Sheela Agrawal vs Prabhat Agrawal

Petitioner has filed the present miscellaneous petition being aggrieved by order dated 07.08.2018 passed in Appeal Case No.07/6/2016-17 by Additional Commissioner, Jabalpur Division Jabalpur.

The brief facts of the case is as under - one Madan Mohan Agrawal had filed an application for mutation before Tehsildar. Tehsildar has passed the order of mutation as Sushila Bai had died and on basis of Fauti Namantran, name of Madan Mohan Agrawal was mutated in Khasra No.57, Plot No.3/4 area ad-measuring 11579 Sq. ft. in respect of house Nos.1934 to 1946, Uprenganj, Jabalpur.

Being aggrieved by the order of Tehsildar Smt. Prabhat Agrawal had filed an appeal before the S.D.O. It is submitted by Smt. Prabhat Agrawal that Madan Mohan Agrawal and Sushila Bai were her uncle and aunty. Sushila Bai has executed a Will in favour of Prabhat Agrawal and Madan Mohan Agrawal had given a declaration that appellant Prabhat Agrawal is owner of the land and house. The said declaration was dated 15.06.1990. S.D.O. dismissed the appeal vide its order dated 23.04.2016 on the ground that a civil suit has been filed bearing No.38-A/2015 before Civil Judge Class-I, Jabalpur and judgment and decree which will be passed by the Civil Court will be binding on Revenue Court and parties will be free to get their litigation decided by Civil Court.

The order passed by S.D.O. was challenged by Smt. Prabhat Agrawal in second appeal before Additional Commissioner Jabalpur. Additional Commissioner Jabalpur vide its order dated 07.08.2018 allowed the appeal on the ground that Late Madan Mohan Agrawal had given a declaration on 15.06.1990 and had admitted that Sushila Bai had done a Will in favour of Prabhat Agrawal and appellant has become the owner of land and house by declaration of Madan Mohan Agrawal dated 15.06.1990. By recording aforesaid admission of Madan Mohan Agrawal, Additional Commissioner has allowed the appeal and had directed the Revenue Officers to correct the revenue records by entering the name of Smt. Prabhat Agrawal as Bhumiswami of the land and house situated in Uprenganj, Jabalpur, House No.1934 to 1946.

The order passed by the Additional Commissioner is under challenge in this miscellaneous petition by Sheela Agrawal. Sheela Agrawal claims to be the second wife of deceased Madan Mohan Agrawal. Sheela Agrawal had also filed an application under Order 22 Rule 4 of CPC before Additional Commissioner but her application was rejected on the ground that Executing Court has rejected the application of Sheela Agrawal in Execution Case No.2-A/04 and she was not regarded as the legal heir of deceased Madan Mohan Agrawal.

Petitioner has challenged the order passed by Additional Commissioner on the ground that original jurisdiction is vested with Tehsildar and learned Commissioner could not have passed the order of mutation in second appeal and has passed order in excess of jurisdiction vested in him. It was further averred that Courts below had committed an error in interpretation of objection and in objection, declaration dated 15.06.1990 was said to be forged and fabricated. It was also averred in this petition that respondent No.1 has not challenged Will dated 23.06.1997 executed by Madan Mohan Agrawal. It was further averred that second appeal was not maintainable because after death of respondent No.2, Madan Mohan Agrawal, legal heirs of respondent No.2 were not brought on record and, therefore, appeal ought to have been dismissed as awaited. It was also averred that declaration dated 15. 06.1990 executed by respondent No.2 has no value and on basis of aforesaid grounds had made a prayer to set aside the order passed in second appeal and to affirm the order passed by Tehsildar Kotwali, Jabalpur.

Heard the parties in the miscellaneous petition.

Whether appellate Court had committed an error of law in rejecting the application filed by Sheela Agrawal under Order 22 Rule 4 of Code of Civil Procedure? Application filed by Sheela Agrawal has been rejected on the ground that she has filed application in Execution Case No.2A/04 and Civil Court has rejected application on 30.01.2018. Executed Court had rejected application filed by Sheela Agrawal because provisions of Rule 3, 4 and 8 of Order 22 is not applicable in execution of decree and order. Executing Court has not done any adjudication whether Sheela Agrawal is a legal heir of deceased Madan Mohan Agrawal or not?

In view of this, Second Appellate Court had committed an error of law in dismissing the application only on the ground because Executing Court has dismissed the application. In execution proceeding provisions under Order 22, Rule 3, 4 and 8 are not applicable. Additional Commissioner was required to determine the question whether petitioners are legal representatives of the deceased or not. If they are legal representatives of the deceased then said legal representatives ought to have been added as a party and if it is found that they are not legal representatives then Additional Commissioner ought to have followed the procedure prescribed in the Order 22. As such procedure has not been followed, therefore, the order passed by Additional Commissioner against a dead person is bad in law. The order passed by Additional Commissioner dated 07.08.2018 is quashed. Matter is remanded back to Additional Commissioner, Jabalpur with a direction to consider the application filed by the petitioner and decide the issue whether petitioner is legal representative of deceased Madan Mohan Agrawal or not and thereafter, proceed with the case and decide it after hearing petitioner. It is made clear that at this stage, no opinion has been expressed on the merits of the case.

With  the  aforesaid  direction,  this  miscellaneous  petition  is disposed of.