JUDGMENT Poonam Srivastava, J.
1. Heard Shri R.C. Singh, learned counsel for the petitioner and Shri H.N. Singh, learned counsel for the plaintiff respondent
2. Counter and rejoinder affidavits have been exchanged between the parties. Counsel for the parties have agreed that the writ petition may be decided finally at the stage of admission itself. Accordingly, arguments on behalf of petitioner and the contesting respondent was advanced.
3. The petitioner, Shami Ullah Khan has filed this writ petition with a prayer to issue writ of certiorari quashing the entire proceeding in Civil Revision No. 27 of 2001, and the orders dated 31.8.2001, 4.10.2004 passed by the Revisional Court/District Judge Mahrajganj, annexed as annexures 9 and 14 to the writ petition.
4. The petitioner claims his right through Smt. Ran Rati widow of Ganesar (Lal Chand) viz. a viz. contesting respondent No. 1 Dhruv Narain. Pedigree of Ganesar has been detailed in para 4 of the writ petition. The pedigree is given below
5. Brij Mohan had three sons- Gokula, Chilar and Ganesar. Chillar died issueless and Ram Rati is widow of Ganesar who also died issueless (Ram Rati also died during the pendency of proceedings before the court below). Gokula had two sons Chander and Indrajeet. Chander also died issueless. Indrajeet had two sons Dhruv Narain, contesting respondent No. 1 and other son Mahip Naran who is not a party to the dispute. Gokula son of Brij Mohan died first and his 1/3rd share devolved on Chander and Indrajeet. Since Chander died issueless, Indrajeet, father of the contesting respondent, inherited the property of Chander. Upon the death of Indrajeet, Radhey Shyam and Dhruv Narain respondent No. 1 inherited the property. Chillar died after death of Gokula and Ganesar being the nearest heir inherited the property and according to the petitioner, the share of Ganesar became 2/3rd Ram Rati is the wife of Ganesar but they had no issue and after death of her husband, Smt. Ram Rati inherited the entire 2/3rd share of Ganesar, The petitioner alleged that Dhruv Narain respondent No. 2 got the name of Smt. Ram Rati expunged from the family register. Dhruv Narain respondent No. 1 made an application before the Assistant Development Officer (Panchayat) to expunge the name of Smt Ram Rati from the Kutum Register. When the widow of Ganesar came to know about the aforesaid order, she preferred an appeal under Rule 5/6 of U.P. Panchayat Raj (Maintenance of Family Registration ) Rules , 1970 before the Sub Divisional officer, Mahrajganj The appeal was allowed and the name of Smt. Ram Rati continued to be entered in the Kutumb Register vide order dated 8.7.1996. Dhruv Narain filed Civil Misc. Writ Petit ion No, 22540 of 1996 which was dismissed by this Court on 10.3.1999. However, the petitioner-therein (Dhruv Narain-respondent No. 1) was granted liberty to file a regular declaratory suit. Respondent No. 2 had also applied for mutation under Section 34 L.R. Act on the basis of survivorship. Smt. Ram Rati also applied for mutation in which the proclamation was issued. However, after the dismissal of the writ petition on 10.3.1999, respondent No. 1 filed a civil suit No. 307 of 1999. The relief claimed in the civil suit was that Smt. Ram Rati be declared not to be the wife of late Ganesar. Copy of the plaint is annexed as annexure 3 to the writ petition.
6. At the time of filing of the suit it was stated that Smt. Ram Rati was 90 years old and she had entered appearance through her counsel on 15.4.2001. The suit proceeded ex party as Shri Ram Rati was admitted in hospital on 15.4.2001 and the suit was finally decreed ex party on 30.5.2001. Counsel for the petitioner has further submitted that after Ram Rati was discharged from hospital on 1.8.2001 and got the file inspected on 2.8.2001 and thereafter filed an application under Order 9 Rule 13 C.P.C. on 6.8.2001. Copy of the application is annexed as annexure 7 to the writ petition.
7. The Civil Judge, Junior Division, after considering the entire facts and circumstances, stayed the operation of the ex-parte degree dated 30.5.2001 fixing 22.9.2001 for disposal of the application under Order 9 Rule 13 C.P.C. and also application under Section 5 of the Indian Limitation Ad:.
8. Respondent No. 1 Dhruv Narain preferred a Civil Revision against the order staying the operation of the ex parte judgment and decree dated 30.5.2001. The Revisional Court entertained the revision and passed an order on 31.8.2001 directing the parties to maintain status-quo.
9. It has also been pointed out on behalf of the petitioner that the brother of respondent No. 1 Dhruv Narain, namely Nahip Narain or his son Radhey Shyam did not claim any right by survivorship in the mutation proceedings and the Sub Divisional officer allowed the application of Smt. Ram Rati on 23.12.2000, after recording finding that she is legally wedded wife of Ganesar. This order was passed on 21.12.2000 a copy of which is annexed as annexure 4 to the writ petition.
10. Respondent No. 1 preferred an appeal under Section 210 of U.P. Land Revenue Act, against the order dated 23.12.2000. The memo of appeal has been annexed as annexure No. 5 to the writ petition. It is, thus, evident that the dispute between Ram Rati and Dhruv Narain continued simultaneously, for mutation as well as for declaration in the civil suit.
11. The petitioner, Shami Ullah Khan, claims his right on the basis of registered Will dated 7.9.1992 executed by Ram Rati bequeathing her entire property movable and immovable to him. During the pendency of the revision No. 27 of 2001 before the District Judge, Smt. Ram Rati died on 3.2.2002. An, application was filed by respondent No. 1 under Order 22 Rule 3 C.P.C. stating that Smt. Ram Rati has left behind her daughter Smt. Mindalia Phoolmati with a prayer to substitute her as respondent No. 1/1 in the pending revision. Notices were issued on the above application and served upon Smt. Mindalia @ Phoolmati who appeared and filed an application on 8.3.2002 supported with an affidavit stating that she is no t even remotely related with Smt. Ram Rati wife of Ganesar and has no concern over the property whatsoever. Copy of the said application dated 8.5.2002 has been filed as annexure 11 to the writ petition. The petitioner also made an Application for being substituted on the basis of Will on 8.7.2002 under Order 22 Rule 11 read with Rule 11 C.P.C. Contesting respondent filed objection to the application filed by the petitioner and once again raised the same objection that Smt. Ram Rati executor of the Will is not widow of Ganesar. Objection of respondent No. 1 under Order 22 Rule 3 was allowed and dismissed the petitioner's application under Order 22 Rule 10 C.P.C. vide order dated 4.10.2004 which also under challenge.
12. The Revisional Court has recorded finding that Smt Mindalia @ Phoolmati is the daughter of late Ram Rati and should be substituted as a party and the application of the petitioner for being substituted on the basis of registered Will, was rejected.
13. The submission of the counsel for the petitioner is that the Revisional Court has completely overlooked the application and affidavit of Mindaliya @ Phoolmati, who has also been arrayed as proforma respondent in the present writ petition.
14. Respondent No. 1 has filed his counter affidavit and in para 20 of the same it has been submitted that since Smt. Mindalia @ Phoolmati denied haying any concern with Ram Rati as such it is sufficient to prove t hat the petitioner has committed forgery in preparing the Will. Assertion of the contesting respondent is that Ram Rati is not wife of Ganesar but wife of Ghughli on the basis of ex parte decree passed against Ram Rati in respect of which application under Order 9 Rule 13 C.P.C. is still pending disposal and the trial court's order dated 27.8.2001 staying the operation of the order dated 30.5.2001 and fixing 22.1.2001 for disposal of the application under Order 9 Rule 13 C.P.C. and Section 5 of the Indian Limitation Act, is still pending and the Revisional Court was approached challenging the said order.
15. After going through the petition, counter and rejoinder affidavit, it is evident that the order of Revisional Court dated 4.10.2004 has been challenged. Civil Revision No. 27 of 2001 was filed challenging the order dated 27.8.2001 passed by the learned Civil Judge, Junior Division, Mahrajganj, in Misc. Case No. 2 of 2001- Ram Rati v. Dhurv Narain, copy of which is annexure 8 to the writ petition. The ex parte decree dated 30.5.2001 was passed in civil suit No. 307 of 1999 and Smt. Ram Rati filed an application under Order 9 Rule 13 C.P.C. read with Section 151 C.P.C. for setting aside the ex-parte decree and also to stay the operation of the same. The learned trial Judge, after considering the entire facts and circumstances of the case had stayed the operation of the ex parte decree till the final disposal of the application under Order 9 Rule 13 and Section 151 C.P.C. The fixed date was 22.9.2001.
16. It is, thus, clear that Civil Revision No. 27 of 2001 was preferred for a limited purpose and on 31.8.2001, the order dated 27.8.2001 passed by the Civil Judge, Junior Division, was stayed by the Revisional Court admitting the revision and the parties were directed to maintain status-quo.
17. Smt. Ram Rati died during the pendency of the revision and fresh dispute arose regarding substitution of heirs of Smt. Ram Rati and it was during these proceedings, an application was filed on behalf of respondent No. 1 Dhruv Narain to substitute Mindaliya @ Phoolmati as the daughter of Ram Rati who according to the congesting respondent was wife of some' one else and not of Ganesar. An application on behalf of petitioner was filed on the basis of registered Will. The Revisional Court entertained the objection to the petitioner's application for substitution and in exercise of jurisdiction under Section 115 started deciding disputed question of fact and finally rejected application under Order 22 Rules 10 and 11 C.P.C. of the petitioner.
18. The submission on behalf of the petitioner is that the Revisional Court has exceeded its jurisdiction in interfering and deciding question of facts, while deciding the substitution application which was not within its domain. The Revisional Court was only required to adjudicate the controversy raised on behalf of respondent No. 2 which was admittedly staying he operation of the ex-parte decree dated 30.8.2001 in original suit No. 307 of 1999. The limit ed relief claimed in original suit instituted by respondent No. 2 was for declaration that Smt. Ram Rati was not wife of Ganesar and the Revisional Court could not have exceeded its jurisdiction and decided the disputed question of fact and the validity of the Will. Thus, the first submission of Shri R.C. Singh, learned counsel, that the revision was not maintainable against the order-dated 27.8.2001 as it was interlocutory in nature, appears to be absolutely correct. The Revisional Court had not only stayed the proceedings before the trial court but also the order dated 27.8.2001, but also stayed further proceedings in revision No. 106 of 2000 under Section 210 L.R. Act pending before the Sub Divisional Officer, Sadar, Mahrajganj. The order dated 31.8.2001 and also final order dated 4.10.2004 have been challenged in this writ petition. The subsequent order which is final order has not only decided the factual aspect which is still to be decided by the learned Civil Judge (supra) in the event the ex parte decree set aside and also since Ram Rati died during the pendency of the revision and question of substitution was contested, the only course open for the District Judge, was to send the matter back to the trial court for decision on merit after taking evidence and considering the facts and circumstances of the case. No doubt, after the death of Smt. Ram Rati, the substitution was filed before the Revisional Court but since the disputed question of facts arose when Smt Mindaliya @ Phool Mati filed an application disassociating herself from the disputed property Smt Ram Rati. Relying on the basis of registered Will relating to the year 1992, the Revisional Court could not have adjudicated without giving opportunity of hearing to the petitioner to lead evidence whatsoever.
19. In these circumstances, I am of the view that the Revisional Court has completely lost sight of the ambit of the powers vested in it in exercising of jurisdiction under Section 115 C.P.C. The order dated 31.8.2001 admitting the revision and also staying the order of Civil Judge, Junior Division, which was interlocutory in nature, is also rendered illegal and is liable to be quashed.
20. For the reasons discussed above, I am of the view that the orders dated 31.8. 2001 and the order dated 4.10.2034, contained in annexures 9 and 14 to the writ petition, are absolutely illegal, beyond jurisdiction, hence they are quashed. The writ petition is allowed and the case is remanded to the learned Civil Judge, Junior Division, for fresh decision 0£ pending application under Order 9 Rule 13 C.P.C. as well as application for substitution moved by the petitioner on the basis of registered Will relating to the year 1992. The trial court is directed to give reasoned order after giving opportunity to both the parties and if necessary recording evidence. It is; further directed to keep in mind that the suit is only for limited purpose of declaration as to whether late Ram Rati was the wife of Ganesar or not?
21. There shall be no order as to costs.