ORDER M.P. Singh, J. - The present writ petition is directed against the order dated 7-7-1978 passed by the Dy. Director of Consolidation. 2. The dispute relates to Khatas Nos. 17/1 and 17/2 of village Rasoolpur. The basic year entry was in favour of Smt. Shrimani Devi, mother of opposite parties Nos. 4, 5 and 6. She was recorded as Bhumidhar. The petitioners were recorded over plots Nos. 40, 68, 179 and 190 in Zaman-9. 3. Admittedly some of the disputed plots were fixed rate tenancy and others were occupancy tenancy of one Ram Kishore. He died leaving behind Smt. Sidheshwara Devi as his widow. She died in May, 1950. Her daughter Smt. Jamuna Devi was already dead by that time. At the time of death of Smt. Sidheshwara Devi, the daughter of Smt. Jamuna Devi namely Smt. Shrimani Deviwas alive. She died during the pendency of the case before the Consolidation Officer. 4. An objection under S. 9-A(2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as 'the Act') wasfiled by the petitioners claiming themselves to be the Sirdars on the ground that they were sub- tenant of the land in dispute from the time to their father and they became Adhivasi under S. 20(a) of the U.P. Zamindari Abolition and Land Reforms Act. They being recorded as occupant in Khasra and Khatauni for the year 1356 Fasli became Adhivasi and Sirdars under S. 20(b). On account of being in continuous possession from the year 1235 Fasli became Adhivasi and thereafter Sirdars After acquiring Sirdari rights no steps were taken for evicting them within the period of limitation. Benefit of S. 180(2) of the U.P. Tenancy Act was also claimed. 5. The case was contested by Smt. Shrimani Devi on the ground that one Ram Kishore was the chief tenant of the property in dispute as fixed rate tenant and occupancy tenant After his death his widow Snit Sidheshwara Devi became the heir. On 1441950 who had executed a Will in her (Smt. Shrimani Devi) favour after depositing 10 times of the occupancy rent. After the death of Smt. Sidheshwari Devi she became a Bhumidhar in possession. It was stated that she was living separately from her husband and claimed herself to be a disabled person under S. 157 of the U.P. Zamindari Abolition and Land Reforms Act. After the death of Smt. Sidheshwari Devi she became a Bhumidhar in possession. It was stated that she was living separately from her husband and claimed herself to be a disabled person under S. 157 of the U.P. Zamindari Abolition and Land Reforms Act. The title and possession of the petitioners was also denied by her. 6. Before the Consolidation Officer the petitioners raised objections that Smt. Sidheshwari Devi could not execute the Will with regard to the occupancy tenancy as there was a legal bar but without recording any finding on this question the Consolidation Officer rejected the objection on the ground that the petitioners have failed to establish the claim of their continuous possession. The objection was dismissed. 7. Against this order of the Consolidation Officer an appeal was filed by the petitioners which was allowed on 16-2-1966. The name of Smt. Shrimani Devi was ordered to be expunged from Khata No. 17 and in her place the names of the petitioners were ordered to be recorded as Sirdars. The opposite parties filed a revision before the Dy. Director of Consolidation which was allowed on 23-2-1968 on a highly technical ground that the appeal was decided by the Assistant Settlement Officer Consolidation to whom it had not been transferred by the Settlement Officer Consolidation in accordance with the provisions of R. 65-A. The case was remanded to the Settlement Officer Consolidation for decision in accordance with law. 8. After the remand the settlement Officer Consolidation allowed the appeal of the petitioners in part on 3-7-1969 and held the petitioners to be only Asami. Both the parties filed revisions. The Dy. Director of Consolidation vide his order dated 7-7-1978 allowed the revision of the contesting opposite parties but the petitioners' revision was dismissed. Thus the entire objection filed by the petitioners stood rejected. The present writ petition is directed against this order dated 7-7-1978. 9. Heard Sri Sankatha Rai, learned counsel for the petitioners and Sri R.N. Singh, learned counsel for the respondents, at great length. 10. The learned counsel for the petitioners has urged the following points : (1) The Dy. Director of Consolidation while reversing the finding of the Settlement Officer Consolidation on the question of possession has failed to consider the oral as well as documentary evidence. (2) The finding of the Dy. 10. The learned counsel for the petitioners has urged the following points : (1) The Dy. Director of Consolidation while reversing the finding of the Settlement Officer Consolidation on the question of possession has failed to consider the oral as well as documentary evidence. (2) The finding of the Dy. Director of Consolidation that the registered patta, and Kabuliyat dated 17-4-1981, executed by Smt. Sidheshwari Devi in favour of Ram Bachan Singh, father of the petitioners, was returned back and the Patta was not acted upon, was based on no evidence on record. (3) Smt. Sidheshwari Devi has never deposited 10 times rent under U.P. Agricultural Tenants (Acquisition of Privilege) Act, 1949 in her lifetime and as such she has no right to execute any Will in respect of fixed rate tenancy on 13-1-1950. (4) On 13-1-1950 or at the time of her death in May, 1950 Smt. Sidheshwari Devi was not entitled to execute the Will in respect of occupancy tenancy which was forbidden by law. (5) Smt. Sidheshwari Devi being the limited heir of Ram Kishor has no right to transfer the occupancy tenancy on 15-4-1950. It is prohibited under the Hindu Law which was applicable on that date. (6) Smt. Shrimani Devi being daughter's daughter was not the heir of Smt. Sidheshwari under S. 35 of the U.P. Tenancy Act. (7) The petitioners being sub-tenants on the basis of registered lease and Kabuliyat dated 17-4-1941 have become Adhivasi and Sirdars under S. 20(a) of the U.P. Zamindari Abolition and Land Reforms Act. (8) The petitioners have become Adhivasi and Sirdars under S. 20(b) of the U.P. Zamindari Abolition & Land Reforms Act being recorded occupants in 1356F. (9) The petitioners have become Sirdars by adverse possession under Sections 180(2) and 210 of the U.P. Zainindari Abolition and Land Reforms Act. (10) The petitioners could not be held to be Asami over the land in dispute. 11. Along with the writ petition a personal affidavit of Sri Tribhuwan Singh, Advocate has been filed stating that all these points were argued before the Consolidation Officer, the Settlement Officer Consolidation and the Dy. Director of Consolidation. No affidavit of any advocate has been filed on behalf of the opposite parties to controvert this fact. Thus it is admitted that these points were urged before the consolidation authorities but all the points have not been considered. 12. Director of Consolidation. No affidavit of any advocate has been filed on behalf of the opposite parties to controvert this fact. Thus it is admitted that these points were urged before the consolidation authorities but all the points have not been considered. 12. Coming to the first point of possession, it was contended by the learned counsel for the petitioners that the Dy. Director of Consolidation has set aside the finding of the settlement Officer Consolidation without considering the oral evidence led by the petitioners. On 17-4-1941 a patta was executed by Smt. Sidheshwari Devi in favour of Ram Bachan Singh, father of the petitioners, who executed a Kabuliyat on the same day. The Khasra from 1355 to 1359 Fasli and 1361 to 1368 Fasli shows that the name of petitioners' father was recorded in possession. This was an indication that the Patta was acted upon. The preliminary order of attachment was passed under S. 145 Cr. P.C. on 21-9-1951, on the application of one Purshottam Dubey. On 31-10-52 the final order was passed in his favour. The possession was delivered to Purshottam Pandey on 12-10-1953. 13. The petitioners filed suit No. 368 of 1953 against Purshottam Dubey which was decreed on 22-3-1955 and the possession was obtained by them through the Court on 24-3-1955. The appeal of Purshottam Dubey being allowed, the possession was restored to him on 28-10-1959 under S. 144 Cr. P.C. and then subsequently again the petitioners got the possession on 23-5-1960 when the Revenue court returned the finding to the Civil Court holding that the petitioners were Asami. 14. While allowing the appeal on 16-2-1966 the Assistant Settlement Officer Consolidation after looking into the entire evidence on record had recorded the finding of possession in favour of the petitioners but after the order of remand when the case went to another Settlement Officer Consolidation, he did not refer to all the evidence and particularly the oral evidence. He granted Asami right to the petitioners only on the ground that the petitioners had entered into possession on the basis of a lease executed in favour of the petitioner's father in 1941. The Dy. Director of Consolidation allowed the revision No. 1341 of 1969 filed by the opposite parties Brij Pal and others. He granted Asami right to the petitioners only on the ground that the petitioners had entered into possession on the basis of a lease executed in favour of the petitioner's father in 1941. The Dy. Director of Consolidation allowed the revision No. 1341 of 1969 filed by the opposite parties Brij Pal and others. While doing so it was incumbent upon him to refer to all the oral and documentary evidence on the question of possession while recording its own findings. 15. In the case of Paras Nath v. Waijiul Hasan 1974 Unreported Revenue Cases 615. it has been held that it is well settled that final court of fact must consider the oral and .documentary evidence before giving the final verdict on the question of fact. Failure on this point renders the order invalid. The same view has been taken in another case of Ram Kishan v. Dy. Director of Consolidation, 1974 Unreported Revenue Cases 655. 16. In the case of Soran Singh v. State of U.P., 1987 Rev. Dec. 45 (BR). it has been held by this Court that while setting aside the order of the Settlement Officer Consolidation Dy. Director of Consolidation has to deal with the reasonings given by the authorities below and to consider the entire evidence on record. 17. In the case of Tribhuwan Nath v. Dy. Director of Consolidation, 1984 Rev. Dec. 137 . Brother K.N. Mishra had an occasion to consider similar points and held : "The order, being not an order of affirmance, deserves to be quashed on the ground that while recording a contrary finding, the Dy. Director of Consolidation has not taken care to consider the evidence on record as well as the findings recorded by two courts below. When the Dy. Director of Consolidation arrived at a different finding while dealing with the revision, he should have expressed in his order the reasons on which he wants to differ with the findings recorded by the two courts below." 18. The same view has been taken in another decision of this Court reported in 1979 Rev. Dec. 63 : 1979 All U 103 Ram Singh v. Santosh Kumar Singh. 19. In the case reported in AIR 1976 All 91 Nanha v. Dy. The same view has been taken in another decision of this Court reported in 1979 Rev. Dec. 63 : 1979 All U 103 Ram Singh v. Santosh Kumar Singh. 19. In the case reported in AIR 1976 All 91 Nanha v. Dy. Director of Consolidation, a Full Bench of this Court has taken the view "If it appears that the court of fact has in substance based its finding on no evidence or that its finding is perverse in the sense that no reasonable person could possibly come to that conclusion or that it erroneously ignores a vital plea or material evidence which affects the result, a manifest error of law apparent on the face of the record leading to failure of justice can be said to be established. But if a court or a Tribunal bases its finding on a consideration of all relevant evidence, but an appellate or a revisional court or tribunal while affirming the finding does not refer to some material or some contrary evidence in its order it cannot be said that it has been ignored from consideration so as to entitle the High Court to interfere under Article 226 of the Constitution." In the present case the petitioners have filed the statements of all the witnesses and I have been taken through the entire evidence of both the parties. I am satisfied that the Dy. Director of Consolidation has not taken care to look into the entire oral evidence on record, which is definitely material, he has committed serious mistake in allowing the revision of the opposite party. 20. The entries in Khasra extracts are p(A piece of evidence to establish possession. They are, however, not conclusive. They have o he scrutinised, examined and tested. What eight should be attached to a particular case shall depend on their authenticity and correctness. Oral evidence is vital to establish possession. It has the feature of being tested by cross examination. It may be believed o disbelieved but an authority or a court empowered to decide question of fact cannot ignore it. The Dy. Director of Consolidation in ignoring the oral evidence, particularly when he was reversing the findings, committed an error of law. The Dy. Director of Consolidation being the last Court of fact has to record cogent reasons for not accepting the case of the petitioners. 21. The Dy. Director of Consolidation in ignoring the oral evidence, particularly when he was reversing the findings, committed an error of law. The Dy. Director of Consolidation being the last Court of fact has to record cogent reasons for not accepting the case of the petitioners. 21. The contention of the learned counsel for the opposite party is that in case the finding of the Dy. Director of Consolidation is based on some evidence, then the High Court cannot interfere unless it finds that the oral evidence which was ignored was so material and important that in case if this was taken into consideration it might have the effect of reversing the finding. His entire contention is based on the statement of petitioner Ram Murat. It is said that since he has made admission on the vital point of possession, there was no necessity of going to any other evidence. His only attack is on the application under S. 232 of the U.P. Zamindari Abolition & Land Reforms Act which was moved by the petitioners. According to him moving of this application was conclusive on the point that they were not in possession when they moved this application. 22. The learned counsel for the respondents relied upon a decision reported in AIR 1971 SC 1537 , Zora Singh v. J. M. Tandon wherein it has been held "The principle, that the decision of a tribunal would he vitiated if some of the reasons relied on by it for its conclusion turn out to be extraneous or otherwise unsustainable, applies to the cases in which the conclusion is arrived at on subjective satisfaction. For, in such cases it would be difficult for superior court to find out which of the reasons brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, if it is found that there was legal evidence before the tribunal, even if some of it was irrelevant, a . superior court would not interfere if the findings can be sustained on the rest of the evidence. But in a case where the conclusion is based on objective facts and evidence, if it is found that there was legal evidence before the tribunal, even if some of it was irrelevant, a . superior court would not interfere if the findings can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari if superior court does not sit in appeal but exercises only supervisory jurisdiction and therefore does not enter into question of sufficiency of evidence." Relying on this decision the learned counsel for the respondent has contended that nothing else was to be looked into by the Consolidation authorities after the admission was made by the petitioners when they moved the application under Section 232. I am not impressed by this argument. If the Statement of Ram Murat petitioner is read as a whole then it would be clear that he has given good explanation for moving of that application. Mere filing of the same cannot be said to be conclusive on the question of possession. The Dy. Director of Consolidation was bound to consider the statement of all the witnesses examined on his behalf. This case relied upon by the learned counsel does not support his case. The findings given by the Dy. Director of Consolidation are based on extraneous consideration. 23. Another case referred to by him was reported in 1980 Rev. Dec. 250: (1981 UPLT NOC 32), Gauri Shankar v. Dy. Director of Consolidation. Wherein it has been held that non-consideration of oral evidence is not enough to disturb the findings recorded by the last court of fact. The duty is cast upon the petitioner to satisfy the conscience of the High Court that non-consideration of oral evidence in a particular case is such which may bring patent error in the findings recorded by the last court of fact. 24. This case also does not help the opposite parties in view of my finding in the preceding paragraph. 25. The next case referred to was a Full Bench decision of this Court reported in AIR 1976 All 91 , Nanha v. Dy. Director of Consolidation. This case has been relied upon by the learned counsel for the petitioner also whose reference I have already made. The learned counsel for the respondents relied upon paragraphs 10-12 and 16 of this case. Since the Dy. Director of Consolidation. This case has been relied upon by the learned counsel for the petitioner also whose reference I have already made. The learned counsel for the respondents relied upon paragraphs 10-12 and 16 of this case. Since the Dy. Director of Consolidation has passed an order of reversal, this case does not help the opposite parties. 26. No useful purpose will be served by making a reference of other cases. 27. Point Nos. 3,4 and 5 may be taken up together. There is no denial of the fact that some plots were occupancy tenancy and some were fixed rate tenancy. S. 33 of the U.P. Tenancy Act provides "(1) The interest of tenant holding on special terms in Oudh,.or an ex-proprietary tenancy, of an occupancy tenant, of a hereditary tenant, and of a non-occupancy tenant is heritable, but is not transferable, otherwise than in accordance with the provisions of this Act. (2) .......................... 28. No doubt a "Will" is not strictly transfer but while regulating the devolution of the property it does involve the transfer o interest to a person who is not the legal heir i he has been given an interest in the dispute property. Occupancy tenancy is non- transferable. Under no circumstance a valid Will could have been executed with regard to such a land. Thus the Will executed by Smt. Sidheshwari Devi in favour of Snit. Shrimani Devi with regard to occupancy tenancy was a void one and did not confer any right. My view finds support from decision of this Court reported in 1985 Rev. Dec. 214 : (1985 All U 778), Ram Prasad v. Dy. Director of Consolidation; and another case reported in 1968 All U 11 Kaniz Zohr v. Deputy Director of Consolidation in which a Division Bench of this Court held "A will devising tenancy rights which are made non-transferable by the Act is void Accordingly a will devising Sir rights is invalid and ineffective." 29. The consolidation authorities have not adverted themselves to the question whether Smt. Sidheshwari Devi has inherited the property from her husband as a limited owner or absolute owner because a widow or other limited heir cannot in any case dispose of any property by a will inherited by her. 30. There is a serious dispute on the question of depositing 10 times of the rent. 30. There is a serious dispute on the question of depositing 10 times of the rent. The petitioners have filed a supplementary rejoinder affidavit which, is relevant on this question. It is admitted to the parties that Smt. Sidheshwari Devi died in the month of May, 1950. It has been stated by the petitioners that Smt. Shrimani Devi and her pairokar have forged a will alleged to have been executed by Smt. Sidheshwari Devi on 18-4-1950 though the will has never been signed by Smt. Sidheshwari Devi. In order to ascertain on what date the 10 times of rent was deposited, the Treasury challan was summoned from the Treasury Office. The Treasury Officer sent his report dated 7-12-1971 addressed to the Dy. Director of Consolidation stating that no deposit was made on 13-4-1950 but it was made on 13-4-1951 by one Jai Narain. The report has been filed as Annexure-2 to the supplementary affidavit. A copy of Z.A. form No. 8 was also filed to prove that 10 times rent was deposited on 13-4-1951 through Treasury challan No. 20 whose copy has also been filed as Annexure- 3 to the supplementary affidavit. Praman Patra No.37i2990 dated 13-41951 was issued in the name of Smt. Sidheshwari Devi in respect of the plots in dispute. The cash book of Z.A. form was also summoned before the Settlement Officer Consolidation which shows that 10 times of the rent in respect of the disputed plot was made on 13-4-1951. This fact has been taken notice of in the order of the Settlement Officer Consolidation dated 16-2-1966. The Dy. Director of Consolidation has not discussed any evidence of this point. He has upheld the validity of the will only on the ground that since a probate has already been granted in 1952, the order of probate was a judgment in rem and it became final. 31. Sri. R.N. Singh, learned counsel for the respondents has supported this finding on the ground that the consolidation authorities could not have gone into the validity or genuineness of the will after the grant of probate. He relied upon a decision reported in AIR 1957 SC 875 Surinder Kumar v. Gian Chand wherein the Supreme Court held "The judgment or the probate court must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgment in rem. He relied upon a decision reported in AIR 1957 SC 875 Surinder Kumar v. Gian Chand wherein the Supreme Court held "The judgment or the probate court must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgment in rem. The objection that the respondents were not parties to it is thus unsustainable because of the nature of the judgment itself." 32. In AIR 1984 SC 1866 , Smt. Rukmani Devi v. Narendra Lal Gupta it has been held "To be precise, a probate granted by a competent court is conclusion of the validity of such a will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. Apart from anything else, the citation having been issued to the appellant and having been served upon them, their failure to enter into a caveat to contest the proceedings would preclude them from contesting the validity of the will in other proceedings." 33. In order to appreciate the worth of his argument certain provisions of the Indian Succession Act have to be looked into. 34. Section 2(f) of the Indian Succession Act defines probate "Probate" means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator." Section 59. Person capable of making Wills.- Every person of sound mind not being a minor may dispose of his property by will. Explanation-1.- A married woman may dispose by will of any property which she could alienate by her own act during her life. Explanation-2.- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it. Explanation-3.- A person who is ordinarily insane may make a will during an interval in which he is of sound mind. Explanation-4.- No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or I from any other cause, that he does not know what he is doing." 35. Part IX of the Indian Succession Act makes provision for the grant of probate, Letters of Administration and Administration of Assets of the deceased. Part IX of the Indian Succession Act makes provision for the grant of probate, Letters of Administration and Administration of Assets of the deceased. S. 227 of the Indian Succession Act clarifies the effect of probate as under : "227. Effect of probate - Probate of a will when granted establishes the will from the death of the testator, and renders valid all intermediate Acts of the executor as such." 36. Probate once granted can be revoked or annulled for just cause as contemplated in S. 263 of the Indian Succession Act which is quite relevant for the purposes of the present case and reads as follows : "263. Revocation or annulment for just cause. The grant of probate or letters of administration may be revoked or annulled for just cause. Explanation. - Just cause shall be deemed to exits where (a) the proceedings to obtain the grant were defective in substance; or (b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or (c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or (d) the grant has become useless and inoperative through circumstances, or (e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this part, or has exhibited under that Chapter an inventory or account of which is untrue in a material respect." 37. Thus the revocation can be done only for just causes mentioned in S. 263 of the Indian Succession Act. The right of the testator to execute the will and the effect of the legal bar is beyond the scope of that provision. So on these grounds the probate cannot he revoked. 38. Nothing has been shown from the side of the opposite party that the Probate Court can consider any other question except those mentioned in S. 59 of the Indian Succession Act. 39. Now the question is whether any court other than the Probate Court is competent to decide these questions once a probate has been granted and the said order became a judgment in rem. 40. 39. Now the question is whether any court other than the Probate Court is competent to decide these questions once a probate has been granted and the said order became a judgment in rem. 40. The learned counsel for the petitioners has relied upon a Division Bench decision of this Court reported in (1897) ILR 19 All 458 Birj Nath Day v. Chandra Mohan Banerjee wherein it, has been held that "It is not the duty of the Court entertaining an application for grant of probate to consider an issue as to the title of the testator to the property with which the will propounded purports to deal, or as tow hat disposing power the testator may have possessed over such property....... A court could never be quite sure that it had got the proper parties before it. It would be difficult always to be sure that there was no collusion in the case. It is much safer in the interest of the public that issues as to the title of the properties should be decided when the issues are raised in a regular Suit and not on an application for grant of probate." 41. In the case of Bai Parvatibai v. Raghunath Lakshman reported in AIR 1941 Bom 60. it has been held "A testamentary court dealing with the question of issuing a grant of probate is concerned to see whether the will is duly executed as required by law by a testator of sound and disposing state of mind. In case of grant of Letters of administration the court has to see that the person properly entitled to represent the estate of the deceased according to Indian Succession Act has come to court and is given the grant. It is not part of the duty of the testamentary judge to consider the question of title to property. A Caveat cannot, therefore, be sustained on the mere ground that the property which is attempted to be disposed of by the deceased by the will or in respect of which letters of administration are asked for is joint fancily estate. A caveator should file a suit to establish his title to the property and if adequate grounds are made out, he can obtain the appointment of a receiver or an injunction against the administration." 42. A caveator should file a suit to establish his title to the property and if adequate grounds are made out, he can obtain the appointment of a receiver or an injunction against the administration." 42. In the case reported in AIR 1946 Oudh 193, Thakurain Rai Rani v. Dwarika Nath Singh a Division Bench of this Court held "Probate was conclusive only to the limited extent that the instrument admitted to probate was the will of the testator but not as what court must hold to be its construction as to the rights of the property disposed of by the will." 43. In the case reported in AIR 1960 Raj 237 , Thakur Madhosingh v. Jagdambalal it has been held that in probate proceedings there is no necessity for an enquiry whether the person who makes a will had any title to the property which he bequeathed. All that the court is concerned, is to find out whether the document set up as a will was properly executed by the person when he was in a sound mind and knew the consequences of his act. 44. In the case of Gopinath Sunderlal v. Chunnilal Sunderlal, AIR 1953 Nag 316 a Division Bench of that Court held that in probate proceedings the question of title cannot be decided and probate court is not concerned to see the manner in which the property is disposed of. 45. From a perusal of the above mentioned decisions it is clear that the Probate Court has got nothing to do with the title of the testator or about the legal bar regarding execution of the will. In this case it could be decided by the consolidation authorities independently on the basis of the evidence on the record. 46. The learned counsel for the opposite parties has placed much emphasis on the decision of the Supreme Court in the case of Smt. Rukmani Devi v. Narendra Lal Gupta, AIR 1984 SC 1866 (supra). 47. In this case it could be decided by the consolidation authorities independently on the basis of the evidence on the record. 46. The learned counsel for the opposite parties has placed much emphasis on the decision of the Supreme Court in the case of Smt. Rukmani Devi v. Narendra Lal Gupta, AIR 1984 SC 1866 (supra). 47. The law laid down by the Supreme Court that the order of Probate Court granting probate of a will is a judgment in rem is the law of the land no doubt, but nothing has been shown by learned counsel for the opposite parties whether there was any provision in the Indian Succession Act or the Supreme Court had an occasion to consider the question whether the probate court could decide the question of the title of the testator or whether a valid will could be executed regarding the property when there is a prohibition in law. The explanation contained therein does not contemplate a situation as in the instant case. Probate Court has no jurisdiction to decide them. These questions are beyond the scope of S. 263 of the Indian Succession Act. It could be decided only by means of a regular suit. 48. The next submission made by the learned counsel for the opposite parties was that since there was an obiter of the Supreme Court that the validity or the genuineness of the will cannot be gone into by any other court it precludes any court to decide that question. 49. Article 141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. In the case reported in AIR 1971 SC530 (578) H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur v. Union of India it has been held "It is difficult to regard a word, a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment." 50. In the case reported in AIR 1975 SC 1087 (1088) Municipal Committee Amritsar v. Hazara Singh it is held "Judicial property, dignity and decorum demand that being the highest judicial tribunal in the country every orbiter dictum of the Supreme Court should be accepted as binding. In the case reported in AIR 1975 SC 1087 (1088) Municipal Committee Amritsar v. Hazara Singh it is held "Judicial property, dignity and decorum demand that being the highest judicial tribunal in the country every orbiter dictum of the Supreme Court should be accepted as binding. Declaration of law by that court even if it be only by the way has to be respected. But all that does not mean that every statement contained in a judgment of that court would be attracted by Article 141. Statements on matters other than law have no binding force. Several decisions of the Supreme Court are on facts and that court itself has pointed out in Gur Charan Singh v. State of Punjab, 1972 FAC 549 (Punj & Hry). and Prakash Chandra Pathak v. State of U.P., AIR 1960 SC 195 that as on facts no two cases could be similar, its own decisions which were essentially on questions of fact could be relied upon as precedents for decision of other cases." 51. In the case of Rafiq v. State of U.P., 1980 4 SCC 262 the Supreme Court took the view "The ratio of one case cannot be mechanically applied to another case without having regard to the facts, situation and circumstances obtaining in the two cases." 52. In the case reported in AIR 1980 SC 1707 , Rajpur Ruda Meha v. State of Gujarat it has been held that "When certain question is neither raised nor argued a discussion by Court after 'pondering' over the issue in depth could not be a precedent binding on the courts." 53. In the case reported in AIR 1976 SC 1766 , The Regional Manager v. Pawan Kumar Dubey it has been held "It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decided and not some conclusion based upon the facts which may appear to be similar. One additional or different fact can make a world of difference between the conclusions in two cases even when the same principles are applied in each case to similar facts." 54. In the case reported in AIR 1968 SC 647 State of Orissa v. Sudhansu Sekhar Misra it has been held that "A decision is only an authority for what it actually decides. In the case reported in AIR 1968 SC 647 State of Orissa v. Sudhansu Sekhar Misra it has been held that "A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor' what logically follows from the various observations made in it. I t is not a profitable task to extract a sentence here and therefrom a judgment and to build upon it." 55. In the case reported in AIR 1964 SC 600 Moti Ram Deka v. The General Manager, North East Frontier Railways it has been held "The observation in the judgment of Supreme Court which are in the nature of obiter dicta cannot be relied upon solely, for the purpose of showing that certain statutory rules should be held to be valid as a result of the said observation." 56. In the case reported in (1983) 4 SCC 353 Sreenivasa General Traders v. State of A.P. it has been held "A case is an authority only for what it actually decides and not for what may logically follow from it. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, Since the generality of the expression which may have been found there are not intended to be expositions of the whole law but governed or qualified by the particular facts of the case in which such expressions are to be found. Observations in the judgment which are really not necessary for the purposes of the decision and go beyond the occasion have no binding authority and merely have persuasive value." 57. In the case reported in AIR 1987 SC 1073 , Ambica Quarry Works v. State of Gujarat it has been held "The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides and not what logically follows from it." 58. It has been said long time ago that a case is only an authority for what it actually decides and not what logically follows from it." 58. In AIR 1977 Guj 15 , Ramniklal Dwarkadas Modi v. Mohanlal Laxmi Chand Full Bench of that Court relying upon an earlier decision of the Supreme Court reported in AIR 1968 SC 647 has held that the decision of the Supreme Court is not to be read as statutory, a decision of (sic) is only an authority of what it actually decided. 59. In reply the learned counsel has relied upon one decision of this Court reported in AIR 1977 All 370 , L. Deep Chandra v. Lala Raghuraj Swarup wherein a Full Bench of this Court while interpreting the scope of Article 141 has held "Even an obiter of the Supreme Court is binding on the High Court. The only requirement is that the observation made by the Supreme Court was not a stray observation but it was the considered opinion of the Supreme Court." This judgment is based on the earlier two judgments of this Court reported in AIR 1968 All 100 , Ram Manohar Lohia v. State of U.P. and AIR 1969 All 304 (FB), Chobey Sunder Lal v. Sonu alias Sonpal. 60. In the case of Smt. Rukmani Devi, AIR 1984 SC 1866 the facts were that one Chaudhary Prasad died leaving behind his wife, two sons and one daughter. Rukmani Devi was the widow of one of the sons. The widow of Chaudhary Prasad filed a suit for partition and separate possession of her share in the property, against her son Kallu who was the husband of Smt. Rukmani Devi. The aforesaid suit ended into a compromise decree. Smt. Ram Dulari died on March 6, 1970. Before her death she made the last will on Feb. 7, 1970 in favour of her son Nagendra Lal who on the strength of the will proceeded to execute the consent decree. Smt. Rukmani Devi challenged the validity of the will executed by Smt. Ram Dulari and contended that unless the will was probated the respondents could not proceed with the execution on the basis of the Will. The Executing Court upheld the contention and stayed the proceedings till the Will was admitted to probate. Smt. Rukmani Devi challenged the validity of the will executed by Smt. Ram Dulari and contended that unless the will was probated the respondents could not proceed with the execution on the basis of the Will. The Executing Court upheld the contention and stayed the proceedings till the Will was admitted to probate. The matter was taken to the High Court where it was held that in view of the provisions contained in S. 213(2) of the Indian Succession Act 1925 a Will made by a Hindu in the State of Madhya Pradesh need not be probated and that S. 214 of the Indian Succession Act is not attracted because the consent decree did not provide for recovering the debt. The High Court accordingly set aside the order of Executing Court. The matter was remitted to the Executing Court to take evidence pertaining to the question of validity of the Will. This order of the High Court was challenged by means of a Special Leave Petition before the Supreme Court. During the pendency of the Special Leave Petition respondents of the case moved an application for obtaining probate of the will of late Snit. Ram Dulari. The probate was granted on 8-7-1977. Consequently the appeal pending in the Supreme Court was dismissed on 21-2-1978. Thereafter the respondents approached the Executing Court to proceed further with the execution. The appellants in the meantime filed a suit questioning the validity legality and genuineness of the Will of Smt. Ram Dulari. The respondents raised an objection before the Executing Court that the will in favour of Nagendra Lal was forged one and the V Additional Judicial Commissioner, Chhota Nagpur, Ranchi had no jurisdiction to grant probate since the property covered by the decree was of the value of more than Rs. 1 Lac and the same was situated beyond its jurisdiction. The third objection was that the probate could not be operative in the State of Madhya Pradesh. Another objection was that the civil suit challenging the validity of the Will is pending. 61. The Executing Court found that the Judicial Commissioner, Ranchi had no jurisdiction to grant probate of the Will and the respondents must establish the genuineness of the W ill before the Executing Court. Against this order of the Executing Court revisions were filed in the High Court. 61. The Executing Court found that the Judicial Commissioner, Ranchi had no jurisdiction to grant probate of the Will and the respondents must establish the genuineness of the W ill before the Executing Court. Against this order of the Executing Court revisions were filed in the High Court. It was held by the High Court that the decision of the probate court being a judgment in rem, the action of the probate court in admitting the Will to probate, so long as the order remains in force, is conclusive to the due execution and validity of the will and party to the probate proceedings cannot be permitted to contest the will unless the grant of probate is revoked. Accordingly High Court set aside the order directing the respondent to lead evidence to establish the genuineness of the will and directed the Executing court to proceed further with the execution proceedings. 62. Against this order of the High Court an appeal was filed in the Supreme Court which was dismissed. Thus the point which has been finally decided was, so long as the order of probate remains in force, it was conclusive as-to the due execution and validity of the. will and a party to the probate proceedings cannot be permitted to contest the will unless the grant of probate is revoked. 63. In the case of Surinder Kumar v. Grian Chand, AIR 1957 SC 875 . the Supreme Court has held only this much that the judgment of the probate court must be assumed to have been obtained in accordance with the procedure prescribed by law and was a judgment in rem. The objection that the respondents were not parties to it is thus unsustainable because of the nature of the judgment itself. The facts of that case are entirely different and have no application to the facts of the present case. 64. In the instant case the due execution of the Will was not the controversy and moreover the person challenging the will was not a party to the probate proceedings. The ground on which the will is being challenged is that the person executing the same had no legal right nor any will could be executed with regard to the property as there is a legal bar. 65. The ground on which the will is being challenged is that the person executing the same had no legal right nor any will could be executed with regard to the property as there is a legal bar. 65. Since this was not the point involved in the two cases and there was no discussion, it cannot be said that the obiter would be mechanically applied to the facts of this case. The ratio of those two cases must be understood in the background of the facts of that case. This obiter of the Supreme Court cannot be relied upon for the controversy in the instant case. On the other hand the view of Allahabad Court in the case of L. Deep Chandra v. Lala Raghuraj Swarup, AIR 1977 All 370 (FB) and Birj Nath Day v. Chandra Mohan Banerjee, 1897 ILR 19 All 458 and other High Courts in the cases of Bai Parvathi Bai v. Raghunath Lakshman, AIR 1941 Bom 60, Thakurain Rai Rani v. Dwarika Nath Singh, AIR 1946 Oudh 193., Thakur Madhosingh v. Jagdambalal, AIR 1960 Raj 237 has been that the question of title will be decided by regular civil court and a testamentary court dealing with the question of issuing the grant of probate is only concerned whether the will is duly executed as required by law by a testator of sound mind and disposing state of mind. Any controversy other than these two points was beyond the scope of the testamentary courts. These two Supreme Court cases on which reliance was placed by the learned counsel for the respondents did not have the occasion to consider the controversy involved in the instant case and as such it cannot be said that the obiter of these two cases will preclude the consolidation courts to decide these two questions. 66. Another decision relied upon was reported in AIR 1970 Guj 277 Chhotalal Vaghjibhai v. Vivekanand Mills Co. Ltd. wherein it has been held that the High Court is not competent to distinguish a Supreme Court decision on facts. Doctrine of obiter per incuriam (obiter of the court) or distinguishing a case on facts applied to concurrent courts. 67. 66. Another decision relied upon was reported in AIR 1970 Guj 277 Chhotalal Vaghjibhai v. Vivekanand Mills Co. Ltd. wherein it has been held that the High Court is not competent to distinguish a Supreme Court decision on facts. Doctrine of obiter per incuriam (obiter of the court) or distinguishing a case on facts applied to concurrent courts. 67. So far this proposition of law is concerned, there is hardly any dispute but if the Supreme Court had no occasion to decide a particular issue which was not before it, then the obiter on that question cannot he said to be binding on other courts. , 68. The learned counsel for the respondents has relied upon the decision reported in AIR 1970 SC 1002 , Ballabadas Mathuradas Lakhani v. Municipal Committee, Malkapur in which it has been observed "The decision of the Supreme Court is binding on High Courts. It cannot be ignored on the ground that the relevant provision was not brought to the notice of the High Court " Hardly there is any dispute on this question also. This case is not an authority for the controversy involved in the present case. 69. Since the Dy. Director o Consolidation has allowed the revision of the opposite parties without considering the or and documentary evidence and the question of the validity of the will also has not bee gone into. the order becomes vitiated. 70. It has been held by the Supreme Court in the cases reported in AIR 1977 SC 388 Beant Singh v. Union of India : AIR 1970 SC 61 Shaikh Mahamad Umaresaheb v. Kadalaskar Hasham and AIR 1964 SC 477 Syed Yakoob v. K.S. Radhkrishan that the High Court while exercising jurisdiction under Article 226 of the Constitution is not sitting as a court of appeal and as such cannot record its own findings. In these circumstances I am compelled to remand the case to the Dy. Director of Consolidation, though I was reluctant in doing so because it is a very old case pending since 1961, to decide afresh in accordance with the observations made above. 71. The writ petition is allowed and the order dated 7-7-1978 passed by the Dy. Director of Consolidation is set aside. The case is remanded to the Dy. Director of Consolidation, though I was reluctant in doing so because it is a very old case pending since 1961, to decide afresh in accordance with the observations made above. 71. The writ petition is allowed and the order dated 7-7-1978 passed by the Dy. Director of Consolidation is set aside. The case is remanded to the Dy. Director of Consolidation who after hearing the parties will decide the case afresh within a period of three months from today. A certified copy of this order will be filed by the petitioner before the Dy. Director of Consolidation within a fortnight. The Dy. Director of Consolidation will fix a date in the second week of Jan. 1989 and will decide the case on that date. He will consider and decide all the points raised before this Court. Since the writ petition succeeds only on the first two points, no finding on other points is required from this Court but the Dy. Director of Consolidation will record his own independent findings on all the points afresh without being swayed away by the earlier findings. 72. In the circumstances of the case the parties will bear their own costs.