Full Judgment Text
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PETITIONER:
SMT. RAMA DUBEY (DEAD) BY LRS.
Vs.
RESPONDENT:
DEPUTY DIRECTOR OF CONSOLIDATION & ORS.
DATE OF JUDGMENT13/09/1994
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
VENKATACHALA N. (J)
CITATION:
1995 AIR 1010 1995 SCC Supl. (2) 128
JT 1995 (1) 59 1994 SCALE (4)666
ACT:
HEADNOTE:
JUDGMENT:
ORDER
1. Application for substitution is allowed.
2. These appeals arise from the Judgment of the High
Court of Allahabad in C.MW.P. No. 11059/80 dated December 4,
19855 and C.M.W.P. No. 9127/80 of even date.
3. The admitted facts are that Gajadhar and Harjeet
are the recorded tenure holders of the lands in Plots No s.
1072 (0.33 acres), 1082 (0.40 acres), 1083 (0.10 acres),
1202 (0.30 acres), 1203 (0.30 acres), 1204 (0.17 acres),
1210 (0.22 acres), 1069/3 (0.10 acres), 1106 (0.73 acres),
1199 (0.16 acres), and 1329 (0.55 acres) situated in Village
Mahen Babu, Tehsil Salempur, Distt. Deoria CUP.). On
February 20, 1960 they had executed a registered gift deed
in favour of their sister’s daughter Smt. Rama-the appellant
not only in respect of moveable properties but also in
respect of immoveable properties. Gajadhar died in 1969. The
gift deed comprised of 11 plots of land. Harjeet during his
life time had executed a Will on February 1, 1977 in respect
of two plots of land. He died on February 22, 1977. During
the life time of Harjeet, in 1971, the appellant had filed
proceedings before the Consolidation officer to mutate her
name in the record of rights as successor in interest on the
basis of the gift deed executed by Gajadhar and Harjeer.
Though notice was taken to Harjeet and served on him in
person, he did not appear. Therefore, the order was passed
exparte mutating her name in respect of 11 plots gifted to
her under the gift deed dated February 29, 1960. She also
filed the proceedings after the demise of Harjeet to mutate
her name in respect of 2 plots which were bequeathed to
her. Ultimately, the respondent filed the Writ Petitions
challenging the orders seeking condonation of delay which
was rejected by the Tribunals below. The learned single
Judge in the impugned order held that the respondent is a
legal heir of the deceased Gajadhar and
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Harjeet and the refusal to condone the delay is not valid in
law and accordingly, set aside the orders and remitted the
matter to the Consolidation Officer to dispose of the matter
on merits after recording the evidence and giving
opportunity to the parties. Thus, these appeals by special
leave.
4. It is not in dispute that during the life time of
Harjeet, Rama - the appellant had initiated proceedings in
1971 to mutate her name in the record of rights in respect
of 11 plots bequeathed to her jointly by him and his brother
Gajadhar under gift deed dated February 29.1960. The
finding recorded by the authorities was that although notice
was served on him personally, he did not question the claim
made by Rama in the consolidation proceedings. The
respondent, who is seeking to come as a legal
representative of Harjeet, cannot have a higher right of
what the owner himself had. The owner who had the notice of
the proceedings since remained ex-parte, the respondent
cannot stand on a higher footing than him and when the
proceedings before the consolidation officer had been
allowed to become final, it was not open to the respondent
to file after years an application under Section 5 of the
Limitation Act to condone the delay and to ask for the
benefit of hearing. The Consolidation Officer rightly
refused to condone the delay and therefore, the High Court
was not right in interfering with the said well reasoned
order. Equally, with regard to the Will executed by Harjeet
in respect of two plots of land, although proceedings were
initiated after the demise of Harjeet in a collateral
proceedings initiated by the respondent himself, it was
found that the respondents are immically disposed to
Harjeet and that Ram was looking after her uncles Gajadhar
and Harjeet. In that view of the situation, the Will is not
well-founded. When once the Will is not accepted by the
authorities, there is nothing left for the respondents to
claim their rights as alleged legal representatives of
Harjeet. Under these circumstances, the High Court was not
also justified in interfering with the order made in respect
of the properties covered under the Will
5. The appeals are accordingly allowed. The Writ
Petitions stand dismissed.
No Costs.
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