HARI NARAIN Vs. ASHA DEVI ALIAS ASHA RANI

JUDGEMENT

(1.) RAKESH Tiwari, J. The owner of the disputed property Ramswaroop filed SCC. Suit against Kailash Chandra for arrears of rent and ejectment.

(2.) HE died issueless on 16-6-2003 during the pendency of the suit. The petitioner moved an application for his substitution as legal heir claiming himself to be legal heir of Ramswaroop. The respondents denied the title of the petitioner but admitted him to be heir of Ramswaroop. The respondents No. 1, 2 and 3 also filed the substitution application on the basis of an unregistered will said to be executed by Ramswaroop on 19-12- 2001. The Civil Judge (Senior Division) Muzaffar Nagar allowed the substitution application of respondents No. 1 to 3 and dismissed both the substitution application as well as application No. 45c of the petitioner vide order dated 14-2-2007. Aggrieved the petitioner preferred revision No. 5 of 2007 before the District Judge Muzaffarnagar on the ground that the question of title can be raised in a regular suit and not in a suit for rent and ejectment and title cannot be decided in suit No. 7 of 1993, which was regarding the tenancy. By the impugned order dated 4-4-2007 the District Judge Muzaffarnagar dismissed the revision of the petitioner holding as under : "in this case the learned Counsel for the respondents has also relied upon a case Dewan Singh & Ors. v. Bala Singh & Anr. 2004 (57) ALR 97 in which the Hon'ble High Court has held that the issue of heirship and the declaration of right can be reagitated in a separate suit and the order passed under Order XXII, Rule 5, C. P. C. cannot be equated to a decision and as such determination is limited for the purpose of carrying on the suit and cannot have the effect of conferring any right to heirship or right to property. The O. P. Smt. Asa Devi is in possession and the revisionist is living at Jaipur and the O. P. has no. collusion with the tenant. The Court has not committed any illegality or jurisdictional error in allowing the substitution application of Smt. Asa Rani and others. The learned Counsel for the O. Ps. also relied upon another case Mrs. Annupam Bruthi & Ors. v. Smt. Rajen Bal & Ors. , AIR 1988 SC 2041, in which the Hon'ble Supreme Court has held that if the substitution application has been disposed of, the order cannot be recalled at the instance of widow on the ground that the deceased had left a will. Thus, in view of the law laid down by the Hon'ble Apex Court, the impugned order by which the substitution application has been allowed, cannot be set aside. So far as the application paper No. 465 C of the revisionist is concerned whereby it was prayed that the proceedings of O. S. No. 352 of 2006 be stayed, the revisionist has filed O. S. No. 352 of 2005, Hari Narain v. Smt. Asa Devi, regarding the cancellation of fake will which is alleged to have been executed by deceased Ramswarup in the name of Smt. Asa Devi in the above suit, it would be decided whether revisionist Hari Narain is the legal heir and owner of the property of Ramswarup. In that suit only the right and title of the parties shall be determined. The present suit is pertaining to the year 1993 and if Smt. Asa Devi and others are permitted to continue with the suit and if the case is decided in her favour, then on that ground she cannot be held owner of the property. It is only in the O. S. No. 352 of 2006 the right and title of the parties shall be determined. Considering the above facts, the learned trial Court has not committed any illegality in rejecting the application 465c for staying the proceedings of the suit. The order does not suffer from any illegality or jurisdictional error and the same is liable to be dismissed, being devoid of any merit. ORDEr The revision is hereby dismissed. Costs easy. Sd/- (R. D. Nimesh) District Judge, Muzaffarnagar. Judgment signed, dated and pronounced in open Court today. Sd/- (R. D. Nimesh) District Judge, Muzaffarnagar. Dated : 4-4-2007"