Allahabad High Court
Smt. Zareena And Others vs D.D.C. And Others on 7 July, 2011
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- WRIT - B No. - 36516 of 2011
Petitioner :- Smt. Zareena And Others
Respondent :- D.D.C. And Others
Petitioner Counsel :- T.S. Dabas
Respondent Counsel :- C.S.C.,Pramod Kr. Sharma
Hon'ble Amreshwar Pratap Sahi,J.
Heard learned counsel for the petitioners.
Learned counsel for the petitioners Sri R.C. Singh submits that that the entire proceeding has proceeded ex-parte to the petitioners who are the purchasers from Smt. Kabiran without giving any opportunity of evidence to contest the position as to whether Kabiran had remarried or not. He therefore submits that the entire proceedings are vitiated as the procedure adopted by the authorities is contrary to law.
Learned counsel for the contesting respondents-caveator Sri L.P. Singh submits that the background of the case is that Smt. Kabiran was married to Bashir Khan, a real brother of Imdad Khan. Bashir Khan died issue-less. Smt. Kabiran remarried Sri Nasiruddin. On account of this remarriage Smt. Kabiran lost her rights in the holding of Bashir Khan which according to the provisions of the U.P. Z.A. & L.R. Act reverted back to Imdad Khan and his successors. He therefore contends that the transaction of sale entered into by Smt. Kabiran after her remarriage is void and the petitioners cannot claim any right, title or interest over the share of late Bashir Khan which they allege to have purchased from Smt. Kabiran.
Having heard learned counsel for the parties, the Deputy Director of Consolidation has thrashed out the entire case and has found that on 18.11.2003 the Consolidation Officer directed that the matter shall proceed ex-parte as the petitioners had failed to attend and had also not led any evidence in this regard. Not only this, final orders came to be passed on 4.4.2006. During this intervening period of three years time also the petitioners did not take any steps so as to lead evidence in respect of the alleged remarriage of Smt. Kabiran or to demolish the same.
Apart from this, the Deputy Director of Consolidation has also recorded that the petitioners are none others than the sons and daughters of Smt. Kabiran herself and they got the sale deed executed only with a view to somehow the other get hold of the property falling in the share of Bashir Khan.
Having perused the aforesaid findings, it is evident that Smt. Kabiran or her successors namely the petitioners could never successfully lead any evidence to demolish the remarriage with Nasiruddin. In such a situation this fact remains uncontroverted and therefore it appears that the petitioners realizing this factual axiomatic truth, did not themselves lead any evidence before the Consolidation Officer.
The Settlement Officer Consolidation committed a manifest error by allowing the appeal on the ground that the orders had been passed without allowing the parties lead any evidence. On the contrary as is evident from the narration herein above, it were the petitioners who defaulted in leading any evidence and as a matter of fact they did not have any other evidence to controvert the remarriage of Smt. Kabiran with Nasiruddin and therefore their default was obvious. Bashir Khan had admittedly died issueless. The petitioners therefore, not being the progeny of Bashir Khan cannot claim succession, moreso when they failed to dislodge the remarriage of Smt. Kabiran. The petitioner no. 2 has described himself to be the son of Nasiruddin in the array of parties, who is the second husband of Smt. Kabiran. The petitioners hesitation not to dispute their parentage therefore leads to only one possible conclusion that Smt. Kabiran had remarried. This therefore resolves the doubt and Sri R.C. Singh was unable to give any explanation for the same or point out any material from the petition.
The conclusion therefore drawn by the Deputy Director of Consolidation while reversing the order of the Settlement Officer Consolidation does not suffer from any infirmity much less a legal infirmity. Not only this even before this Court, there is no averment in the writ petition which could demonstrate that Smt. Kabiran never remarried Nasiruddin nor is there any averment in the body of the petition about any different name of the father of the petitioners which makes the case more obvious.
The writ petition lacks merit and is accordingly dismissed.
Order Date :- 7.7.2011
Sahu
