Suraswati @ Sursati vs D.D.C. And 6 Ors.
2014 Latest Caselaw 3685 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- WRIT - B No. - 37380 of 2014
 

 
Petitioner :- Suraswati @ Sursati
 
Respondent :- D.D.C. And 6 Ors.
 
Counsel for Petitioner :- Rahul Sahai
 
Counsel for Respondent :- C.S.C.,Bablu Singh,P.C.Srivastava,Pankaj Srivastava
 

 
Hon'ble Anjani Kumar Mishra,J.

Heard Shri Rahul Sahai and Sri P.C. Srivastava, leanred counsel who has filed his appearance on behalf of respondent nos. 5, 6 and 7.

It has been submitted by the counsel for the petitioner that the Settlement Officer of Consolidation (the SOC) being the court of fact  was fully competent to appreciate the  evidence and record findings on facts and on law. Even the DDC in view of explanation-3 section 48, as a court of fact, after appreciation of the evidence can record finding on facts and on law contrary to the findings recorded by the court below.

Under the circumstances, it has been submitted that the matter has been uselessly remanded to the Consolidation Officer (the CO). There is no direction for the CO to accept any fresh evidence. As such the order of remand will only prolong the litigation between the parties unnecessarily.

It has been submitted by Sri PC Srivastava, learned counsel for the respondents that the petitioner had based his claim on will. This will could not have been relied upon because it was not probated.

The learned counsel for the petitioner in support of his contention has relied upon a decision of the Supreme Court reported in 2006 (2) SCD 910; Binapani Kar Chowdhury Vs. Sri Satyabrata Basu and another. A perusal of the judgment shows that the will in issue in this case pertained to property falling within the terotrial jurisdiction of the Court of Civil Judge (SD), 8th Court, Alipore and therefore this judgment pertains to will regarding property situate in Calcutta.

The counsel for the petitioner on the other hand has relied upon a decision of this Court reported in 2007 (103) RD 577; Shyam Lal (Dead) through its LRs. Vs. Satya Narain and others.

In paragraph-6 of this judgment, the court relying upon the decision of the Supreme Court in the case of Clarence Pais Vs. Union of India, has held that a Will executed by a Hindu in respect of properties situate out side the provinces of Bengal, Bombay and Madars i.e. the territories which on 1.9.1870 were not subject to Lieutenant Governor of Bengal or within the local limit of ordinary Original Civil Jurisdiction of the High Court of judicature at Madras and Bombay then probate is not necessary in accordance with section 57 of Succession Act.  This question may also be considered at the time of hearing although prima faice this Court is of the opinion that the submission of the learned counsel for the respondents has no force.

The matter requires consideration.

The counsel for the respondents may file counter affidavit within two weeks and the petitioner will have two weeks thereafter to file rejoinder affidavit.

Issue notice to respondent no. 4. Steps be taken within a week. 

List on the date fixed in the notice to be issued to respondent no. 4. 

Until further orders of this Court, the effect and operation of the impugned order dated 29.4.2006 passed by the Assistant Settlement Officer of Consolidation, Ballia in Appeal No. 3092  shall remain stayed.

Order Date :- 28.7.2014

SKS