Bhupinder Mohan Sharma And Others vs Kanwar Shakti Partap Singh Parmar And Others

Rajnesh Oswal, J

Through the medium of present petition, the petitioners have impugned the order dated 29.01.2021 (herein after referred to as the order impugned) passed by the respondent No. 2 by virtue of which, the respondent No. 3 has been directed to record evidence and return the findings as to who is the true owner of the land in dispute and what is the status of deceased- Dwarka Nath, in an application filed by the petitioners herein, for bringing on record the petitioners as legal representatives of the deceased Dwarka Nath in a revision petition pending before respondent No.2.

The order impugned has been assailed on the ground that learned Tribunal lacked the jurisdiction to refer the matter to the Tehsildar so as to find out that who is the true owner of the land and also with regard to the status of the deceased Dwarka Nath, in an application filed by the petitioners for bringing them on record as legal representatives of the petitioner-deceased Dwarka Nath in revision petition titled, „Dwarka Nath vs. Kanwar Shakti Partap Singh Parmar‟.

Response stands filed by the respondent No. 1 in which it is stated that the respondent No. 2 has simply directed the respondent No.3 to give report about the true owner of the land and also about the status of the deceased Dwarka Nath and the rights of the parties have not been decided, as such, the present petition is not maintainable. It is further submitted that otherwise also, the respondent No. 2 is the final authority under the Agrarian Reform Act and has the power to obtain information from the subordinate officers of Revenue Department so far as factual status of the case is concerned. It is also stated that the revision petition is still pending with the respondent No. 2 and the property is being enjoyed by the petitioners herein being the legal heirs of Dwarka Nath, the care taker as well as attorney holder of the property.

Mr. R. P. Sharma, learned counsel for the petitioners submitted that learned Tribunal could not have directed the respondent No. 3 to record evidence and return finding as to who is the true owner of the land in dispute and what is the status of the deceased Dwarka Nath. He further submitted that while considering the application for bringing on record the legal representatives, the learned Tribunal had unnecessarily ventured into the main controversy involved in the revision petition pending before it.

Mr. Ved Raj Wazir, learned senior counsel for the respondents has vehemently argued that the learned Tribunal has simply referred the matter to the respondent No. 3 for determination and no final order has been passed.

With the consent of the parties, the petition was finally heard.

Heard learned counsels for the parties and also perused the record.

From the record, it is evident that one Dwarka Nath had filed a revision petition against the order dated 17.09.2019 passed by the Additional Deputy Commissioner, Poonch with powers of Commissioner under Agrarian Reforms Act whereby single appeal against mutations under sections 4 No. 1191 dated 21.11.1986 and 1203 under section 8 dated 09.12.1986 has been accepted and the mutations have been set aside. The said revision petition was filed by the petitioner-Dwarka Nath through his Attorney-Holder Ashok Kumar. The petitioner therein expired on 06.10.2019 as is evident from the death certificate and thereafter, the petitioners herein laid a motion before the learned Tribunal in terms of Order XXII Rule 4 CPC for bringing them on record as legal representatives of the deceased petitioner therein. The said application was opposed by the other side in which it was stated that application under Order XXII Rule 4 CPC is barred by time and further, Dwarka Nath was an attorney holder of Shakti Pratap Singh, thus, he was not either the owner or having any right with the property inherited by the respondent No. 1.

The perusal of order dated 29.01.2021 reveals that the respondent No. 2 confused itself with regard to the controversy involved in the main revision petition while considering the application filed by the petitioners for bringing them on record as legal representatives of the deceased petitioner, in revision petition pending before it. The respondent No. 2, in fact posed itself a wrong question and then proceeded further to determine the same by observing as under:

“The main controversy between the parties cannot be determined by any court unless it has unimpeachable evidence as to who is true owner of the suit land as it is owner and owner alone whose LR’s can be permitted to enjoin in litigation about the ownership of the property”.

Section 2 (11) CPC defines legal representative as under:-

“legal representative” means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where the party sues or issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.”

In Jayarama Reddy & Anr vs. Revenue Divisional Officer & Land AIR 1979 SC 1393, the Apex Court has held that:-

“[28] The first limb of this rule audi altrem partem is that a person must be given an opportunity of being heard before a decision one way or the other affecting him is recorded. As a corollary to this rule it is provided in the Code of Civil Procedure that where a party to the proceeding dies pending the proceeding and the cause of action survives, the legal representatives of the deceased party should be brought on record which only means that such legal representatives must be afforded an opportunity of being heard before any liability is fastened upon them. It may be that the legal representatives in a given situation may be personally liable or the estate of the deceased in their hands would be liable and in either case a decision one way or the other, adverse or favourable to them, cannot be recorded unless they are given an opportunity of being heard. Order 22, rules 3 and 4 codify these procedural safeguards translating into statutory requirement one of the principles of natural justice.”

Further in Custodian of Branches of BANCO National Ultramarino vs Nalini Bai Naique, AIR 1989 SC 1589, the Apex Court has held that:-

“After hearing learned counsel for the parties, we are of opinion that the learned Judicial Commissioner committed serious error of law in setting aside the order of the trial Judge. "Legal representative" as defined in Civil Procedure Code which was admittedly applicable to the proceedings in the suit, means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative”

It needs to be noted that the while considering application for bringing on record the legal representatives of deceased petitioner therein, the respondent No.2 was not supposed to return a finding as to who was the owner of the property that was the subject matter of the revision petition. It was only required to determine as to whether the cause of action survived after the demise of petitioner therein and if the cause of action survived, then the legal representatives of the petitioner there in were required to be brought on record. It needs to be noted that in Para (iii) of the response filed by the respondent No.1, the respondent No. 1 has admitted that the property is being enjoyed by the petitioners herein being legal heirs of deceased Dwarka Nath, so there is no denial of the status of the petitioners being legal heirs of the deceased petitioner therein, by the respondent No.1. Thus, this Court is of the considered opinion that once an application for bringing on record the legal representatives of the deceased petitioner therein was filed by the petitioners, the said application was required to be decided by the Tribunal itself but the learned Tribunal has wrongly referred the said matter to the respondent No. 3. The contention of the respondent No.1 that the deceased Dwarka Nath was a care taker as well as attorney holder of the property cannot be considered while adjudicating an application for bringing on record legal representatives of the deceased petitioner therein and as the said contention pertained to merits of the case, so the same was required to be considered at the time of final adjudication of the revision petition. The respondent No.2 as such has committed jurisdictional error while passing the order impugned by proceeding to determine the ownership of the property in an application filed by the petitioners for bringing on record the legal representatives of the deceased petitioner therein.

Viewed thus, the order impugned is not sustainable in the eyes of law, as such, the same is set aside. Learned Tribunal is directed to decide the application filed by the petitioners for bringing on record legal representatives of the deceased Dwarka Nath, in accordance with law and proceed further only after its disposal.

Disposed of.