KURBAN ANSARI Vs. NURESHA BIBI

JUDGEMENT

(1.) This Civil Revision has been filed under Sec. 115 of the CPC being aggrieved by the order dtd. 26/2/2021 passed by the Civil Judge, Class-I, Balrampur at Ramanujganj whereby, with regard to a direction of summary enquiry in Second Appeal No.335/2010 (Shahmir Ansari Vs. Smt Savitri Devi & Others), a report was submitted by the trial Court that Non-Applicant No.1-Nuresha Bibi is the legal representative of deceased/Plaintiff-Shahmir Ansari.

(2.) The facts of the case in nut-shell are that Late Shahmir Ansari filed a Civil Suit bearing No.20-A/2006 for declaration of title and permanent injunction against Non-Applicants No.2 & 3 in which, the said Non-Applicants have also filed a counter claim and asserted that they are the bona fide purchasers of the suit property by way of a registered sale deed executed by the deceased/Plaintiff Shahmir Ansari on 30/3/1979. The trial Court has, vide its judgment and decree dtd. 28/7/2007, dismissed the counter claim and the suit was allowed and decreed in favour of Late Shahmir Ansari. NonApplicants No.2 & 3, the purchasers had challenged the said decree in an Appeal i.e. Civil Appeal No.8-A/2007 before the Additional District Judge (FTC), Ramanujganj which has been allowed by judgment and decree dtd. 17/8/2010 and against the same, Late Shahmir Ansari has preferred Second Appeal bearing No.335/2010. During the pendency of the said Appeal, Shahmir Ansari died on 13/6/2013 and thereafter, the Applicants moved an application under Order 22 Rule 3 r/w Sec. 151 CPC marked as IA No.02/2018 and another application under Order 22 Rule 9 r/w Sec. 151 CPC marked as IA No.03/2018 as also an application under Sec. 5 of the Limitation Act on 30/4/2018. During the pendency of such applications, Non-Applicant No.1 had also filed an application under Order 1 Rule 10 CPC wherein, she has alleged that she is the daughter of Late Shahmir Ansari, therefore, she may be allowed to be impleaded as a party in the said Second Appeal. On 1/2/2021, this Court had passed an order in Second Appeal No.335/2010 and directed the trial Court i.e. Civil Judge, Class-1, Balrampur at Ramanujganj to make an enquiry under Order 22 Rule 5 CPC. In pursuance of the said direction, the concerned Court has submitted its report on 26/2/2021 and thereafter, on 8/3/2021, in the said Appeal, after perusing the report submitted by the trial Court, the application (IA No.09) preferred by Non-Applicant No.1-Nuresha Bibi claiming to be the legal representative of the deceased/Plaintiff was allowed and it was directed that her name be brought on record and further, liberty was also reserved in favour of the Appellants therein, who are also claiming to be the legal representatives of the deceased/Appellant being his nephews, to challenge the said order in accordance with the decision rendered by the Supreme Court in the case of Mangluram Dewangan vs. Surendra Singh and Ors reported in (2011) 12 SCC 773. Hence, this Revision.

(3.) Shri Agrawal, learned Counsel for the Applicants submits that in Mangluram Dewangan vs. Surendra Singh and Ors (supra), it has been categorically held that an application under Order 22 Rule 3 CPC is by a non-party requesting the Court to make him a party as the legal representatives of the deceased Plaintiff and when such an application by a nor-party is dismissed after a determination of the question whether he is a legal representative of the deceased Plaintiff, there is no adjudication determining the rights of the parties to the suit with regard to all or any of the matters in controversy in the suit. It is determination of a collateral issue as to whether the Applicant, who is not party, should be permitted to come on record as the legal representative of the deceased not amounts to a decree appealable under Sec. 96 of CPC nor an order appealable under Sec. 104 and Order 43 Rule 1 CPC and the remedy of the Applicant under Order 22 Rule 3 CPC is to file a Revision. He further submits that in the Mohammedan law, the daughter is not having an absolute share of her father and in the summary enquiry, a wrong finding has been recorded by the Court below that Non-Applicant No.1-Nuresha Bibi is the daughter of Late Shahmir Ansari. He further submits that as per Muslim law, the Applicants are also representatives of Late Shahmir Ansari for the suit property and prays to allow the Revision and set aside the report dtd. 26/2/2021 given by the Civil Judge, Class-1, Balrampur at Ramanujganj. Alternatively he submits that the said finding is not operating res judicata as the controversy and the rivalry between the Applicants herein and NonApplicant No.1-Nuresha Bibi were decided in a summary enquiry, therefore, the Applicants may be permitted to challenge the said finding and establish their title by way of filing a fresh suit or availing any other remedies available to them in accordance with law.