Mahesh Kumar Pandey vs State Of U.P. Thru Prin.Secy. ...
2019 Latest Caselaw 335 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 7
 

 
Case :- MISC. SINGLE No. - 3106 of 2019
 

 
Petitioner :- Mahesh Kumar Pandey
 
Respondent :- State Of U.P. Thru Prin.Secy. Panchayati Raj Lucknow & Ors.
 
Counsel for Petitioner :- Ashutosh Misra
 
Counsel for Respondent :- C.S.C.,Umesh Kumar Shukla
 

 
Hon'ble Rajan Roy,J.

Heard Sri Ashutosh Misra, learned counsel for the petitioner and Sri Umesh Kumar Shukla, learned counsel for the opposite party.

This is a writ petition under Article 226 of the Constitution of India challenging the order dated 7.1.2019 passed by the respondent no.2 under section 6A of the U.P. Panchayat Raj Act 1947, by which, the order of the A.D.O. Panchayat dated 24.10.2017 cancelling the inclusion of the name of opposite party no.5 Bitta devi in the Family Register of the family headed by Surendra Kumar, has been set aside.

Fact of the case, in brief, are that Ram Harakh had five sons- Kanhaiya Lal, Balak Ram, Tribhuvan Dutt, Bhagwati and Ram Naresh. All the five sons are no more. Three of them i.e. Balak Ram, Bhagwati and Ram Naresh died issueless. Kanhaiya Lal had a son named Baur alias Chandrika who died in 2014. Opposite party no.5, Bitta claims to be the daughter of Kanhaiya Lal.

The son of Kanhaiya Lal i.e. Baur alias Chandrika died in the year 2014. It is thereafter that a dispute arose between the petitioner and opposite party no.5 obviously on account of a house bearing No.487 existing in the village in question in the name of Surendra Kumar which, according to the learned counsel for the parties before this Court, as per their statement at the Bar, is Joint Family Property which had devolved from five brothers referred above including father of petitioner and Surendra Kumar i.e. Tribhuwan Dutt. Now after the death of Baur alias Chandrika the factual position is that the only male survivors, are in the branch of Tribhuvan Dutt i.e. his sons Surendra Kumar and the petitioner Mahesh Kumar, who are brothers. In this scenario, the opposite party no.5 Bitta Devi who had been married in another family in the same village and is recorded in the Family Register of the said family filed an application in August 2017 for inclusion of her name in the Family Register of the family now headed by Surendra Kumar obviously to stake her claim to her share in the joint family property as per section 108 of the U.P. Revenue Code 2006, corresponding to section 171 of the U.P. Zamindari Abolition and Land Reforms Act 1950 being the daughter of Kanhaiya Lal.

It is said that some mutation proceedings are pending in respect of the said house at the behest of the petitioner and his brother Surendra Kumar, wherein, Bitta Devi is contesting the matter claiming her rights.

The name of Bitta Devi was entered in the Family Register of the family headed by Surendra Kumar with House No.487 being mentioned therein by A.D.O. Panchayat, which was objected by Surendra Kumar, brother of the petitioner, whereupon, the A.D.O. Panchayat cancelled the said entry vide his order dated 24.10.2017. Being aggrieved, Bitta Devi filed an appeal under Rule 6-A of the U.P. Panchayat Raj (Maintenance of Family Register) Rules 1970, but surprisingly enough she did not implead Surendra Kumar, instead she impleaded Mahendra Kumar, the petitioner herein. On this issue, learned counsel for Bitta Devi submitted that he was not aware as to who had filed the appeal. The interest of Mahendra Kumar and Surendra Kumar is the same, nevertheless, Surendra Kumar should have also been impleaded.

Be that as it may, it is this appeal of Bitta Devi which has been allowed vide order dated 7.1.2019 by the S.D.M. It is this order of the Sub Divisional Magistrate which is under challenge by the petitioner.

Contention of the learned counsel for the petitioner, in nutshell, is that there was no occasion for such a fraudulent entry without any application having been filed by Bitta Devi, that too, without any opportunity of hearing to the family of Surendra Kumar including the petitioner herein. The appellate authority has failed to consider the relevant aspects of the matter and has proceeded to allow the inclusion of Bitta Devi's name in the Family Register, by himself considering the evidence instead of remanding the matter back to the A.D.O. Panchayat if at all he found that Bitta Devi had not been heard before passing of the order dated 24.10.2017.

Learned counsel for Bitta Devi, on the other hand, submitted that the entire exercise is aimed at usurping House No.487 in which she has a right in view of section 108 of the U.P. Revenue Code 2006, as, she is the only surviving heir of Kanhaiya Lal who had a share in the house being one of the five brothers who were sons of Ram Harakh.

Now Sri Shukla, learned counsel for the Bitta Devi submits that although she was married and had moved to the house of the in-laws in the same village after the death of her father, she also used to reside in the parental house alongwith her brother and was ordinarily residing there, and being the daughter of Kanhaiya Lal she was entitled to be included in the Family Register at least so far as House No.487 is concerned, having ordinarily resided therein or with regard to the share of Kanhaiya Lal therein. Sri Shukla also says that at no point of time the petitioner or Surendra Kumar have denied the fact that Bitta Devi is the daughter of Kanhaiya Lal. The petitioner denies that she was residing with Baur.

This is a matter to be considered by the authorities.

Contention of Sri Umesh Kumar Shukla, learned counsel for Bitta Devi is that Bitta Devi was recorded as daughter of Kanhaiya Lal in the Family Register pertaining to the family, of which Kanhaiya Lal was the head. Though he has not filed any counter affidavit, but he has placed a photocopy of the extract of such Family Register.

Now the question is whether Bitta Devi is entitled to be registered in the Family Register pertaining to the family now headed by Surendra Kumar merely because House No.487 is mentioned therein. This was one of the aspects which should have been considered, but has not been considered. As already stated earlier, as far as her claim to succession to the property or share of Kanhaiya Lal in the Joint Family Property including House No.487 is concerned, that is a separate matter.

It is also a moot point as to whether merely because of the mention of House No.487 in the Family Register pertaining to the family of Surendra Kumar it would become the sole property of Surendra Kumar, as, it being an admitted fact that the property is a joint, this by itself would not give exclusive right to the petitioner, if other legal heirs have a rightful share as per law. In this context, if Bitta Devi claims her share she is entitled to raise a dispute before the appropriate forum including before the Mutation Court.

It is not in dispute before this Court that House No.487 was a Joint Family Property at the level of five brothers named hereinabove and also that after the death of Baur alias Chandrika the only male survivors are, the sons of Tribhuvan Dutt, but, they could also not deny that if Bitta Devi is the daughter of Kanhaiya Lal, then, subject to contrary bring proved by the petitioner, she would have a share in the house, however, this would be the subject matter of Regular Suit proceedings at the behest of either of the parties in the event of a dispute. The Family Register no doubt would be relevant, but its evidentiary value would be tested in any such proceedings. Even if any mutation proceedings are pending even there the relevant aspects would be considered, as, names are ordered to be mutated on the basis of possession as also transfer and succession, therefore, even if the Family Register or extract of the Family Register prepared in accordance with law i.e. Rules 1970 of the Panchayat Raj Act 1947 and the Rules made thereunder are filed before the Mutation Court or any other Court, its evidentiary value would be examined by such court keeping in mind the evidence led in rebuttal of the same by the concerned party, meaning thereby, the extract of the Family Register in a given case would not by itself be conclusive proof of parentage or succession to any property.

Now, when this court considers the dispute before it against the aforesaid background what it finds is that the dispute before this court is only as to the entitlement of Bitta Devi to inclusion in the family Register of the family headed by Surendra Kumar wherein House No.487 is mentioned as the place where the family resides.

Now coming back to the validity of the Appellate Court's order I find merit in the contention of the learned counsel for the petitioner that if he found that Bitta Devi had not been heard by the A.D.O. Panchayat before passing the order dated 24.10.2017, then, the appropriate course for him was to remand the matter back to the said officer wherein both the parties would have a right of hearing, but he should not have entered into merits of the controversy and should not have decided the matter in the manner in which he has done. The scope of the proceedings under Rules 1970 is very limited. The entries in the Family Register, even if recorded in accordance with Rules, their evidentiary value would have to be tested subject to evidence in rebuttal, if any regular proceedings claiming title or interest in land are initiated.

In view of the above discussion, this Court is of the view that the appellate order is required to be set aside. It is accordingly set aside. Proceedings for inclusion of the name of Bitta Devi under Rule 6 of the Rules 1970 shall now stand restored before the A.D.O. Panchayat who shall consider the matter in the light of the observations made hereinabove and take appropriate decision within the scope of Rule 6 of the Rules 1970 with expedition and cooperation of the parties who shall have an opportunity to present their case and lead such evidence as may be permissible, considering the nature of the proceedings, which shall also include such opportunity for Surendra Kumar apart from the petitioner herein and, such other persons as may claim a right in this regard and the proceedings shall be concluded within three months from the date a certified copy of this judgment is submitted.

With the above observations/directions this writ petition is disposed off.

It is made clear that this Court has not adjudicated the factual merits of the controversy except that the House No.487 is admitted to be the Joint Family Property by the parties.

.

(Rajan Roy, J.)

Order Date :- 1.3.2019

A.Nigam