Charan Singh vs Board of Revenue U.P. At Alld. and Others

Hon''ble Amreshwar Pratap Sahi, J.—Heard Sri R.K. Khanna learned counsel for the petitioner and Sri Pundir for the respondents 2 to 6. Affidavits have been exchanged between the parties and therefore the matter is being disposed of finally at this stage itself.

The background in which the present writ petition has been filed is that a suit u/s 229-B filed by the respondents claiming co-tenancy rights over the disputed property came to be decreed on 10th August, 1990.

Aggrieved the petitioner filed an appeal contending that it was not a case for any such declaration as the suit itself had been filed after more than 25 years and that at the best they could have claimed correction whichever was also not permissible. The learned Commissioner allowed the appeal on 11th November, 1991 and set aside the judgment and decree of the trial court.

The respondents went up in second appeal before the Board of Revenue which was contested by the father of the petitioner Ganga Saran. During the pendency of the second appeal, admittedly Ganga Saran died on 26th of June, 1994. No substitution of the heirs of Ganga Saran was carried out and the appeal remained pending. The appeal came to be finally allowed on 24th December, 1996.

The petitioner, son of Ganga Saran alleged that he came to know of the said ex parte proceedings against a dead person on 11th April, 1997 whereafter a restoration application came to be filed before the Board of Revenue on 25th April, 1997. The said restoration/review came to be rejected on 19th January, 2001 on the ground that no plausible explanation has been given for the delay in filing the restoration application.

The petitioner file a recall application on 12th February, 2001 for setting aside the order dated 19th January, 2001 on the ground that the explanation for delay had been given which appears to have escaped the notice of the learned Member of Board of Revenue. The petitioner also filed writ petition No. 15359 of 2001 assailing the order on the restoration application dated 19th January, 2001 but the same was dismissed as withdrawn as a request was made to allow the petitioner to pursue the recall application subsequently filed. The petition was accordingly dismissed as withdrawn on 2nd May, 2001. The recall application filed by the petitioner came to be rejected by the Board on 4th January, 2002 whereafter the present petition has been filed.

From a perusal of the said facts it is evident that even if the restoration application was found to be slightly barred by time yet the main issue was as to whether the second appeal could have proceeded against the dead person. The fact that Ganga Saran had died on 26th June, 1994 remains undisputed. Further the fact that the petitioner was not substituted in the second appeal has also not been successfully disputed in paragraph 11 of the counter affidavit filed on behalf of the respondents. It is therefore evident that the present petitioner Charan Singh was not substituted in the second appeal and in the absence of an appropriate substitution of the legal heirs of late Ganga Saran the second appeal could not have been disposed of on 24.12.1996. In view of this the position that emerges is that the second appeal has proceeded and was disposed of without bringing all the heirs and legal representatives on record. The other factors relating to the recall application and the review application become redundant as no judgment could have been delivered against a dead person. This was all the more necessary when the first appeal filed by Ganga Saran had been allowed which was under challenge in the the said second appeal.

Accordingly, the impugned judgment dated 24.12.1996 itself cannot be sustained and therefore the consequential orders passed on the restoration/recall application also are not legally sustainable. The order dated 24.12.1996 passed by the Board of Revenue in the second appeal is set aside, the consequential orders are also quashed. The matter is remitted back to the Board of Revenue to proceed to dispose of the second appeal after substituting the legal heirs of late Ganga Saran in accordance with law and dispose of the same as expeditiously as possible preferably within a period of six months.

The writ petition is allowed.