Heard Sri Hari Shanker Mishra learned counsel for the petitioners.
The petition arises out of summary proceedings under Section 34 of the U.P. Land Revenue Act, 1901. The name of the contesting respondents came to be mutated in the year 2006, which came to be objected by the petitioners by moving an application under Section 34 of the U.P. Land Revenue Act, 1901, contending that it is the petitioners, who are entitled to succeed to the holding of late deceased Mohammad who was the eldest brother of the grand-father of the petitioners.
Learned counsel submits that the contesting respondents who had got their name entered, are sons of the daughters of late Mohammad, and their entitlement cannot be accepted as the amendment under the provisions of succession under Section 171 of the U.P. Z.A. & L.R. Act in favour of a married daughter was introduced much later on, long after the death of Mr. Mohammad.
Learned counsel submits that the petitioners grand-father Maula Baksh, being the younger brother of the Mohammd, was entitled for preference according to the then existing law when Mohammad died and by virtue of such provisions it is the petitioners who are entitled to succeed to the holding.
The Tehsildar accepted the claim of the petitioners. The same has been reversed in appeal by the Sub Divisional Officer on the ground that in an internal family suit of the year 1965, the father of the petitioners Abdul Ajiz gave a statement under Order 10, Rule 2 C.P.C. where he had admitted that Maula Baksh had died prior to the death of Mohammad. Not only this, the other brother Allah Diya had also predeceased his elder brother Mohammad.
Accordingly, the appellate authority set aside the order on the basis of this evidence treating Maula Baksh to have predeceased Mohammad, and then accordingly applied Section 171 in favour of daughters, and sons of the daughters, who are the contesting respondents herein.
Sri Mishra submits that the aforesaid approach was erroneous and without considering the evidence on record including the statement of witnesses who had appeared on behalf of the petitioners, and hence a revision was preferred which was dismissed upholding the order of the appellate authority.
Having perused the aforesaid records and having heard Sri Mishra, it is evident that the appellate authority reversed the order on the ground that Maula Baksh, the grand-father of the petitioners had predeceased his brother Sri Mohammad. In such a situation, the petitioners ought to have brought evidence to the contrary to dislodge the said presumption raised on the basis of the statement under Order 10, Rule 2, C.P.C. in the suit to which Abdul Ajiz was a party. The petitioners do not appear to have brought any evidence to the contrary.
Sri Mishra contends that the evidence which was already on record indicated that Maula Baksh was entitled for preference to the holding of Mohammad, and hence, the petitioners were rightly considered to be the eligible heirs by the Tehsildar.
The issue therefore rests on as to when did Maula Baksh die. This being a question of fact, has to be established by way of evidence, which cannot be gone into at least before this Court under Article 226 of the Constitution of India. This evidence has to be led by the petitioners before an appropriate forum that is by filing a regular suit for declaration under Section 229-B of the U.P. Z.A. & L.R. Act, 1950. It is only on the basis of the summary evidence which was led before the authorities that the impugned orders have been passed.
Accordingly, the writ petition is dismissed with liberty to the petitioners to seek their remedy by filing a declaratory suit and in the event such a suit is filed, needless to say, that the findings recorded in the summary jurisdiction would not be an impediment to the petitioners.
The writ petition is dismissed with the said observations.
Order Date :- 28.7.2011 Sahu