SHIVAUTAR Vs. HARIOM

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed seeking the following reliefs:

(2.) It is submitted by the counsel for the petitioners that late Jyoti Prasad and late Ram Prasad filed a suit for declaration of title, partition and possession against respondents No. 3 to 5. The suit was numbered as 11-A/74. During the pendency of the suit, one of the plaintiff namely, Jyoti Prasad expired. Petitioners are the LRs of Jyoti Prasad and they were brought on record in place of late Jyoti Prasad. It is submitted that the Trial Court decreed the suit by judgment and decree dated 14.7.1987 and declared that the defendant/respondent No. 3 has no right or title in the suit and it was further declared that the plaintiff (Jyoti Prasad and Ram Prasad) and respondents No. 2 and 4 have half-half share in the suit property and are entitled for partition and possession of the same. Thereafter the execution proceedings were initiated. After the decree was passed, another plaintiff Ram Prasad also died and, accordingly, his legal heirs namely Harpyari and Hariom were brought on record. It is submitted that during the pendency of the execution proceedings, Harpyari also expired and, accordingly, respondent No. 6 Rama Shankar Gupta filed an application under Order 22 Rule 3 of CPC for substituting him as legal heirs of Harpyari. Rama Shankar Gupta staked his claim on the basis of a will purportedly registered by Harpyari on 2.8.2002. By referring to the statement of Rama Shankar Gupta which was recorded by the Executing Court, it is submitted that Rama Shankar Gupta in paragraph 2 of his cross-examination has admitted that Harpyari is survived by four sons. One son of Harpyari is residing in Gwalior whereas three other sons are residing in Morena. He also disclosed the names of sons of Harpyari. According to him, Vinod Kumar, Rajendra Kumar and Vijay Kumar are residing in Morena whereas Pramod is residing in Gwalior. It was accepted that two sons of Harpyari are advocates. He could not clarify as to why Harpyari was residing separately from her sons. He also admitted that he does not know that who had performed last rites of Harpyari. He further stated that copy of the Will was given to him by one Raju. However, he further clarified that Raju is also known as Rajendra who is the son of Harpyari. He further admitted that neither the Will was written in his presence nor the Will was got registered in his presence. It is submitted by the counsel for the petitioners that in spite of the fact that Harpyari was survived by four sons, the application filed by the respondent No. 6 Rama Shankar Gupta under Order 22 Rule 3 of CPC was allowed without issuing notice to any of the sons of Harpyari. It is further submitted that the Executing Court by the impugned order has allowed the application filed by the respondent No. 6 without assigning any reasons. The Executing Court has merely held that although the respondent No. 6 Rama Shankar Gupta was an Advocate of Harpyari but the parties are free to take action against him for committing professional misconduct by obtaining a Will from his client.

(3.) It is submitted that the impugned order is bad on account of that the same is un-reasoned as well as on account of that the application filed by the respondent No. 6 under Order 22 Rule 3 of CPC was allowed without giving notice to the interested parties.