defendant/opposite party. U.P. Consolidation of Holdings Act (in brevity "U.P.C.H. Act") is an special enactment and under the provisions as enunciated under Section 4 of Code the provisions of the Code shall not be deemed to limit or otherwise affect the provisions of U.P.C.H. Act. For the purposes of proceedings before the consolidation courts, procedure has been provided under Section 38 of U.P.C.H. Act read with Rule 26 of U.P. Consolidation of Holdings Rules (in brevity "Rules"). In additional to these provisions, Section 41 of U.P.C.H. Act enunciates that unless otherwise specially provided by or under U.P.C.H. Act, the provisions of Chapter IX and X of U.P. Land Revenue Act, 1901 shall apply to all proceedings including appeal and application under U.P.C.H. Act. No doubt that by virtue of Section 40 of U.P.C.H. Act proceedings before the consolidation authorities have been treated as a judicial proceeding but it does not mean that the provisions of Code are made applicable in the proceeding under the U.P.C.H. Act.
Considering the applicability of Code in proceedings under the U.P. C.H. Act, Full Bench of this Court in the case of Bijai Narain Singh and others vs. State of U.P. and others, reported in A.I.R. 1970 All 241 (FB) has expounded that provisions of Code are not fully applicable in the proceeding under U.P.C.H. Act. Relevant paragraph no. 32 of the judgment is being quoted herein under:-
"32. It may now be seen as to whether the various authorities constituted under the Act are governed by the Code of Civil Procedure in the matter of procedure. On an examination of the various provisions of the Act it would appear that all the provisions of the Code of Civil Procedure have not been made applicable to the proceedings under the Act. Some limited powers have been specifically given under Section 38 and enlarged by Rule 26, which have been again supplemented by S. 41, which says that the provisions of Chapters IX and X of the U.P. Land Revenue Act, 1901, shall apply to all proceedings under the Act. On a perusal of the provisions of Section 38 and Rule 26 it would appear that they make a mention of the application of only some provisions of the Code of Civil Procedure. In the same way the provisions in Chapter IX and X of the Land Revenue Act show that all the provisions of the Code of Civil Procedure have not been made applicable to the proceedings under that Act also. As such, it could not be held that all the provisions of the Code of Civil Procedure have been made applicable to the proceedings under the Act. Had the intention of the legislature been to make all the provisions of the Code of Civil Procedure applicable to the proceedings under the Act, it could have said so just in one sentence."
In the matter of Anand Narayan and others vs. Deputy Director of Consolidation, Gorakhpur and others, reported in 2013(121) RD 45, question relating to applicability of Order 22 of Code was considered and answered by the coordinate Bench of this Court that the provisions as enunciated under Order 22 of Code qua substitution of the heirs and legal representatives of the deceased on the record is not applicable in the cases/appeal/revision under the U.P.C.H. Act. Relevant paragraph no. 12 of the judgment in Anand Narayan (supra) is being quoted herein under:-
"12. In such circumstances, the provisions of Order 22 Rule 3(2) and Rule 4(3) CPC which provides for abatement of the suit and proceeding for not filing the substitution application within 90 days of the death of the parties will not automatically apply to the proceeding before the consolidation authorities and in view of Section 4 CPC, the special provisions regulating the proceedings before the consolidation authorities will have overriding effect and the provisions of CPC will not be imported to the proceeding in the consolidation. The case law relied by counsel for the respondents in the cases of Khedan Vs. Vishwanath, 1989 RD 364, Dibhag Singh Vs. DDC and others, 1990 RD 151, Ishwari Vs. DDC and others, 1990 RD 175 and Ranvir Singh Vs. JDC and others, 2007 (102) RD 42 as well as the Full Bench judgment of this Court in Bijai Narain Singh and Others v. State of U.P. and Others AIR 1970 All 241 (FB) squarely cover the controversy. In such circumstances, the argument of counsel for the petitioner is not liable to be accepted."
Similar question has been considered in the case of Shivrani and others vs. Deputy Director of Consolidation and others, decided on 06.12.1989 by the coordinate Bench of this Court, reported in 1990 RD 175, holding that though the provisions under Order 22 of C.P.C. are not applicable to the U.P. Consolidation of Holdings Act but principle contained under Order 22 of C.P.C. can be borrow to do justice. Therefore, heirs and legal representatives of deceased should be brought on the record.
Considering the proposition of law laid by the Full Bench of this Court, it is now no more res integra that the provisions of C.P.C. are not full applicable in the proceedings under U.P.C.H. Act. Even in those matters where substitution application was filed at a belated stage, there will be no abatement in the matter inasmuch as provisions as enunciated under Order 22 of Code and the provisions as enunciated under Article 120 and 121 of the Limitation Act are not applicable in a proceeding under the U.P.C.H. Act, though provisions of section 5 of the Limitation Act, 1963 has been made applicable, for the limited purposes in proceedings under U.P.C.H. Act by virtue of Section 53-B of the U.P.C.H. Act. Therefore, mere furnishing an information qua death of any party, along with the details of his/her heir and legal representatives, arrayed in the cause title of any proceeding under U.P.C.H. Act would be suffice for the purpose of survival of the cause of action involved in the matter.
Applying the aforesaid proposition of law in the facts and circumstances of the present case, I am of the considered opinion that the Deputy Director of Consolidation has rightly allowed the substitution application for the purposes of survival of the revision. No right, title and interest confers upon the substituted person with respect to the property in question. If there is any dispute qua right, title and interest of the substituted person/persons, same would be adjudicated upon by the court competent in a befitting proceeding, as advised. There was no occasion for the Deputy Director of Consolidation and the Consolidation Officer to examine the legality and validity of the will deed dated 19.10.2015 said to have been executed by Smt. Murta Devi in favour of Munna Lal. Proposition of law as held in the case of Narbdeshwar (supra) and Dashrath Rao Kate (supra) are not fully applicable in the instant matter.
Learned counsel for the petitioners has failed to demonstrate as to how he is prejudiced due to the order passed by the Deputy Director of Consolidation in allowing the substitution application or is there any likelihood of causing miscarriage of justice to the present petitioner. I do not find any justifiable ground to interfere in the impugned orders passed by the Deputy Director of Consolidation, who has substituted Munna Lal (respondent no. 4) in place of deceased Murta Devi subject to decision of court competent qua legality and validity of the will deed.
Accordingly, the present writ petition, being misconceived and devoid on merits, is dismissed with no order as to the costs.
However, before parting the writ petition, the Deputy Director of Consolidation before whom revision is still pending, as evident from the order dated 22.11.2021, is hereby directed to consider and decide the aforesaid revision expeditiously, preferably within a period of three months from the date of production of a certified copy of this order.
It is expected that it should be decided by reasoned and speaking order, in accordance with law, after affording opportunity of hearing to the parties concerned without granting unnecessary adjournments.
Order Date :- 31.8.2022 Pkb/