Ranga.s
It is your mistake u did not narrate the entire case, as you are selective. If u are insisting for model application u could have rebutted my earlier comment itself. .I do not need a certificate from you about my credentials as i am well acquainted with the acts , and there is NO NEED FOR ADVICE FROM YOU , on what to do and not. I never disputed ,the technicalities on section 192 & 193, i said simply quoted the act and its procedures I have provided a judgement in this regard. If u are good enough to read go through it or give to some one who can read and explain to you.
Patna High Court
Dwarika Nath Pahari And Ors. vs Ganga Bishun Pahari on 29 July, 2004
Equivalent citations: 2004 (2) BLJR 1494
Author: S Hussain
Bench: S Hussain
JUDGMENT
S.N. Hussain, J.
1. Heard learned counsel for the petitioners who were Opposite parties in Misc. Case No. 18/2002 which was filed by the Opposite party of this civil revision under Section 192 of the Indian Succession Act, 1925 (hereinafter to be referred to as 'the Act' for the sake of brevity) claiming a right of succession over the suit property, possession of which was alleged to be taken away by the revision-petitioners who were Opposite parties in the said Misc. Case.
2. The petitioners are aggrieved by the order dated 24.7.2003 passed in the aforesaid Misc. Case by which the learned 7th Additional District Judge, Gaya, had rejected the objection of the revision-petitioners seeking dismissal of the Misc. Case as not maintainable and for rejection of the same under the provision of Order VII, Rule 11 CPC.
3. The learned counsel for the revision-petitioners contended that Section 193 of the Act, specifically provides that the District Judge to whom such application is made should before proceeding within the case, comply four requirements, namely, examination of applicant on oath, to enquire whether there was sufficient ground for believing that the party in possession had no lawful title, also to enquire that the applicant was really entitled and to see whether the application was bona fide and the applicant was likely to be materially prejudiced if left to the ordinary remedy of a suit. It was further contended that Section 194 of the Act provides the procedure for proceeding in such cases, which clearly shows that the Court should proceed with such cases only after being satisfied with respect to the aforesaid requirements provided under Section 193 of the Act.
4. Referring to the aforesaid provisions of law the learned counsel for the petitioners avers that the impugned order had been passed without applicant's examination on oath and also without recording satisfaction of the grounds mentioned in Section 193 of the Act. Hence, according to him, steps had been taken under Section 194 of the Act, by issuance of summons and notices to the other side without taking any step for prima facie enquiry under Section 193 of the Act. It was also contended on behalf of the revision petitioners that summary remedy under Part-7 of the Act, was not available where a person is in possession and there is a dispute of title and specially when the objectors namely, the revision-petitioners are in possession since the life time of the deceased.
5. One Raja Ram Panada was the predecessor of both the parties as averred on behalf of the revision-petitioners and the Opposite party had also raised allegations of manufacture of registered documents by the objectors-revision petitioners and hence, the legality or otherwise of which can not be challenged in a summary Court under the provision of the Act.
6. The learned counsel for the revision-petitioners relied upon a decision reported in AIR 1979 MP 145 (Vikram Singh v. Krishna Singh Judev and Ors. and AIR 1979 Kerala 47 (Krishna Pillai Raghavan Pillai v. Velayundhan Pillai Raghavan Pilial and Ors.) in which it was held that in cases where the Court below without recording satisfaction as contemplated by Section 193 of the Act, orders issuance of summons, it will be acting contrary to the provisions of law provided by Section 194 of the Act. He also relied upon a decision reported in AIR 1986 All 310 (Ramapati Tewari v. Dharam Sukh Tewari and Anr. another) which held that the summary remedy under Section 192 of the Act was not contemplated to be availed of in cases where a person is in possession and there is a dispute of title in regard to the property concerned and hence in the normal course the ordinary remedy of a suit provided by law for evicting a person in possession can not be by-passed. It also held that if the District judge does not record any finding with respect to the material prejudice to the applicant and with respect to the bona fide of the applicant's claim, no step under Section 194 of the Act, was legal and justified. The learned counsel for the revision-petitioners also submitted that Section 208 of the Act, provides that there was no impediment in filing an appropriate suit by the applicant (OP of this Revision). Hence, it was submitted on behalf of the revision petitioners that the impugned order of the learned Court below was absolutely bad in law, without jurisdiction and is fit to be set aside.
7. On the other hand, the learned counsel for the Opposite party (Applicant in the Court below) submitted that summary proceeding under the Act, was only to see whether property would go to the applicant or anyone else. In this regard he relied upon a decision reported in AIR 1922 Patna 372 (Biso Ram and Ors. v. Emperor) which held that the said Act, provides a mere appropriate remedy in cases involving disputes regarding succession to estates involving breaches of peace. It was also contended on behalf of the Opposite party that the applicant of Misc. Case was examined on oath and the satisfaction of the Court was clearly there in the impugned order dated 24.7.2003 and only whereafter notices were directed to be issued after which the objectors (revision-petitioners) may contest and final decision will be taken soon as this was a summary enquiry. He also stated that Section 208 of the Act, provides for filing of a suit only after the decision in the summary enquiry is made under this Act. The learned counsel for the Opposite party also relied upon a decision reported in AIR 1942 Patna 251 (Mahant Goswami Krishnadevanand v. Mahant Kapildeo Ramji) according to which, if the finding of the Court below that there were sufficient grounds for further action under Section 193 of the Act it can not be challenged in revision. Hence, according to him, there is nothing wrong in the impugned order. The learned counsel for the Opposite party also claimed that the possession, if any, of the revision-petitioners in the life time of Raja Ram Pahari may be permissive possession, but after his death it was clearly illegal and hence issuance of notices under Section 194 of the Act was legal and proper.
8. After considering the arguments raised on behalf of both the parties and also after perusing the materials on record as well as the specific provisions of law it is apparent that admittedly the property belonged to Raja Ram Pahari, but the main dispute between the parties were to fold. Firstly, whether the objectors (revision-petitioners) were the children and heirs of Raja Ram Paharia and secondly, whether the registered documents said to have been executed by Raja Ram Paharia in their favour were genuine and legal.
9. The aforesaid Misc. Case No. 18./2002 was filed on 2.7.2002 and on the next date i.e. 8.7.2002 the report of the Sheristedar was considered and on the third date i.e. 15.7.2002 the case was adjourned on the fourth date 22.7.2002 the applicant's lawyer was heard in admission matter and finally by the fifth order dated 26.7.2002 the case was admitted and notices were directed to be issued to the other side.
10. From the perusal of the record it is quite apparent that the applicant was never examined on oath nor the learned Court below before admitting the case and issuing notice to the other side ever arrived at any of the four requirements as provided under Section 193 of the Act. Hence, there was clear violation of the provisions of law and in the facts and circumstances there was no occasion for the learned Court below to proceed under Section 194 of the Act. The case law relied upon by the learned counsel for the Opposite party, namely, Biso Ram and Ors., supra, is not applicable in the facts and circumstances of the instant case as by the said ruling comparison has been made only between the provisions of the Succession Act, and the provision of Section 145 Cr PC whereas the provisions and requirements of Sections 193 and 194 of the Act were not at all dealt with. So far the case law, namely Mahant Goswami Krishnadevanand, supra, is concerned, it merely held that where grounds of satisfaction under Section 193 of the Act had been recorded by the Court below, it can not be challenged in revision under Section 115 CPC. But in the instant case there is no such finding of satisfaction at all as provided under Section 193 of the Act, and hence further proceeding under Section 194 of the Act, is clearly illegal, unjustified and beyond the jurisdiction of the learned Court below.
11. In my view it was incumbent upon the learned Court below at the first instance to examine the applicant on oath and thereafter to arrive at the three prima facie requirements as provided under Section 193 of the Act, specially when there is claim of inheritance/succession by both the parties and the genuineness of the registered documents are also in question before taking any step under Section 194 of the Act.
12. Hence, this civil revision is allowed, the impugned order of the learned Court below is set aside and the matter in issue is remanded to it for fresh consideration and decision in accordance with the provision of law and the observation as made above expeditiously.
