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PETITIONER: SMT. RAMA DUBEY (DEAD) BY LRS.

       Vs.

RESPONDENT: DEPUTY DIRECTOR OF CONSOLIDATION & ORS.

DATE OF JUDGMENT13/09/1994

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J)

CITATION:  1995 AIR 1010            1995 SCC  Supl.  (2) 128  JT 1995 (1)    59        1994 SCALE  (4)666

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.     Application for substitution is allowed. 2.     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. 3.     The 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. Though  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

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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. 4.      It  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 5.      The  appeals  are  accordingly  allowed.  The   Writ Petitions stand dismissed. No Costs. 61