MANDA Vs. JANKIBAI WD O SUNDERLAL DUBEY

JUDGEMENT

(1.) The petitioner in this petition under Article 226 and 227 of constitution of India is original defendant. The present respondents have filed a suit before civil Judge, Senior Division, Wardha vide r. C. S. 1/1998 for declaration and cancellation of succession certificate. The immovable properties in relation to which declaration is sought is located in Wardha District while the petitioner obtained succession certificate from court another district i. e. Chandrapur. One of the declarations prayed for by present respondents is that the succession certificate is obtained by fraud. The present petitioner who is defendant, challenged the territorial jurisdiction and contended that suit of such a nature ought to have been instituted at chandrapur only. Joint Civil Judge. Senior division, Wardha, upheld this objection on 12/3/2001 and ordered return of the plaint to present respondents for presentation to chandrapur court. The respondents challenged this order by filing Misc Civil Appeal 23/2001 and on 5/8/2002 the Additional District Judge, wardha. held that the Civil Court at Wardha had jurisdiction to entertain the suit and return of plaint was not proper. It is this order which has been challenged in present petition.

(2.) I have heard advocate Sohoni for petitioner and Advocate Wagh for the respondents. Considering the controversy, it has been heard finally at the admission stage. Hence, Rule. Rule made returnable forthwith and heard finally by consent.

(3.) Advocate Sohoni appearing for petitioner states that one Rambharose Dubey, resident of Chandrapur executed a Will on 5/1/1995 and after his expiry on 6/2/1995 at seloo town in Wardha district, the Petitioners filed application for grant of succession certificate under Section 372 of Indian succession Act, 1925, on 1/1/1996 vide succession Case 1 of 1996 before Civil Judge senior Division, Chandrapur. The said court issued public notice, held inquiry and as no objections were received from anybody, it granted succession certificate in favour of petitioner vide order dated 2/5/1997. It is his contention that there was no fraud in the matter and if respondents want to challenge said succession certificate, they have to approach chandrapur court. The suit according to him was not cognizable by Wardha court and the order passed by trial court needs to be maintained. He has relied upon the judgment between Dukan Nand Lal Vs. Abdul Hafiz reported at A. I. R. 1960 Jammu and Kashmir 76 and between Sampat Lal Vs. Kaluram brijmohan reported at A. I. R. 1940 Patna 444. He contends that the Chandrapur court alone has jurisdiction to take cognizance of alleged fraud.