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1985 SCC OnLine All 887 : AIR 1986 All 310

In the High Court of Allahabad

(BEFORE S.D. AGARWALA, J.)

Ramapati Tewari … Applicant;

Versus
Dharam Sukh Tewari and another … Opposite Parties.
Civil Revn. No. 368 of 1982
Decided on October 18, 1985
ORDER
1. These are two civil revisions filed under S. 115 of the Code of Civil Procedure.
The property in dispute initially belonged to one Ramlali Devi. She died on 21st March,
1979. In May, 1979 Sri Dharam Sukh Tewari filed an application under S. 192 of the
Indian Succession Act before the District Judge, Allahabad for issue of a direction that
the possession of the properties belonging to Ramlali Devi be delivered to Dharam
Sukh Tewari. This application was filed against Sri Ramapati Tewari and Sri Girja
Prasad Tewari. Sri Ramapati Tewari and Sri Girja Prasad Tewari are the sons of
Paramsukh Tewari who was thereal brother of the husband of Ram Lali Devi.
Dharamsukh Tewari is the real brother of Tribhuwan Nath, the husband of Ramlali
Devi. In essence the dispute is

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between the uncle Dharamsukh Tewari and his nephews Girja Prasad Tewari and
Ramapati Tewari in respect of the property of late Smt. Ramlali Devi. This application
under S. 192 of the Succession Act was allowed by the District Judge by judgment
dated 22nd May, 1982. Sri Ramapati Tewari filed Civil Revision No. 368 of 1982
challenging the said judgment. Sri Girja Prasad Tewari filed Civil Revision No. 400 of
1982 against the same judgment. Since both these revisions involved common
question of fact and law and, as such, they are being decided by a common judgment.

2. I have heard the learned counsel for the revisionists in both the revisions and the
learned counsel for the opposite party Dharam Sukh Tewari. In the application, which
was moved under S. 192 of the Indian Succession Act, it has been categorically
admitted by the opposite party that Ramapati Tewari and Girja Prasad Tewari had
been residing in the property in dispute much prior to the death of Smt. Ramlali Devi,
when admittedly, the revisionists were in possession of the property for quite a long
time, a heavy duty was cast upon the opposite party, who has moved the application
under S. 192 of the Succession Act, to establish before the Court as to under what
circumstance a summary remedy was being availed of in the case in question. In
normal circumstances, if a person is in possession of the property, he cannot be
evicted by means of adopting a summary remedy, as rights flow by virtue of long
possession. It is, consequently, incumbent upon the applicant under S. 192 of the
Succession Act to establish categorically and by positive evidence that he is availing of
the summary remedy for special reasons alleged by him.
3. Section 193 of the Indian Succession Act is quoted below:—
“193. The District Judge, to whom such application is made shall, in the first
place, examine the applicant on oath, and may make such further inquiry, if any, as
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he thinks necessary as to whether there is a sufficient ground for believing that the
party in possession or taking forcible means for seizing possession has no lawful
title, and that the applicant, or the person on whose behalf he applies, is really
entitled and is likely to be materially prejudiced if left to the ordinary remedy of a
suit, and that the application is made bona fide.”
4. Under the above S. 193, it is clear that the District Judge, has to make an
enquiry. Particularly on the question as to whether the applicant is really entitled and
is likely to be materially prejudiced if left to the ordinary remedy of a suit and that the
application is made bona fide. The finding in regard to the material prejudice as well
as bona fides are conditions precedent for the maintenance of an application under S.
192 of the Indian Succession Act.
5. On a reading of Part VII of the Succession Act, which includes S. 192, also, it is
apparent that summary remedy was provided by the Legislature only in special cases
where in case a person is left to the ordinary remedy of a suit, he would be materially
prejudiced. This summary remedy was not contemplated to be availed of in cases
where a person is in possession and there is a dispute of title in regard to the
property. In the normal course, the ordinary remedy of a suit provided by law for
evicting a person in possession cannot be bye passed. This can at times, result in
serious consequences. If a person is evicted by means of a summary procedure
without there being any ground for invoking the summary procedure, it would be in
violation of the intention of the Legislature in giving summary powers to the District
Judge.
6. In the instant case, I have gone through the judgment of the District Judge. The
District Judge has not recorded any finding as to whether any material prejudice will
be caused to the applicant if he invokes the ordinary remedy of a suit and as to
whether the application is bona fide. As stated above, both these conditions are
precedent to the exercise of power and in the absence of these findings, the judgment
of the District Judge cannot be sustained and is liable to be set aside.
7. Learned counsel for the revisionists has also contended that the findings
recorded by the District Judge, that the wills in their favour do not establish the title,
is vitiated in law. It is not necessary for me to go into the validity of the findings
recorded by the Court below. Prima facie, I find that if the will dated 11th March,
1979, is not prima facie valid then the

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revisionists can rely upon the will dated 20th Feb., 1979. The will dated 20th Feb.,
1979, has not been accepted by the Court below merely because there is a subsequent
will dated 11st March, 1979. The subsequent will dated 11th March, 1979, having not
been accepted as prima facie having been proved, the Court below should have gone
into the validity of the earlier will dated 20th Feb., 1979.

8. In any case, since I am remanding the case to the Court below, I think it
necessary in the interest of justice to set aside the findings recorded in regard to the
prima facie title of the parties. The Court below shall re-assess the evidence and again
determine the prima facie title of the parties.
9. In the result, both the revisions are allowed. The judgment of the first Additional
District Judge, Allahabad, dated 22nd May, 1982, is set aside. The case is remanded to
the Court below with a direction that the case shall be restored to their original
numbers and decided in accordance with law after affording an opportunity to the
parties to lead fresh evidence, if so required.
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10. The parties are directed to bear their own costs in both the revisions.
11. Revisions allowed.
———
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