- (1.) HEARD Shri Umesh Vats, learned counsel for the petitioner; Shri Rais Ahmad, learned counsel for the respondent nos. 2 and 3, and Shri Ram Milan Mishra for respondent no.4.
(2.) BY means of present writ petition, the petitioner has prayed for quashing the impugned order dated 23.10.2013 passed by the Prescribed Authority/Chief Judicial Magistrate, Jaunpur and the order dated 25.10.2008 passed by the President, Nagar Palika Parishad, Jaunpur by which the name of Smt. Maya Devi -respondent no.4 had been mutated over the house No.243 (old No.168) situated at Mohalla Mandi Naseeb Khan, Tehsil Sadar, District Jaunpur (hereinafter referred to as disputed house).
(3.) BRIEF facts giving rise to the writ petition are that the disputed house belongs to Shri Banke Lal -the father of the petitioner. The said disputed house is on the road side, having five shops on the ground floor towards the road side. The father of the petitioner died on 31.12.2006. The petitioner thereafter moved an application to the Prescribed Authority with a prayer that the name of the petitioner along with his brother namely Shri Shiv Kumar Bind may be recorded over the disputed property. The said application was registered as Mutation Case No.554 (2006 -07). Smt. Maya Devi -respondent no.4, who is the wife of petitioner's elder brother Shiv Kumar Bind, submitted an application before the Prescribed Authority for mutating her name over the disputed house on the basis of an alleged will (unregistered) dated 19.1.1996, which was executed by her father -in -law in her favour. The application moved by respondent no.4 was registered as Mutation Case No.587 (2007 -08). It also appears from the record that the petitioner had instituted the Original Suit No.389 of 2007 against his elder brother namely Shri Shiv Kumar Bind for a permanent injunction restraining his brother from interfering in his possession over the disputed house. The brother of the petitioner had filed a detailed written statement on 21.5.2007 (Annexure No.5 to the writ petition), denying his claim on the ground that the disputed house came into his share on the basis of family settlement and another house No.168 belongs to the petitioner and house No.244 is in joint possession. It appears that in his life time late Bake Lal had raised these three properties. In the written statement the brother of the petitioner had not averred or disclosed regarding the alleged will and the case has been set up on the basis of family settlement. Meanwhile Smt. Maya Devi had filed an application for impleadment, which was allowed by learned Trial Court on 13.10.2009 and she had been impleaded as defendant no.2 in the said suit. She filed detailed written statement on 3.4.2010 and first time she came with the case that the disputed property belongs to her on the basis of will dated 19.1.1996, which was executed by her late father -in -law in her favour. Thereafter she had also moved alongwith an affidavit before the Nagar Palika Parishad, Jaunpur for mutating her name over the disputed property. After knowing the petitioner had also filed detailed objections before the Nagar Palika Parishad and denied her claim on the basis of unregistered will. It appears that the President of Nagar Palika Parishad, Jaunpur had mutated her name over the property in dispute. Aggrieved with the said mutation the petitioner had filed an Appeal under Section 160 of the Municipalities Act, 1916 before the Chief Judicial Magistrate, Jaunpur, which was also rejected vide an order dated 23.10.2013. It has also been averred in the rejoinder affidavit that the brother of the petitioner had also instituted a Suit No.952/2009 for claiming his half share in the property bearing No.47 (old No.32).;