SHANTI Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) Inspite of sufficient service no one has appeared on behalf of contesting Respondent.

(2.) Heard learned Counsel for the Petitioner. Late Bhookan Singh husband of the Petitioner instituted a suit being O.S. No. 211 of 1987 for permanent prohibitory injunction against the Defendant Respondent Nos. 3 to 7 Smt. Vidya Devi and others. The Plaintiff died during the pendency of the suit. The Petitioner filed substitution application seeking her substitution at the place of her husband on the basis of a Will dated 19.10.1983. The substitution application was filed on 16.1.1991. The Defendants contended that the original Plaintiff had died on 20/21 September, 1990 and not on 21.10.1990 as alleged by the Petitioner in her substitution application. It was also contended by the Defendants that over the agricultural land left behind by the original Plaintiff, after his death the names of his sons had been mutated in the revenue record hence Petitioner being wife could not seek substitution. The genuineness of the Will was also denied. The trial Court/1st Additional Munsif, Kasganj which was in district Etah at that time rejected the substitution application through order dated 5.9.1994. The trial Court held that the date of death of the original Plaintiff was not conclusively established as death certificate issued by some competent officer had not been filed by the Petitioner. Photo-stat copy of the death certificate issued by some officer of Section N. Medical College, Agra filed by the Petitioner regarding date of death was considered to be inadmissible in evidence. The trial Court also noted the. argument that Supervisor Kanoongo through order dated 3.10.1990 had entered the names of sons pf the deceased Plaintiff over the agricultural land left behind by him. The trial Court held that no decision could be given as to whether the application was within time or not as correct date of death was not established. The second reason given was that the names of all the heirs were not mentioned in the substitution application. Against the order of the trial Court Petitioner filed civil revision No. 93 of 1994. Additional District Judge/Special Judge (E.C. Act), Etah dismissed the revision on 9.12.1997 hence this writ petition.

(3.) Strangely enough the Revisional Court held that the order of the trial Court was illegal however, it dismissed the revision on the ground that instead of revision, misc. appeal under Order 43 Rule 1(k) Code of Civil Procedure ought to have been filed. The Revisional Court held that death occurred on 3.10.1990 (neither of the parties had asserted that death occurred on the said date).