Dubey Vs. Deputy Director of Consolidation & Ors  INSC 470 (13 September 1994)
K. Ramaswamy, K. Venkatachala N. (J)
1995 AIR 1010 1995 SCC Supl. (2) 128 JT 1995 (1) 59 1994 SCALE (4)666
for substitution is allowed.
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.
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.
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 60 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.
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
appeals are accordingly allowed. The Writ Petitions stand dismissed.