B.L.Yadav - (1.) SRI Kant respondent no. 3 obtained a sale deed dated 26-10-72 from Ganga Parbat who was spiritual Guru recorded over the plot. On that basis he moved an application before the Consolidation Officer under section 12 of U. P. Consolidation of Holdings Act 1953 (for short Act) during the consolidation operation and obtained an order for mutation over khata no. 10 situate in village Jamin Bhanauli Pargana Natthoo Tehsil Ghosi, district Azamgarh, without impleading the petitioner Mahendra Parbat. The Consolidation Officer by his order dated 5-5-82 directed the mutation in the name of respondent no. 3 on the basis of a will (Annexure-2), impleading the petitioner, who was claiming to be a Chela of Sheo Nath parbat. The petitioner challenged the order dated 5-5-82 and moved a restoration application and substitution application stating that Sheo Nath Parbat died on 20-5-82 and the petitioner as Chela could not know about the proceedings, hence the ex-parte order was obtained by respondent no. 3 (Annexure-3). The restoration application is Annexure-4. That restoration application was rejected by order dated 9-9-87 (Annexure-5). Against that order a revision was filed before the Deputy Director of Consolidation, who by his order dated 28-6-88 dismissed the revision (Annexure-7). The present petition has been filed against these orders by the petitioner under Article 226 of the Constitution of India.
(2.) SRI Faujdar Rai appeared for the petitioner and SRI Sanjay Mishra appeared for respondent no. 3. There was a probate proceedings initiated by respondent no. 3 which was decided on 28-10-78 in favour of respondent on the basis of will dated 26-10-72. But later on the petitioner moved an application in those proceedings to recall that order as without serving any notice on him the order for probate has been obtained. After hearing the counsel for the parties the District Judge vide his order dated 25-3-83 allowed the application of petitioner and revoked the order dated 28-10-78. The probate proceedings, accordingly in respect of the land in dispute are still pending between the parties before the District Judge. Learned counsel for the petitioner urged that the petitioner's application has been allowed and the order dated 28-10-78 granting probate to respondent no. 3 has been revoked and those proceedings are pending, hence ex-parte order of the Consolidation Officer dated 5-5-82 could have been recalled or set aside by the consolidation officer. As the same was ex-parte and as the petitioner claiming to be a Chela of Sheo Nath Parbat who was Chela of Ganga Parbat, hence he was heir under section 171 of the UP ZA and LR Act for short ZA Act. The substitution application ought to have been allowed in his favour and the ex parte order ought to have been set aside.
(3.) SRI Sanjay Misra, appearing for respondent no. 3 on the other hand, urged that the petitioner being Chela cannot be treated to be a son who can be an heir under Section 171 of the ZA Act. It was also urged that Shiv Nath Parbat and Ganga Parbat were not the Guru of spiritual heir and the order of the Consolidation Officer dated 5-5-82 allowing the mutation in the name of respondent no. 3 on the basis of will was perfectly correct and just, hence there was no justification for interference. Having heard learned counsel for the parties that as the petitioner's application under section 363 of the Indian Succession Act, 1925 for the revocation of probate granted by the District Judge has been allowed and the order of probate dated 28-10-78 passed in Misc. Case No. 22/77 has been revoked. Those proceedings are pending. The validity of the will claimed by respondent no. 3 is also still sub-judice. Further the petitioner was claiming to be Chela of Shiv Nath Parbat who was held spiritual Guru. Sheo Nath Parbat himself was Chela of Ganga Parbat recorded tenure holder, who was alleged to have executed a will in favour of respondent no. 3. Consequently the petitioner claiming to be Chela becomes spiritual son and the Guru becomes spiritual father.;