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2013 DIGILAW 2962 (ALL)

Damodar v. Dy. Director of Consolidation

2013-12-06

RAM SURAT RAM (MAURYA)

body2013
JUDGMENT : Ram Surat Ram (Maurya), J. Heard Sri S.C. Verma and Sri Gokaran Singh, counsel for the petitioner and Sri R.S. Gupta, counsel for respondents 6 and 7. 2. The writ petition has been filed against the order of the Deputy Director of Consolidation dated 28.10.2013 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953(hereinafter referred to as "the Act"). 3. The dispute relates to the land of Khata No. 40 and 174 of Village Lareva, Pargana Chiriya Kot, Tehsil Muhammdabad, district Mau. In the basic consolidation record khata No. 40 was recorded in the names of Supher son of Bahal, Lilawati, widow of Ramkishun, Subedar son of Haripal, Vishram and Sukhram sons of Ghurpatar while khata No. 174 was recorded in the name of Subedar son of Haripal. The petitioner filed an objection that Subedar executed a will dated 16.12.1987 in their favour and died on 9.3.1988 as such after his death the property of the share of Subedar has been inherited by the petitioners. The other objections were filed by Katvaru and others who claimed to have a sale deed from Supher. Supher contested the objection and denied execution of will by Subedar and he claimed that Subedar died issue-less as such the property in dispute was inherited by him being his father's brother's son. The case was tried by the Consolidation Officer, Chiraiya Kot, Mau, who by order dated 19.9.2002 found that as due execution of the will dated 16.12.1987 was proved by Ram Awadh Singh, marginal witness of the will as such on the basis of the will the petitioner inherited the property of Subedar. Accordingly, the name of the petitioner was directed to be recorded over the land in dispute. Respondents filed two appeals i.e. one by Supher and another by Nagendra and others. Both the appeals were consolidated and heard by the Settlement Officer, Consolidation, who by order dated 19.9.2002 allowed the appeals and held that as the order of mutation which was passed on the basis of P.A-11 was not set aside as such on the basis of the will it was not liable to be deleted. The petitioner filed an application for recall of the order dated 19.9.2002 on the ground that the order was an ex parte order. The petitioner filed an application for recall of the order dated 19.9.2002 on the ground that the order was an ex parte order. The recall application was heard by the Settlement Officer, Consolidation, Mau, who by order dated 28.3.2006 rejected it on the ground that the restoration application did not contain signature of Damodar or Ram Kunwar Singh, who was having his power of attorney, and which was filed by one Harendra Kumar Singh, who was neither party in the proceeding nor aggrieved by the impugned order as such the recall application was not maintainable. 4. The petitioner filed a revision(registered as Revision No. 141/173/ 2013-14 against the orders of the Settlement Officer, Consolidation dated 19.9.2002 and 28.3.2006. The revision was heard by the Deputy Director of Consolidation, who by order dated 29.10.2013 found that as the petitioner in spite of the notice did not appear before the appellate court, accordingly, the order cannot be treated as ex parte order. On merit, he found that photo of Subedar affixed on the will was entirely different from his photo affixed on his driving licence. The recitals in the will that Damodar was his grandson was false and the signature of Subedar contained on the will did not tally with the signature contained on the photograph. Apart from the aforesaid situation as the will was not registered, it has been taken as a suspicious circumstance and the revision filed by the petitioner has been dismissed. Hence this writ petition has been field. 5. The counsel for the petitioner submits that due execution of the will was proved by the marginal witness Ram Awadh Singh and at the time of registration, the registration of the will was not compulsory under Section 169 of U.P. Act No. 1 of 1951. Accordingly, the Consolidation Officer found that due execution of the will was proved. The respondents have not adduced any evidence to show that the will was a forged or fabricated document. In these circumstances the finding of the Consolidation Officer has been illegally set aside by the Deputy Director of Consolidation. He submits that although the judgment of the Settlement Officer, Consolidation was an ex parte judgment but the Deputy Director of Consolidation has illegally held that judgment was not an ex parte judgment. In such circumstances the order of the Deputy Director of Consolidation was illegal and is liable to be set aside. He submits that although the judgment of the Settlement Officer, Consolidation was an ex parte judgment but the Deputy Director of Consolidation has illegally held that judgment was not an ex parte judgment. In such circumstances the order of the Deputy Director of Consolidation was illegal and is liable to be set aside. 6. I have considered the arguments of the counsel for the petitioner and examined the record. 7. So far as arguments of the counsel for the petitioner that order dated 19.9.2002 was an ex parte order is concerned, Deputy Director of Consolidation found that the order dated 19.9.2002 was not an ex parte order as the notice had been served upon the petitioner but he did not appear before the Settlement Officer, Consolidation. It has been stated that on 19.9.2002 the Central Bar Association had passed a resolution for strike on behalf of the advocates, accordingly, the case was adjourned and 7.10.2002 was fixed by Peshkar but the Settlement Officer, Consolidation has decided the appeals by the order dated 19.9.2002. The position has been disputed by the respondents. He has alleged that the arguments in the appeals were already heard before 19.9.2002 and the judgment was pronounced on 19.9.2002 and strike of the Advocates on 19.9.2002 was immaterial. The petitioner could not challenge the findings of Deputy Director of Consolidation that in spite of service of notice, the petitioner did not appear before the appellate court before 19.9.2002. The petitioner has not given any explanation for his non appearance before the appellate court after service of the notice. When the appeal was decided on 19.9.2002, then in the restoration application he took shelter of Advocates' strike on 19.9.2002. In any case the Deputy Director of Consolidation has decided the case on merit as such it is not required to be examined by this Court as to whether the Settlement Officer, Consolidation decided the appeals on merit by an ex parte order. The petitioner was fully heard as the revision was decided on merit. 8. In any case the Deputy Director of Consolidation has decided the case on merit as such it is not required to be examined by this Court as to whether the Settlement Officer, Consolidation decided the appeals on merit by an ex parte order. The petitioner was fully heard as the revision was decided on merit. 8. As held by Supreme Court in Cases of H. Venkatachala Iyenger v. B.N. Thimmajamma, AIR 1959 SC 443 , S.R. Srinivasan v. S. Padmavathamma, 2010(3) Civil Court Cases 359(S.C.) : 2010(2) Apex Court Judgments 674 (S.C.) : (2010)5 SCC 274 and Balathandayutham v. Ezhilorasan, 2010(3) Civil Court Cases 043(S.C.) : 2010(2) Apex Court Judgments 028(S.C.) : 2010(5) SCC 770 that in the case of the will suspicious circumstances are also required to be removed by the propounder of the will. The Deputy Director of Consolidation found that the will is surrounded by suspicious circumstances. The third circumstance which is very relevant is that photograph of Subedar affixed on the will was not tallying with his photograph which was affixed on his driving licence. This document was filed before the Consolidation Officer but the Consolidation Officer has failed to advert upon this document and recorded the finding only on the ground that due execution of the will has been proved by the marginal witness. No explanation has been given before this Court in respect of different photographs. The counsel for the petitioner submits that the Consolidation Officer has found that the photograph affixed on the will was identified by the attesting witness in his statement. The attesting witness has not given any explanation about different photographs which has been affixed on the will and on original driving licence of Subedar. In such circumstances the finding of the Consolidation Officer was recorded without consideration of the material evidence on record and finding of the Deputy Director of Consolidation in this respect does not suffer from any illegality. 9. The other suspicious circumstance is that in the recitals of the will Damodar has been mentioned as grandson of Subedar although Subedar was issue-less. No question of grandson thus arises at all. The counsel for the petitioner submits that as Subedar was residing with the father of Damodar accordingly, he denoted Damodar as his grandson and by this denotion itself there is no suspicious circumstance. No question of grandson thus arises at all. The counsel for the petitioner submits that as Subedar was residing with the father of Damodar accordingly, he denoted Damodar as his grandson and by this denotion itself there is no suspicious circumstance. It is a general term which is used due to natural love and affection. The denotion of son or grandson is not the general term but has specific connotation i.e. used for son or grandson only. 10. The other circumstance that signature of Subedar on the will was not tallying with his signature on the photograph affixed on the will. This was also a material suspicious circumstance. 11. In any case the fact finding authority found that the will was a suspicious document, the superior Court cannot substitute its own findings. go through. The findings of fact recorded by the Deputy director of Consolidation cannot be termed as imaginary or based on conjectures and surmises. 12. In view of the aforesaid discussions, the findings recorded by the Deputy Director of Consolidation do not suffer from any illegality. No interference is required by this Court. The writ petition is dismissed. Petition dismissed.