JUDGMENT Hon’ble Rajiv Sharma, J.—In the instant writ petition, the petitioner has questioned the validity and correctness of the order dated 31.7.1997 passed by the Deputy Director of Consolidation, Hardoi as also the order dated 22.2.1990 of Consolidation Officer, Bhairawan, District Hardoi, mainly on the ground that the Deputy Director of Consolidation while passing the impugned order substituted his own findings, which is not permissible under law. Further, the findings recorded by him are perverse as he fell into error in not appreciating the materials on record and the conclusions arrived at by the Settlement Officer, Consolidation in its correct prospective. 2. Counsel for the petitioner has vehemently argued that the opposite party No.1 has committed manifest error of law in ousting the petitioners, who are the natural heirs of deceased Ram Harash and gave too much weight to the alleged Will of Ram Harsh, who was in paralysed condition and was not mentally fit to execute the Will. Moreover, in the Will no reasons had been assigned for the ouster of the natural heirs. It was also submitted that the petitioners are the sons of real sister of deceased Ram Harsh and in view of Section 171 of U.P. Zamindari Abolition and Land Reforms Act, they are legal heirs. 3. Elaborating his arguments, the petitioners Counsel submitted that Ram Harash (deceased) son of Raghubar was recorded in Khata No. 83 as Bhumidhar in the basic year. In Khata No. 122, 11 and 120, Ram Harsh was recorded alongwith other co-sharers i.e. opposite parties Nos. 7 to 17. Ram Harash was unmarried and died on 9.8.1986. On 19.10.1986, names of the petitioners were recorded after the proceedings under Section 33 of the U.P. Land Revenue Act. On commencement of the Consolidation proceedings, objections under Section 9-A(2) of the U.P. Consolidation of Holdings Act were filed in respect of all the aforesaid four Khatas by opposite parties Nos. 3 to 6, namely, Shiv Shanker, Shri Kant and Virendra Dutta alias Lallan stating therein that Ram Harsh had executed a registered WILL dated 7.8.1986 and they were successors of Ram Harsh to the extent that Shiv Shanker Lal and Shri Kant would have half share and Virendra Dutt alias Lallan and Ramesh Chandra would have half share. In the present writ petition, the dispute is between the petitioners and opposite party Nos. 3 to 6 with regard to succession. 4. In the present writ petition, the dispute is between the petitioners and opposite party Nos. 3 to 6 with regard to succession. 4. According to the petitioners, opposite parties Nos. 3 to 6 are remote collaterals of Ram Harsh and not the natural successors while the petitioners are the natural successors of deceased Ram Harsh and as such the property should have devolved upon them. 5. The Consolidation Officer, according to the petitioners, summarily decided the case without examining the entire evidence on record and allowed the objections. The order dated 22.3.1990 was challenged in Appeal No. 770 before the Settlement Officer, Consolidation, Hardoi by the petitioner, who recorded a finding that the alleged registered WILL dated 7.8.1986 since had been produced by the opposite parties Nos. 3 to 6, therefore, the obligation to prove the WILL was on them. The Settlement Officer, Consolidation while allowing the appeal by the order dated 26.7.1990 recorded a finding that opposite party Nos. 3 to 6 had admitted that the petitioners are real nephew [Bhanja] of the deceased Ram Harsh yet the claim of the opposite parties Nos. 3 to 6 was based on alleged WILL dated 7.8.1986, which they have failed to prove beyond doubt and as such no right has accrued in favour of opposite parties Nos. 3 to 6. 6. The order dated 26.7.1990 was assailed by the opposite parties Nos. 3 to 6 in Revision before the Deputy Director of Consolidation, who by the impugned order dated 31.7.1997 allowed the Revision without assigning any cogent reasons for upsetting the findings recorded by the Settlement Officer, Consolidation. Petitioner’s contention is that the Deputy Director of Consolidation ordinarily should not have interfered with the findings of fact arrived at by the Settlement Officer, Consolidation when the view taken by him is reasonable and for arriving on this view, relevant materials were examined by him. In view of the proposition enumerated in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433. 7. According to learned Counsel for the petitioner that a Will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the will is on the propounder. The testamentary capacity of the testator must also be established. 7. According to learned Counsel for the petitioner that a Will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the will is on the propounder. The testamentary capacity of the testator must also be established. Execution of will by the testator has to be proved and one attesting witness is required to be examined for the purpose of proving the execution of the will. It is required to be shown that the will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before it can be accepted as genuine. Reliance in this regard has been placed on a Apex Court decision in Savithri v. Karthyayani Amma, (2007)11 SCC 621 . 8. On the strength of aforesaid decision, it has been argued that Sub-Registrar was having doubt regarding the condition of Ram Harsh as to whether he would be able to understand the character and contents of the WILL and its consequence. In order to overcome the said deficiency, the opposite parties Nos. 3 to 6 had obtained a certificate from one Dr. Amar Nath Agnihotri of Sandila, Hardoi regarding the mental and physical fitness of the deceased Ram Harsh but the said doctor was not produced in the witness box to ascertain his qualification and competence to issue such a certificate. Moreover, one Dularey was produced; who infact was the interested witness as he was the servant of opposite parties Nos. 3 to 6. However, said Dularey had admitted in his statement that Ram Harsh was of feeble mind. 9. Moreover, one Dularey was produced; who infact was the interested witness as he was the servant of opposite parties Nos. 3 to 6. However, said Dularey had admitted in his statement that Ram Harsh was of feeble mind. 9. Placing reliance on P.S. Sairam v. P.S. Rama Rao Pissey, (1994) 11 SCC 320 and Ram Piari v. Bhagwant, (1990) 3 SCC 364 , learned Counsel for the petitioner contended that Deputy Director of Consolidation completely ignored the law laid down by the Hon’ble Apex Court in the aforesaid cases wherein the parameters have been enunciated to examine the validity or otherwise of a WILL and it has been held that a WILL become suspicious if it is executed in favour of a person other than the natural successors without assigning any reason for the exclusion of the natural successors and giving all the rights in favour of a third person. Another error in the impugned order is that the Deputy Director of Consolidation completely ignored the fact that other witness of the WILL were not produced or called in order to ascertain the truth. 10. Refuting the allegations of the petitioner’s Counsel, Counsel for the contesting respondents urged that Ram Harsh (deceased) had executed a Registered Will in favour of the answering respondents on 7.8.1986 as they were taking care of the deceased and even in his life time there was a joint account in the Allahabad Bank. He further submitted that at the relevant time where the property of deceased Ram Harsh was situated, was notified for consolidation, even then the petitioners in collusion with Tehsildar got their names recorded in the Revenue Record only in Khata No. 83. The answering opposite party No. 3 filed an objection stating therein that Tehsil Authority has got no authority to pass such an order when the village was notified for consolidation. Consequently, by the order dated 9.12.1996 the earlier order directing the names of the petitioners to be recorded in the revenue record, was recalled/cancelled. 11. Learned Counsel for the respondent next contended that the petitioners have failed to prove before the Consolidation Officer and the Deputy Director that they are the successors according to Rule 171 of the U.P. Z.A. & L.R. Act. Not only this, they have also failed to establish that they are the sons of Batti, who happens to be the sister of late Ram Harsh. Not only this, they have also failed to establish that they are the sons of Batti, who happens to be the sister of late Ram Harsh. The ‘’Kutumb Register’ filed before the Court below also does not establish the aforesaid fact but it shows that late Ram Harsh was not having any sister. 12. Placing reliance on Shankar @ Surendra v. Deputy Director of Consolidation, 2003(2) JCLR 502 and Ashra Ram v. Deputy Director of Consolidation 1997(2) JCLR 359, learned Counsel for the respondents has contended that if any incorrect finding has been recorded, the Deputy Director of Consolidation can examine the same as an appellate authority. Thus there is no error or illegality in the order passed by the Deputy Director of Consolidation in setting aside the order of Settlement Officer Consolidation and maintaining the order passed by the Consolidation Officer. 13. Undisputedly, the Deputy Director of Consolidation has been given powers under the Consolidation Act. The powers of the Deputy Director of Consolidation were not held to be confined to questions of law or any procedural irregularity committed by the subordinate authorities. In case any incorrect finding has been recorded, the same can be examined as an appellate authority. 14. In the instant case, the main dispute is whether the petitioners are the real sons of late Ram Harsh. Petitioners are claiming their rights over the land in question being natural heirs. The case of the contesting respondents is that the petitioners have failed to prove that they are the sons of Batti, who happens to be the sister of late Ram Harsh. In paragraph 24 of the counter affidavit filed on behalf of opposite parties Nos. 3 to 6 which reads as under : “That from the documentary evidence including extract of Kutumb Register, filed in the Court below, it is obvious that late Sri Ram Harsh was not having any sister.” 15. Thus there are material contradictions in the statement of contesting respondents. The Deputy Director of Consolidation in its judgment has only observed that there is no evidence on record to prove that the petitioners are the nephews of Late Ram Harsh. Even otherwise, it is not proved that they are the nephews. Thus there are material contradictions in the statement of contesting respondents. The Deputy Director of Consolidation in its judgment has only observed that there is no evidence on record to prove that the petitioners are the nephews of Late Ram Harsh. Even otherwise, it is not proved that they are the nephews. The Settlement Officer, Consolidation on the contrary has observed that from the materials on record and the oral evidence, it is proved that Sattidin and Nand Kishore are nephews of Late Ram Harsh. A perusal of the statement of Shiv Pal Singh shows that he has stated in his statement that petitioners are the nephews of late Ram Harsh, who was issueless. Similarly, Shiv Shanker has stated in his statement that it is incorrect to say that the petitioners are not nephews. Further, the petitioners have also doubted the genuineness of the alleged WILL. 16. This Court while exercising powers under Article 226 of the Constitution cannot decide the question as to whether the petitioners are nephews of Late Ram Harsh or not and whether the WILL is a genuine document or not. 17. In view of the above, I am of the opinion that the interest of justice would suffice if the matter is remitted to the Deputy Director of Consolidation, Hardoi to decide the matter afresh in light of the observations made hereinabove in accordance with law after giving opportunity of hearing to the parties concerned so that the claims of the parties under the Act may be effectively adjudicated upon and determined so as to confer finality to the rights of the parties. I hope and trust that the Deputy Director of Consolidation will make earnest endeavour to conclude the case by March, 2009. 18. For the reasons aforesaid, the order dated 31.7.1997 passed by the Deputy Director of Consolidation is hereby set-aside. As this Court has passed an interim order on 28.10.1997, staying the operation of the order dated 31.7.1997, it is directed that the parties shall maintain status-quo till the final order is passed by the Deputy Director of Consolidation. 19. It is also made clear that the parties shall not seek any unnecessary adjournments and if any unreasonable adjournment is sought by the party, then it should be only after imposing costs. 20. Writ petition is allowed in part in above terms. ———