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Shiv Murat v. D.J. - WRIT - C No. 3583 of 1978 [2007] RD-AH 7836 (26 April 2007)


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(Judgment reserved on 09.01.2007)

(Judgment delivered on 26.04.2007)

Civil Misc. Writ Petition No.3583 of 1978

Shiv Murat Dass Vs. District Judge, Azamgarh and others

Hon'ble S.U. Khan, J.

At the time of arguments, no one appeared on behalf of the contesting respondents, hence only the arguments of the learned counsel for the petitioner were heard.

The point involved in this writ petition is as to whether under Hindu Law, there can be any dedication of property to a Samadhi i.e. tomb of a person or not. This writ petition arises out of consolidation proceedings under U.P. Consolidation of Holdings Act as it stood before its amendment by U.P. Act No.VIII of 1963. Prior to the amendment of 1963, consolidation courts authorities had no power to decide title disputes and in case title dispute was involved, then the matter was to be referred to the Civil Judge, who in turn was required to refer the matter to Arbitrator. By virtue of the aforesaid amendment, power to decide title dispute was conferred upon consolidation authorities. However, it was provided that the matters earlier referred to Civil Judge/Arbitrator should be decided in accordance with old provision.

In the basic year, i.e. when consolidation proceedings started agricultural land in dispute was recorded in the name of the petitioner. Objections were filed by Doodhnath Rai and others, Respondents No.4 to 8 claiming that they were exclusive Sirdars/Bhumidhars and for expunging the name of petitioner. Previously, before Zamindari Abolition land in dispute was recorded as ''Sirmalikan' and Shiv Murat Dass was recorded to be in possession as ''Sikmi'. It is also alleged in Paragraph No.7 of the writ petition that from 1353 Fasli to 1361 Fasli, petitioner was recorded as Sub-tenant (Sikmi)in the revenue records. Contesting respondents had filed objections on the ground that they were descendants of the Zamindar Ram Bodh Das and they had inherited the property. Petitioner, in his objections to the objections of contesting respondents, pleaded that Ram Bodh Das had become sanyasi (i.e. monk) and petitioner was his chela (i.e. disciple) and in the year 1942 Ram Bodh Das had executed a ''Will' (dated 13.03.1942), through which he created a trust for religious and charitable purpose by dedicating the property for religious and charitable purpose to Samadhi Baba Katbaru Das. It was further case of the petitioner that the shrine/Samadhi was worshipped by many people (Para 9 of the writ petition). The Arbitrator decided the dispute. Thereafter, objections were filed, matter was remanded and this process consumed a lot of time. During this course, issues were framed and reframed. Award of the Arbitrator dated 13.10.1971 was partly in favour of the petitioner and partly against him, hence he filed objections, which were rejected on 04.10.1972 by Civil Judge, Azamgarh. Against the said order, petitioner filed appeal. District Judge, Azamgarh dismissed the appeal on 15.12.1973. Through this writ petition, the award dated 13.10.1971, order rejecting the objections of the petitioner dated 04.10.1972 of Civil Judge, Azamgarh and order of the Appellate Court/District Judge, Azamgarh dated 15.12.1973 have been challenged.

Initially, against these orders, revision was filed, which was dismissed as not maintainable, thereafter this writ petition was filed.

The first argument of learned counsel for the petitioner is that while dismissing the petitioner's objections, the issues/points decided by the Arbitrator in favour of the petitioner, could not be reversed, as the same had not been challenged by contesting respondents. The findings of Arbitrator on all the issues/points were so interconnected that it was not possible to maintain some findings and reject the others on the basis of view taken by both the courts below. No findings of the arbitrator could be maintained. Such a course is always open under Order 41 Rule 33, C.P.C. Copy of the Appellate Court judgment dated 15.12.1973 is Annexure-6 to the writ petition. The Appellate Court in respect of the first objection clearly held that Arbitrator had repelled the contention of the petitioner, hence granting relief to him was merely a clerical error committed by the Arbitrator. Before Arbitrator, there were three cases (No.504, 505 and 506). Points involved were same, hence all points could be decided in the same manner.

As far as ''Will' is concerned, both the courts below clearly held that it was genuine. However, the courts below, particularly the Appellate Court held that under Hindu Law endowment could be in favour of idols and not Samadhi. The Appellate Court placed reliance upon the authority of the Supreme Court reported in Saraswathi Ammal and another v. Rajagopal Ammal,  AIR 1953 SC 491 wherein it was held that dedication in favour of Samadhi (tomb) is invalid. Similar view has been taken by Supreme Court in Sundara Kothanor Vs. Sellam Pillai 1969 (1) SCWR 669 (AIR SC Millennium Digest Vol.9 P.858 Col.2).

It is, therefore, held that there is absolutely no error in the legal findings of the courts below. The courts below rightly held that ''Will' on the basis of which petitioner claimed right was invalid.

Accordingly, there is no merit in the writ petition, hence it is dismissed.

Date: 26.04.2007



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