Court No. - 42
Case :- MATTERS UNDER ARTICLE 227 No. - 9840 of 2019 Petitioner :- Nizamuddin And Another Respondent :- Abdul Salam And 4 Others Counsel for Petitioner :- Siya Ram Pandey
Hon'ble Mrs. Sangeeta Chandra,J.
Oral
(1) Heard the learned counsel for the parties and perused the record.
(2) This petition has been filed challenging the order dated 19.10.2019 passed by the Appellate Court in Miscellaneous Civil Appeal No.12 of 2015 (Abdul Salam and Others Vs. Nizamuddin and Another).
(3) It has been submitted by the learned counsel for the petitioner that one Hazi Mohammad Saeed died on 10.09.2005 inter state. The petitioners Nizamuddin and Wahid are sons of his brother Late Azeem and they filed a Succession Suit before the Civil Judge (Senior Division), Hapur, Ghaziabad registered as Miscellaneous Case No.129 of 2005 for issuance of Succession Certificate in petitioners' favour of Rs.1,32,320/- which remained in the State Bank of India, Hapur Branch as F.D.R. No.0129203461900. In the Lok Adalat on 23.05.2010, the matter was settled between the petitioners and the Bank and the Civil Judge (Senior Division), Hapur, Ghaziabad, by his order dated 23.05.2010 directed the Bank to release Rs.1,35,000/- in favour of the petitioners on their submitting necessary security amount and giving an undertaking to the effect that in case, in future any claim is made by any other legal heir or representative of Late Hazi Mohammad Saeed, the petitioners shall intimate the Bank.
(4) It has been submitted that under Section 21 (2) of the Legal Services Authority Act, 1987, such order passed by the Lok Adalat could not have been appealed against. However, the Appeal was entertained by the learned Trial Court, the court of Additional District and Sessions Judge/F.T.C.-1, Hapur, in Miscellaneous Civil Appeal No.12 of 2015 and the impugned order has been passed.
(5) This Court has perused the judgment and order dated 19.10.2019 challenged in this petition, it is evident from the same that the respondents who were the appellants before the Additional District Judge were also the sons of the brother of Late Hazi Mohammad Saeed and they had challenged the unregistered will dated 05.07.2003 allegedly made out in favour of the petitioners, on the basis of which the Succession Certificate was granted to the petitioners herein. The Appellate Court found on the basis of a perusal on record of case decided by the Lok Adalat on 23.05.2010 that the alleged unregistered will had not been proved.
(6) Learned Appellate Court has posed a valid question that if the petitioners herein claimed to be the legal heirs of Late Hazi Mohammad Saeed on the ground that they were his brother's sons, the respondents i.e. the appellants could also make the same claim on the basis of the same relationship. The Suit could not have been disposed off on the basis of compromise between the petitioners and the Bank alone as issues had been framed by the learned Trial Court at the initial stage with regard whether the will had been duly executed by Late Hazi Mohammad Saeed.
(7) This Court finds no legal infirmity in the order impugned. Let the Suit be decided by the learned Trial Court after impleading all necessary parties and giving proper opportunity of hearing to them also.
(8) Writ petition stands disposed of.
Order Date :- 17.12.2019 PAL