Allahabad High Court
Subhash Chandra And Anr. vs Dy. Director Of Consolidation Jaunpur ... on 24 August, 2012
Author: Ran Vijai Singh
Bench: Ran Vijai Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 5 Case :- WRIT - B No. - 38908 of 2012 Petitioner :- Subhash Chandra And Anr. Respondent :- Dy. Director Of Consolidation Jaunpur And Others Petitioner Counsel :- R.D. Tiwari,M.D. Singh Shekhar Respondent Counsel :- C.S.C.,P.K. Tiwari Hon'ble Ran Vijai Singh,J.
Heard Sri M.D.Singh 'Shekhar', learned Senior counsel assisted Sri R.D. Tiwari, learned counsel for the petitioners, Sri Pradeep Kumar Tiwari, learned counsel appearing for respondent No.4 and learned Standing Counsel for the State respondents.
Counsel for both the parties submits that in this case, at this stage, only a legal question is involved and the same may be decided without inviting any counter affidavit. Therefore, the writ petition is taken up for final disposal with the consent of learned counsel for the parties.
Through this writ petition, petitioners have prayed for issuing a writ of certiorari quashing the order dated 26.12.2008 passed by Settlement Officer Consolidation (in short S.O.C.) in Appeal No.596 (Vidya Devi Vs. Ram Lolarak and others) and order dated 17.7.2012 passed by the Deputy Director of Consolidation (in short D.D.C) in Revision No.1965/2354/4086 (Subhash Chandra Vs. Smt. Vidya Devi and others). Vide order dated 26.12.2008, appeal filed by the respondent No.4 was allowed and the matter was remanded back to the Consolidation Officer for deciding the question of mutation after providing opportunity of hearing as well as leading the evidence etc. whereas by the subsequent order, petitioners' revision was dismissed.
It appears that Late Ram Lolarak has purchased the land in dispute through registered sale deed dated 22.2.1995. Name of Ram Lolarak was mutated in the revenue record in the year 1998. The property in dispute was recorded in the name of one Dinesh Pratap Singh S/o Ram Lolarak. It is the case of the petitioners that the property was purchased by Ram Lolarak in the name of his son (namely Late Dinesh Pratap) when he was minor of 15 years. Prior to that there was litigation between Ram Lolarak and Smt. Vidya Devi, W/o Late Dinesh Pratap Singh (S/o Ram Lolarak) regarding mutation for the reasons that after death of Dinesh Pratap Singh, name of Ram Lolarak was recorded in the revenue record on 15.4.1980. Against that order, Smt. Vidya Devi has filed an appeal which was allowed and remanded on 3.11.1981 by the Settlement Officer Consolidation to the Consolidation Officer. Aggrieved by this order, late Ram Lolarak has filed revision before the Deputy Director of Consolidation, which was allowed and the matter was remanded to the Settlement Officer Consolidation instead of Consolidation Officer. When the matter was pending after remand before the Settlement Officer Consolidation, Ram Lolarak died on 15.6.2003. Thereafter, no substitution etc. was filed whereas the petitioners' name was already recorded in the year 1998. The appeal was allowed by the Settlement Officer Consolidation on 26.12.2008. The petitioners herein have filed revision. In the revision, specific ground was taken that the appeal has been decided against dead person, therefore, it is a nullity. It was also contended that the petitioners ought to have been substituted, alternatively, impleaded as respondents in the appeal as they had already purchased the property way back in the year 1995 and have sufficient interest in the land in dispute. The Deputy Director of Consolidation without adverting to this question, has dismissed the revision and maintained the order of Settlement Officer, Consolidation by which the matter was remanded to the Consolidation Officer.
Sri M.D.Singh 'Shekhar', learned Senior Counsel contends that the Deputy Director of Consolidation erred in maintaining the order of Settlement Officer Consolidation whereas the order dated 26.12.2008 passed by the Settlement Officer Consolidation was against the dead person and that was a nullity, in view of the decision of this Court in the cases of Aziz Mohammad (Dead)through Lrs. And another Vs. Deputy Director of Consolidation, Allahabad and others, 2008 (104) RD, 470 and Raj Narain and others Vs. Deputy Director of Consolidation, Ghazipur and others, 2009(106) RD 98. He has further contended that since the order is a nullity, therefore, the matter ought to have been remanded before the Settlement Officer Consolidation for deciding the appeal after substituting/ impleading the petitioners as respondent.
Refuting the submission of learned counsel for the petitioners, learned counsel for the respondents contends that the respondent No.4 is a lady. She is being harassed by the present petitioners for the last 32 years. She at present is about 60 years and petitioners herein are lingering the proceedings. However, he could not dispute this fact that the appeal was decided against a dead person. The legal position as laid down by this Court in the cases of Aziz Mohammad (Dead) (Supra) has also not been disputed by the learned counsel for the respondents.
On the admitted position, the following facts would reveal:
(1) The present petitioners have purchased the property from Ram Lolarak through registered sale deed in the year 1995 and their names were also mutated in the revenue record in the year 1998.
(2) In the appeal filed by respondent No.4, Ram Lolarak was contesting respondent and when the appeal was decided in the year 2008, Ram Lolarak was no more in existence as he has already died in the year 2003.
No efforts have been made either to substitute the heirs of Ram Lolarak or to implead the present petitioners who have sufficient interest in the land in dispute being bonafide purchaser and an aggrieved person to contest the case. It is not clear as to whether the validity of the sale deed has ever been challenged before the civil court by filing suit for cancellation of sale deed or it is only to be contested before the Consolidation Courts.
The Apex Court in the case of Leelawati Bai Vs. State of Bombay, A.I.R. 1957, Pae 521 has held that the order passed against the dead person is a complete nullity.
In A.I.R. 2001, Supreme Court, 2003, Amba Bai and others Vs. Gopal and others, the Apex Court has held as under:
"As the judgment in the Second Appeal was passed without the knowledge that the appellant had died, the same being a judgment passed against the dead person is a nullity."
In T.Gnanavel and T.S.Kanagaraj and another reported in 2009(75) ALR 515, the Apex Court has taken the same view by observing as under:-
"19. For the reasons aforesaid, we are of the opinion that the High Court had rightly intercepted the provision of Order XXII, Rule 4(4) of the C.P.C. and accordingly held that the decree passed by the Trial Court on20th of December, 2002, in O.S. No.3946 of 1999 was a nullity in the eye of law as the defendant had died during the pendency of the suit for specific performance of the contract for sale and no exemption was sought at the instance of the plaintiff/appellant to bring on record the heirs and legal representatives of the defendant before the judgment was pronounced."
This Court also in the cases of Aziz Mohammad (Dead) through Lrs. And another Vs. Deputy Director of Consolidation, Allahabad and others (Supra) and Raj Narain and others Vs. Deputy Director of Consolidation, Ghazipur and others (Supra) has held that order passed against the dead person is a nullity.
In view of the above legal position, since on the date when appeal was allowed, the respondent Ram Lolarak was dead, therefore, the orders passed by the S.O.C. and Deputy Director of Consolidation cannot be sustained. The writ petition succeeds and is allowed.
The impugned orders passed by the Settlement Officer Consolidation dated 26.12.2008 in Appeal No.596 (Vidya Devi Vs. Ram Lolarak and others) and the order dated 17.7.2012 passed by the Deputy Director of Consolidation in Revision No.1965/2354/4086 (Subhash Chandra Vs. Smt. Vidya Devi and others) are hereby quashed. The matter is remitted back before the Settlement Officer Consolidation to decide the appeal. This Court directs that the petitioners be substituted under Order 22, Rule 4 read with Rule 10 of the Code of Civil Procedure in the appeal and fresh decision be taken by the Settlement Officer Consolidation after hearing both sides expeditiously, not later than six months from the date of receipt of certified copy of the order of this Court.
The parties are at liberty to raise their objections which ever they want to raise.
Order Date :- 24.8.2012 SKD