HIGH COURT OF JUDICATURE AT ALLAHABAD (Judgment reserved on 23.08.2012) (Judgment delivered on 04.12.2012) Court No. - 58 Case :- WRIT - C No. - 59093 of 2008 Petitioner :- Mantoo Lal Respondent :- State Of U.P. & Others Petitioner Counsel :- A.K. Srivastava,Bhola Nath Yadav,Vinod Kr. Yadav Respondent Counsel :- C.S.C.,A.S.Yadav,Abhay Singh,Ravindra Singh,Shiv Sagar Singh Hon'ble Sibghat Ullah Khan,J.
Heard Sri V.K. Yadav, learned counsel for the petitioner, Sri Shiv Sagar Singh, learned counsel for the respondents nos 4 to 9 and Sri Ravindra Singh, learned counsel for respondents nos. 14,15 and 16.
Petitioner instituted a suit which was numbered as suit no. 527 of 2002 before S.D.O./Assistant Collector Ist Class, Bhadohi, District Sant Ravi Das Nagar for declaration of title under Section 229-B, U.P.Z.A.L.R. Act. In the suit there were 19 private defendants. State of U.P. and Nagar Palika Parishad were defendant nos. 20 and 21. Petitioner is son of Kinaram. Defendants 17,18 and 19 i.e. Sohan Lal, Shobhnath and Nankoo Ram were his real brothers and sons of Kinaram. Copy of the plaint is Annexure CA-3 to the counter affidavit filed on behalf of respondents no.4,5,6,9,10 to 12. The case set up in the plaint was that plaintiff petitioner and his brothers defendant nos. 17 to 19 were in possession of the land in dispute and defendants 1 to 16 were threatening to interfere in their possession and entry of the names of defendants no. 1 to 16 in the revenue records was erroneous. It was further stated in the plaint (para 2) that land in dispute belonged to Kinaram and after his death to his sons i.e. plaintiff and defendants no.17 to 19. In para 16 of the plaint it was mentioned that plaintiff and defendants no 17 to 19 were entitled to the relief against defendants no. 1 to 16 of the declaration to the effect that they were Shankermani bhoomidhars in possession of the agricultural land in dispute and in case plaintiff and defendant nos. 17 to 19 were found to be not in possession they should be given possession after dispossession of defendants no. 1 to 16.
Shobhnath defendant no.18, real brother of the plaintiff died after filing of the suit. Counsel for defendant nos. 1 to 3 filed an application in the suit on 15.6.2004 mentioning therein that Shobhnath defendant no.18 had died. Plaintiff filed substitution application along with application for setting aside the abatement and delay condonation application on 4.1.2006. Through the substitution application substitution of three sons and widow of Shobhnath was sought. Defendants no.1 to 16 opposed the substitution application. Deputy Collector Bhadohi through order dated 7.9.2007 dismissed the setting aside abatement applications and delay condonation application and substitution application holding that delay had not been explained. The S.D.O. thereafter also dismissed the entire suit as abated. Against the said order petitioner filed revision no.53 of 2008. Commissioner Vindhyachal, division Mirzapur dismissed the revision on 31.10.2008 hence this writ petition.
Defendant no.18 was real brother of the plaintiff and relief was also sought for him. Neither the proposed legal representatives of defendant no.18 could object to their substitution nor they in fact objected to their substitution. In fact substitution application was for their benefit. There was absolutely no clash of interest between plaintiff and defendant no.18.
Only the proposed heirs can oppose the substitution or setting aside of abatement or condonation of delay. They can also expressly or impliedly waive their objections. In such a situation other defendants have got no occasion to oppose setting aside of abatement or delay condonation. Absolutely, no relief had been sought against defendant no.18. In fact relief was sought for him also. In such a situation the impugned orders rejecting the substitution application setting aside of abatement application and delay condonation application are utterly erroneous in law. Moreover the suit could not be dismissed in its entirety.
Accordingly, the writ petition is allowed. Both the impugned orders are set aside. Abatement is set aside after condoning the delay in applying for the same and substitution application is allowed. The parties are directed to appear before the trial court on 8.1.2013 along with certified copy of this order.
Order Date :- 4.12.2012 vkg