Harpal Singh v. Arjun Singh — 1988 DIGILAW 410 (ALL)

JUDGMENT Ram Lal, M(J.). - This is a revision under Section 219, U.P. Land Revenue Act filed by Harpal Singh and others against the order of the learned Additional Commissioner, Moradabad, confirming the order of the SDO Nagina, district Bijnor, in a mutation case. 2. Briefly, stated the facts of the case are that the opposite parties claimed mutation on the basis of a sale-deed dated 29.6.81 alleged to have been executed by Mst. Champa Dei alias Champiya. On behalf of opposite-party Arjun Singh, minor, his father Devendra Singh applied for mutation. The revisionists Harpal Singh and others filed an objection on 24.10.81 denying the execution of any sale-deed in favour of the opposite party Arjun Singh by Mst. Champiya during her life time, that by impersonating some other lady as Mst. Champiya got a registered sale-deed in his favour in collusion with the witnesses. In fact Mst. Champiya had executed a will in their favour and on that basis they are her legal heirs. They also denied possession of the opposite parties. Further it was stated that the sale-deed was fictitious and a very small consideration has been shown in that. The trial court after recording evidence of both the parties mutated the land in dispute in favour of the revisionists on the basis of unregistered will dated 15.6.7^. Thereafter, aggrieved with the said order the opposite parties Arjun Singh minor preferred an appeal which was allowed in his favour on 26.3.86 setting aside the order of the trial court. Subsequently, the revisionists Harpal Singh and others preferred a revision which was dismissed by the learned Additional Commissioner Moradabad, giving rise to the present revision. 3. I have heard the learned counsel on both sides and perused the record. 4. It has been the ground on behalf of the revisionists that the appellate court and the revisional court both have committed mistake by believing the entry in the extract of death and birth register wherein the date of the death of Mst. Champiya is shown as 28.7.81. Further it was submitted that both the marginal witnesses of the sale deed dated 29.6.81 are Lakhpals, Babu Ram and Taukir Ahmad and belonged to different circles. They were never posted in the villages where the land in dispute is situate. Therefore, their testimony should not have been believed by the lower courts. Champiya is shown as 28.7.81. Further it was submitted that both the marginal witnesses of the sale deed dated 29.6.81 are Lakhpals, Babu Ram and Taukir Ahmad and belonged to different circles. They were never posted in the villages where the land in dispute is situate. Therefore, their testimony should not have been believed by the lower courts. Further it has been contended that the thumb-impression of Mst. Champiya has been compared by the revisional court itself while it was not obligatory on the part of the court to,have done so. In fact, it was the duty of the opposite parties whose claim is based on the sale-deed to have got the thumb-impression of Mst. Champiya compared with the sale-deed dated 5.5.77, executed in favour of Pir Bux and Alla Bux, sons of llahi Bux, village Sadipur, Tahsil Nagina. Lastly it was argued that in the extract of death and both register in column 2 the name of the deceased is shown as Mst. Champia Dei wife of Babu Singh alias Raghunath Singh. The informant in this case is Rameshwar Dayal. The death is shown at 11 a.m. on 28.7.81 in column number 1. According to him it was necessary for the opposite parties to have established that Babu Singh and Raghunath Singh were one and the same person and unless this could be shown by him the lower courts were not justified to have concluded that she was the same lady who executed the sale deed in favour of the opposite party Arjun Singh. The opposite parties have no where contended that Babu Singh and Raghunath Singh were one and the same persons. 5. Learned counsel for the opposite parties has urged that the sale deed executed by Mst. Champiya was registered document which has been proved legally by the marginal witnesses. The death certificate filed by him cannot be thrown out easily. It has beer further submitted that the Will of the revisionists was not proved legally and is doubtful so no rights and title can pass to them. The date of death as contended by the revisionists has hot been proved legal. 6. I have considered the arguments advanced by both the parties. The sale-deed is dated 29.6.81. The opposite parties claimed that Mst. Champiya died on 28.7.81 at Hardwar. In support of his case the witnesses Babu Ram. The date of death as contended by the revisionists has hot been proved legal. 6. I have considered the arguments advanced by both the parties. The sale-deed is dated 29.6.81. The opposite parties claimed that Mst. Champiya died on 28.7.81 at Hardwar. In support of his case the witnesses Babu Ram. Taukir Ahmad and Devendra Singh, guardian of the O.P. Arjun Singh and Jaswant Singh, were produced in oral evidence. Besides two sale deeds and extract of death land birth register have been filed. On behalf of the revisionists an un-registered Will dated 15.6.76 has been filed. In oral evidence the scribe Ram Chandra attesting witness Bhure Khan and one more witness of Raghunath Singh had been produced. They have also produced a certificate dated 14.3.82 of Dr. S.K. Gupta of Netaur, showing therein that Mst. Champiya died on 26.6.81. Munna Singh, Pradhan of village Sadipur where the land in dispute is situate, has also issued a certificate on the point of death of Mst. Champiya. 7. The main point for consideration in this case is as to when Mst. Champiya, the original tenure-holder actually died. The revisionist's claim is on the basis of a Will alleged to have been executed by Mst. Champiya on 15.6.76 in their favour while the opposite parties claim is on the basis of a registered sale deed dated 29.6.81. Further, the identity of Mst. Champiya is to be established in order to show that the sale deed was legally executed by her in favour of the opposite parties. On the point of death, on behalf of the revisionists two certificates have been filed. The trial court has believed the Will while the appellate and revisional courts have disbelieved the Will. Dr. S.K. Gupta is a private practitioner of Netaur, who is still alive. Similarly, Munna Singh, Pradhan is also alive. Both the certificates have not been proved by the revisionists. Therefore, these certificates are inadmissible in evidence. Raghunath Singh, father of the revisionists stated in his statement that Mst. Champiya died about 15-16 months back. He denied the execution of the sale-deed. He stated that Mst. Champiya died before the date of execution of the sale deed. No other person has been examined on the point of death. Therefore the evidence adduced by the revisionists is not worth placing reliance. In view of the facts and circumstances mentioned above. Champiya died about 15-16 months back. He denied the execution of the sale-deed. He stated that Mst. Champiya died before the date of execution of the sale deed. No other person has been examined on the point of death. Therefore the evidence adduced by the revisionists is not worth placing reliance. In view of the facts and circumstances mentioned above. The contention of the revisionists that Mst. Champiya died on 26.6.81 falls to the ground. 8. To prove the Will, scribe Ram Chandra and attesting witnesses Bhure Khan had been produced. The other attesting witness has not been produced by the revisionists for the reasons best known to them. Ram Chandra is only the scribe, while Bhure Khan is the attesting witness. In view of the fact that the revisionists have failed to establish that Mst. Champiya died on 26.6.81 as has been discussed above, the un-registered Will of the revisionists cannot be believed. The finding of fact recorded by the Lower Courts should prevail. 9. As regards the contention of the opposite parties the sale deed is a registered one and extract of death and birth register had been filed at the appellate stage, which shows that the Vendor Mst. Champiya died on 28.7.81, While the sale deed is of a prior date. The sale deed has been duly proved by the marginal witnesses Babu Ram and Taukir Ahmad. They are Lekhpals of different circles but merely on this score their testimony cannot be disbelieved. The revisionists could neither allege an enmity or ill will against those two marginal witnesses nor the same could be proved from the evidence on record. In the examination in chief Bdbu Ram has stated clearly that village Sadipur falls within his circle. On this point he was not cross-examined by the revisionists. 10. In both the sale deeds, extract of Khatauni on record, the name of the original tenure-holder is shown as Mst. Champiya widow of Raghunath. No where the name of Babu Singh has been shown as alias Raghunath Singh. The revisionist has raised the plea that Babu Singh and Raghunath Singh were not one and the same persons. This plea had been taken for the first time in this court. It was not raised before either at the stage of appeal or revision. No where the name of Babu Singh has been shown as alias Raghunath Singh. The revisionist has raised the plea that Babu Singh and Raghunath Singh were not one and the same persons. This plea had been taken for the first time in this court. It was not raised before either at the stage of appeal or revision. The revisionist who has also claimed mutation on the basis of the Will could not show that Babu Singh and Raghunath Singh were two persons and not one. Therefore, in the absence of any evidence on this score, the plea of the revisionists cannot be believed. Although it has been alleged that real Champa Dei has not executed the sale deed but they could not prove that the sale deed was obtained by impersonating another lady. On a mere allegation it cannot be accepted that the sale deed was executed by a lady other than Mst. Champiya. As records, comparison of the thumb impression of Mst. Champiya by the revisional courts itself, it may be stated that the every judicial courts has got power to compare document itself if it thinks it is expedient in the interest of justice. The learned counsel for the revisionists could not show any case law that the revisional court by making comparison of the thumb-impression of the execution of the sale deed has committed illegality. Therefore, the sale deed when it has been duly proved by the opposite party cannot be disbelieved in facts and the circumstances of the case mentioned above. 11. The appellate court after considering the evidence of both the parties came to the conclusion that the will was unbelieveable and the sale deed which is registered one, is believable. The judgment is well respond. No perversity is shown by the learned counsel for the revisionists. The learned Addl. Commissioner has rightly upheld the order of the appellate court and rejected the revision. I do not find any reason to disagree with the findings recorded by the lower courts. I do not find any force in the arguments of the revisionists for the reasons stated above. The revision is liable to be dismissed. Accordingly, the revision is dismissed.