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2014 DIGILAW 2936 (ALL)

Brijendra v. D. D. C.

2014-09-19

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri P.K. Khare and Sri C.B. Pandey, for the petitioners and Sri Mohd. Arif Khan, Senior Advocate, assisted by Sri Mohd. Ali and Sri Piyush Mishra, for contesting respondents. The writ petition has been filed against the orders of Consolidation Officer dated 3.11.1979, Settlement Officer Consolidation dated 15.2.1996 and Deputy Director of Consolidation dated 16.7.2001, passed in title proceedings under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 2. The dispute between the parties is in respect of the land recorded in basic consolidation year khata 22 of village Bibipur, pargana Surhur, district Ambedkar Nagar, which was recorded in the name of Smt. Pyari wife of Achhai-bar. Nand Kishor (now represented by respondents-4 to 6) (hereinafter referred to as the respondents) filed an objection for deleting the name of Smt. Pyari and recording his name over the khata in dispute. It was stated by Nand Kishor that the land in dispute was the property of Ram Hit son of Hardeen and was inherited by his son Bhodar. Bhodar died issueless in December 1955. At that time amongst the brothers of Ram Hit, Nand Kishor alone was alive as such he inherited the land in dispute. Smt. Pyari was not the daughter of Ram Hit. One objection was filed on behalf of Smt. Pyari by Krishna Kumar Mishra, alleged Power of Attorney holder stating that Smt. Pyari was sister of Bhodar and after his death in December, 1955 as issueless, she inherited the land in dispute. She never executed any sale deed in favour of the petitioners (or their predecessors). Bhodar was deaf, dumb and suffering from lunatic-asylum as such the petitioners were cultivating the land from his life time, on his behalf. After death of Bhodar, there had been litigation in respect of the land in dispute, in which on her behalf the petitioners used to do pairavee. On the asking of the petitioners, she used to sign papers as and when required. The petitioners fabricated sale deeds and obtained her thumb impressions on it without paying any sale consideration. The petitioners filed objections, claiming their right on the basis of two sale deeds executed by Smt. Pyari dated 22.11.1963 and one sale deed dated 6.12.1963. On the asking of the petitioners, she used to sign papers as and when required. The petitioners fabricated sale deeds and obtained her thumb impressions on it without paying any sale consideration. The petitioners filed objections, claiming their right on the basis of two sale deeds executed by Smt. Pyari dated 22.11.1963 and one sale deed dated 6.12.1963. It has been stated by the petitioners that prior to execution of the sale deed Smt. Pyari deposited 10 times of land revenue of her sirdari land on 22.11.1963 and obtained bhumidhari certificate. On the basis of sale deeds they were in possession of the respective land transferred according to their sale deeds. There were several other objections but those are not relevant for the purposes of this writ petition. It may be mentioned that although Consolidation Officer dismissed the objection filed on behalf of Smt. Pyari by Krishna Kumar Mishra, but he had not challenged it. 3. Khata 22 consisted an area of 5-1-3 bigha land, inherited by Bhodar from ancestral sir land and was recorded as bhumidhari land while remaining area of 15-6-12 bigha, which was previously sirdari land (prior to 22.11.1963) was acquired by Ram Hit through patta dated 10.7.1916 from Hanswar State and after death of Ram Hit it was inherited by Bhodar. Nand Kishor and Bhodar filed a suit (registered as Regular Suit No. 540 of 1953) for partition of their share in ancestral land (sir land of the time of Hardeen, after date of vesting recorded as bhumidhari). In this suit, Nand Kishor was plaintiff-1 and claimed 1/3 share (i.e. 1/6 of himself and 1/6 of his brother Naubat) and Bhodar through his next friend Smt. Rajji, was plaintiff-2 and claimed 1/6 share. It was alleged that Hardeen left behind him six sons namely Shyam Bihari, Kunj Bihari, Naubat, Brij Mohan, Ram Hit and Nand Kishor. Naubat died issueless and after death of his widow Smt. Sampatta inherited his share. Smt. Sampatta also died and at the time of her death, amongst the brothers, Nand Kishor alone was alive as such he inherited share of Naubat and his share has become 1/3 while remaining four branch had 1/6 each. Additional Munsif Faizabad, by his judgment dated 4.4.1955 passed preliminary decree holding share of Nand Kishor as 1/3 and Bhodar as 1/6. Additional Munsif Faizabad, by his judgment dated 4.4.1955 passed preliminary decree holding share of Nand Kishor as 1/3 and Bhodar as 1/6. The sons of Shyam Bihari, Kunj Bihari and Brij Mohan filed an appeal (registered as Civil Appeal No. 88 of 1955) from the preliminary decree as they were claiming that Smt. Sampatta widow of Naubat was alive and Naubat had adopted one Udit Narain. During pendency of the appeal, Bhodar died in December 1955. After death of Bhodar, Smt. Rajji filed an application for substituting her as the only heir of Bhodar and Smt. Pyari filed another application for substituting her as only heir of Bhodar before Appellate Court, claiming themselves as the daughter of Ram Hit and denying each other. As the suit was for partition and in order to pass preliminary decree, issue relating to inheritance of Bhodar was necessary to be decided, Appellate Court framed an issue in this respect and remitted to Trial Court for recording evidence and its findings. Before the Trial Court both the parties adduced their oral and documentary evidence and Trial Court after hearing the parties found that Smt. Rajji was not the daughter of Ram Hit and sister of Bhodar while Smt. Pyari was sister of Bhodar and inherited him. After receiving the evidence and finding of Trial Court, the appeal was heard by Appellate Court, who by judgment dated 29.11.1958 held that Smt. Pyari was heir of Bhodar and inherited his share in the estate. It has been further held that Smt. Sampatta widow of Naubat was not alive nor there was any adoption by her or her husband and her share was inherited by Nand Kishor. Preliminary decree of Trial Court was confirmed. Final decree dated 23.3.1960 was prepared accordingly and Smt. Pyari obtained possession of 1/6 share of Bhodar in ancestral property. 4. After death of Bhodar, Smt. Rajji filed a mutation application for recording her name as only heir of Bhodar and Smt. Pyari filed another mutation application for recording her name as only heir of Bhodar over sirdari property (acquired by Ram Hit through patta dated 10.7.1916). Both the cases were consolidated and tried together by Tahsildar, who by order dated 29.4.1957 held Smt. Pyari was heir of Bhodar, being his sister and not Smt. Rajji. Both the cases were consolidated and tried together by Tahsildar, who by order dated 29.4.1957 held Smt. Pyari was heir of Bhodar, being his sister and not Smt. Rajji. Smt. Rajji filed an appeal against the aforesaid order, which was dismissed by Additional Commissioner, by order dated 17.11.1957. Thus name of Smt. Pyari came to be recorded over bhumidhari as well as sirdari land of Bhodar, since then. 5. On 29.11.1961, Nand Kishor filed four suits under section 229-B/209 of U.P. Act No. 1 of 1951, for declaring himself as an heir of Bhodar and for ejectment of the petitioners, who were in possession of the land of Bhodar. In these suits, Smt. Pyari was not arrayed as the defendant. Thereafter Smt. Rajji filed other suits on 14.2.1962 under section 229-B/209 of U.P. Act No. 1 of 1951, against Smt. Pyari. The proceeding of these suits were stayed under section 10 C.P.C. Previous suits were initially dismissed by judgment dated 29.3.1966, however appeals of Nand Kishor was allowed on 3.10.1967 and the cases were remanded to Trial Court. During pendency of the appeals Nand Kishor died in the year 1966 and the respondents were substituted as his heirs. After remand, Judicial Officer by judgment dated 29.3.1971 held Nand Kishor as the heir of Bhodar. Smt. Pyari filed appeals from aforesaid decrees. In the meantime, the village was placed in consolidation operation by notification dated 3.9.1973 and the appeals alongwith suits were abated by order dated 11.1.1974. The aforementioned objections were filed under Section-9 of the Act thereafter. 6. The Consolidation Officer consolidated all the objections and tried together. On behalf the petitioners, apart from documentary evidence, Keshav Prasad, father of petitioner-1 and Daya Shankar, and Jhinku, marginal witnesses of sale deeds dated 22.11.1963 and 6.12.1963 and Ram Naresh son of Shiv Dayal were examined. Smt. Pyari did not enter the witness box and on her behalf Krishna Kant Mishra, claiming himself to be Power of Attorney holder of Smt. Pyari was examined. Consolidation Officer also appointed Advocate Commissioner for recording statement of Smt. Pyari but due to tactic of Krishna Kant Mishra, her statement could not be recorded. On behalf of the respondents, Raj Mani Mishra and Ganesh were examined. Consolidation Officer also appointed Advocate Commissioner for recording statement of Smt. Pyari but due to tactic of Krishna Kant Mishra, her statement could not be recorded. On behalf of the respondents, Raj Mani Mishra and Ganesh were examined. Consolidation Officer, by order dated 3.11.1979, held that an extract of Birth Register was filed showing that a son was born to Ram Hit, in August, 1899 but there is no evidence to show that any daughter was born to Ram Hit. Oral statements of Keshav, Ram Naresh and Krishna Kant Mishra was not sufficient to prove that Smt. Pyari was daughter of Ram Hit. Sale deeds dated 22.11.1963 and 6.12.1963 were for 20-7-15 bighas land but sale consideration of Rs. 4100/- alone was shown in it, which was inadequate sale consideration. Smt. Pyari, in her statement recorded before Judicial Officer 11.8.1961 had stated that she was blind. Although she was blind but this fact was not noticed by Sub-Registrar in the sale deeds dated 22.11.1963 and 6.12.1963, which shows that the sale deeds were executed by some imposter. Thumb impressions of Smt. Pyari on the sale deeds were not tallying with her thumb impressions made on Power of Attorney and her objection. Burden was upon the petitioners to produce Smt. Pyari in the Court. Bhumidhari certificate was obtained during pendency of the litigation. Otherwise also it itself does not confer any title. Nand Kishor inherited Bhodar as on the date of his death, he alone was alive amongst his brothers. On these findings, objections of the petitioners and Smt. Pyari were dismissed and objection of Nand Kishor was allowed and the names of the respondents were directed to be recorded over khata 22. 7. The petitioners filed their separate appeals (registered as Appeal Nos. 583, 584 and 585) from the aforesaid order. The appeals were consolidated and heard by Settlement Officer Consolidation, who by order dated 15.9.1996 held that although it was alleged that Smt. Pyari died in the year 1984 but she never appeared before Consolidation Officer which creates a reasonable doubt. Burden was upon the petitioners to produce her before Consolidation Officer. The petitioners failed to prove that Smt. Pyari was sister of Bhodar and findings of Consolidation Officer in this respect does not suffer from any illegality. On these findings, he dismissed the appeals. The petitioners filed a revision (registered as Revision No. 1822/238) from the aforesaid order. Burden was upon the petitioners to produce her before Consolidation Officer. The petitioners failed to prove that Smt. Pyari was sister of Bhodar and findings of Consolidation Officer in this respect does not suffer from any illegality. On these findings, he dismissed the appeals. The petitioners filed a revision (registered as Revision No. 1822/238) from the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 16.7.2001, held that Ramanand Pandey, father-in-law of Smt. Pyari executed a registered Will dated 31.3.1944, in which he had mentioned that Smt. Pyari was blind from about 20 years. Smt. Pyari also in her statement recorded before Judicial Officer on 11.8.1961 had stated that she was blind but in the sale deeds dated 22.11.1963 and 6.12.1963 allegedly executed by her, this fact was not noticed as such sale deeds are suspicious documents and the Courts below have not committed any illegality in ignoring it Ram Bux son of Brij Mohan, who was eldest in the family members of Ram Hit, in his affidavit and compromise filed in the suit under section 229-B/209 has stated that Smt. Pyari was daughter of Shyam Bihari. Admission of Ram Bux is a material evidence. Smt. Pyari has not inherited Bhodar as such sale deeds executed by her are void. On these findings the revision was dismissed. Hence this writ petition has been filed. 8. The Counsel for the petitioners submitted that during pendency of Civil Appeal No. 88 of 1955, Bhodar, who was respondent-2 in the appeal died in December 1955. Bhodar was plaintiff-2 in Regular Suit No. 540 of 1953, which was filed for partition of his 1/6 share in the ancestral property. After death of Bhodar, Smt. Rajji filed an application for substituting her as only heir of Bhodar and Smt. Pyari filed another application for substituting her as only heir of Bhodar before Appellate Court. As the suit was for partition as such in order to pass preliminary decree, issue relating to inheritance Bhodar had become necessary to be decided. Appellate Court therefore framed an issue in respect of heirship of Bhodar and remitted to Trial Court for recording evidence and its findings. As the suit was for partition as such in order to pass preliminary decree, issue relating to inheritance Bhodar had become necessary to be decided. Appellate Court therefore framed an issue in respect of heirship of Bhodar and remitted to Trial Court for recording evidence and its findings. Before Trial Court both the parties adduced their oral and documentary evidence and Trial Court after hearing the parties found that Smt. Rajji was not the sister of Bhodar while Smt. Pyari was sister of Bhodar and inherited him. After receiving the evidence and finding of Trial Court, the appeal was heard by Appellate Court, who by judgment dated 29.11.1958 held that Smt. Pyari was heir of Bhodar. This judgment has become final and res-judicata between the parties. Sirdari property, which was exclusively recorded in the name of Bhodar was came to be recorded in the name of Smt. Pyari, by order of Tahsildar, dated 29.4.1957 The appeal filed by Smt. Rajji filed was dismissed by Additional Commissioner, by order dated 17.11.1957. No suit for ejectment of Smt. Pyari was filed within three years, which was limitation at that time. The Consolidation Authorities have illegally ignored it. Nand Kishor was respondent-1 in the appeal and after death of Bhodar did not claim himself as an heir. His subsequent suit/objection claiming himself as an heir of Bhodar is barred under Order II Rule 2 C.P.C. as well as on the principle of estoppel. Smt. Pyari executed sale deeds dated 22.11.1963 and 6.12.1963 in favour of the petitioners. Due execution of the registered sale deeds were proved by marginal witnesses Daya Shankar and Jhingan. In consolidation, Krishna Kant Mishra, who was husband's brother of Smt. Pyari, on the basis of her alleged Power of Attorney filed objections against the petitioners. He therefore, adopted all tactics and prevented Smt. Pyari to come before Consolidation Officer or record her statement. Advocate Commissioner was also issued by Consolidation Officer for recording statement of Smt. Pyari, even then he avoided to record her statement. In such circumstance, no adverse inference can be drawn against the petitioners. Registered sale deed cannot be ignored for inadequate sale consideration. Advocate Commissioner was also issued by Consolidation Officer for recording statement of Smt. Pyari, even then he avoided to record her statement. In such circumstance, no adverse inference can be drawn against the petitioners. Registered sale deed cannot be ignored for inadequate sale consideration. Similarly in the objections filed by Krishna Kant Mishra, on behalf of Smt. Pyari, her thumb impressions on the sale deeds were not denied rather it was stated that thumb impressions were obtained on the pretext for doing pairavee on her behalf in the cases against her. On these allegations sale deeds were voidable and Consolidation Authorities were not competent to ignore it. On the one hand Krishna Kant Mishra adduced evidence to prove that Smt. Pyari was blind from long before the sale deeds executed in favour of the petitioners but he himself filed objection in consolidation on the basis of Power of Attorney executed by Smt. Pyari. The Consolidation Authorities have illegally not considered this relevant fact. He relied upon the judgment of Supreme Court in Dashrath Rao Kate v. Brij Mohan Srivastav 2010 (85) AIC 130 (SC) : 2010 (78) ALR 195 (SC) : (2010) 1 SCC 277 . He submitted that the orders of the Consolidation Authorities are illegal. 9. In reply to the aforesaid arguments, the Counsel for the respondents submitted that Order XXII C.P.C. provides the provisions for substituting the heirs and legal representatives of deceased party. Purpose of substitution is to continue with the proceeding, pending on the date death of the parties and to enable the legal representative to represent the estate of deceased party. If any dispute arises as to who is legal representative of the deceased party, Order XXII Rule 5 C.P.C. requires the Court to determine it. Determination under Order XXII Rule 5 C.P.C. is summary in nature and not final decision on the issue. Order passed on the substitution application, determining the legal representative, has no effect of final decision or operates as res-judicata. Apart from the order passed in substitution application in partition suitppeal, the petitioners or for that purpose Smt. Pyari, who had filed separate objection during consolidation, failed to prove that Smt. Pyari was daughter of Ram Hit. Admission of Ram Bux, an eldest member of the family of Ram Hit in his affidavit and compromise that Smt. Pyari was daughter of Shyam Bihari, has been rightly relied upon by respondent-1. Admission of Ram Bux, an eldest member of the family of Ram Hit in his affidavit and compromise that Smt. Pyari was daughter of Shyam Bihari, has been rightly relied upon by respondent-1. Smt. Pyari deliberately avoided to appear before the Court and support her objection. The petitioners are claiming title through Smt. Pyari as such burden was upon them also to prove the title of Smt. Pyari. The Consolidation Authorities have rightly drawn adverse inference. Smt. Pyari had no interest over the land in dispute as such sale deeds executed by her in favour of the petitioners are null and void. Otherwise also, the Consolidation Authorities found that sale deed was executed by some imposter of Smt. Pyari, who was blind from long before the sale deeds. The sale deeds were void documents and it was well within the jurisdiction of consolidation authorities to ignore it. He relied upon judgments in Jaladi Suguna v. Satya Sai Central Trust AIR 2008 SC 2866 , Raj Bahadur v. Narayan Prasad AIR 1926 All 439 (DB), Ram Kalap v. Banshidhar 1958 ALJ 8 (DB), Deewan Singh v. Bela Singh 2004 (22) LCD 1720 , Ashwani Kumar v. Smt. Vidya AIR 2007 All 105 , Smt. Shanti Devi v. DDC and others 2012 (117) RD 149 , Zalim v. Babu AIR 1937 Oudh 220 (FB), Mohinder Kaur v. Piara Singh AIR 1981 Punjab & Haryana 130 (FB), Vijayalakshmi Jayaram v. M.R. Parasuram AIR 1995 A.P. 351 (DB), Manippa Nadar v. K.V. Doraipandi Nadar AIR 1988 Mad. 117 , in which it has been held that the determination as to who is the legal representative under Order XXII, Rule 5 C.P.C. will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject-matter of the suit, vis-à-vis other rival claimants to the estate of the deceased. Order passed under Order XXII Rule 5 C.P.C. does not operate as res-judicata in subsequent proceedings. The following cases were relied upon, in which it has been held that consolidation authorities have jurisdiction to ignore void documents. It would adding an insult to injured, if such person is asked to go to Civil Court and get a void document cancelled. Order passed under Order XXII Rule 5 C.P.C. does not operate as res-judicata in subsequent proceedings. The following cases were relied upon, in which it has been held that consolidation authorities have jurisdiction to ignore void documents. It would adding an insult to injured, if such person is asked to go to Civil Court and get a void document cancelled. Gorakh Nath Dube v. Hari Narayan Singh 1973 RD 423 (SC), Dularia Devi v. Janardan Singh AIR 1990 SC 1173 , U.P. State Sugar Corporation v. DDC and others 2000 RD 165 (SC), Prem Singh v. Birbal 2006 (101) RD 260 (SC) : 2006 (42) AIC 84 (SC) : 2006 (64) ALR 162 (SC), Gaon Sabha v. Ram Manohur (2010) 12 SCC 384 , Ram Padarath v. II ADJ 1989 RD 21 , Dev Nath v. DDC and others 2005 (99) RD 109, and Yanala Malleskwari v. Smt. Ananthula Sayamma AIR 2007 AP 57 . He submitted that judgments of Consolidation Authorities do not suffer from any illegality. The writ petition has no merit and is liable to be dismissed. 10. I have considered the arguments of the Counsel for the parties and examined the record. First question arises for consideration as to whether judgment and decree of Civil Court dated 29.11.1958 holding that Smt. Pyari was sister and heir of Bhodar, operates as res-judicata against Nand Kishor. Relevant provisions Code of Civil Procedure, 1908 are quoted below 11. Res judicata.--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation IV.--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Order XXII Rule 5. Explanation IV.--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Order XXII Rule 5. Determination of question as to legal representative.--Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefore, and the Appellate Court may take the same into consideration in determining the question. 11. Proviso to Rule 5 of Order XXII C.P.C. was added by Act No. 104 of 1976 w.e.f. 1.2.1977. In Jaladi Suguna's (supra) Supreme Court has held that provisions of Order XXII Rule 5 C.P.C. are mandatory. Supreme Court in Nazoal Kishor Patel v. Smt. Indrapati Devi JT 1991 (5) SC 212, held that order passed under Order XXII Rule 5 C.P.C., unless put to issue as to who was the heir to the estate of the deceased cannot be enlarged. In that case Supreme Court upheld the order to High Court to decide heirship of a deceased party in partition suit after framing issue and taking evidence of the parties finally. Thus, if heirship has been decided after framing the issue and giving opportunity of evidence and hearing then such an order is not a simple order on the substitution application determining the question of legal representative. Admittedly Bhodar died on during pendency of Civil Appeal No. 88 of 1955 in December, 1955. This appeal was arising out of partition suit, in which Bhodar was co-plaintiff alongwith Nand Kishor. On the dispute being raised relating to heirship of Bhodar, Appellate Court framed issue relating to heirship of estate of Bhodar and remitted to Trial Court to record evidence and finding on it as the suit was a suit for partition and it was necessary to pass the preliminary decree. Trial Court recorded oral and documentary evidence of the parties and found that Smt. Pyari was sister and heir of Bhodar. Trial Court recorded oral and documentary evidence of the parties and found that Smt. Pyari was sister and heir of Bhodar. Thereafter, Appellate Court, while deciding the appeal finally by its judgment dated 29.11.1958 held that Smt. Pyari was heir of Bhodar. This judgment and decree of Appellate Court in partition suit has not been challenged and has become final. As Proviso to Rule 5 of Order XXII C.P.C. was not there at that time, it cannot be said that issue was remitted under Proviso to Rule 5 of Order XXII C.P.C. Nand Kishor, who was co-plaintiff/respondent in the appeal alongwith Bhodar, who now claims himself as an heir of Bhodar in subsequent suit and objection in consolidation, did not claim himself as heir of Bhodar at that time, although cause of action in this respect arose to him also on the date of death of Bhodar. In view of Explanation IV to section 11 C.P.C. judgment and decree of Appellate Court dated 29.11.1958 is res-judicata between the parties including Nand Kishor. It was not a simple order relating to determination of the legal representative of a deceased plaintiff-respondent but is a decree in partition suit on the basis of which final decree in respect of 1/6 share of Bhodar was framed in favour of Smt. Pyari and she was given separate possession over it. 12. In Dashrath Rao Kate v. Brij Mohan Srivastav 2010 (85) AIC 130 (SC) : 2010 (78) ALR 195 (SC) : (2010) 1 SCC 277 , relied upon by the Counsel for the petitioners, Supreme Court held that it cannot be disputed that normally, an enquiry under Order XXII Rule 5 CPC is of a summary nature and findings therein cannot amount to res judicata, however, that legal position is true only in respect of those parties, who set up a rival claim against the legatee. For example, here, there were two other persons, they being Ramesh and Arun Kate, who were joined in the civil revision as the legal representatives of Sukhiabai. The finding on the Will in the order dated 9.9.1997 passed by the Trial Court could not become final as against them or for that matter, anybody else, claiming a rival title to the property vis-à-vis the appellant herein, and therefore, to that extent the observations of the High Court are correct. The finding on the Will in the order dated 9.9.1997 passed by the Trial Court could not become final as against them or for that matter, anybody else, claiming a rival title to the property vis-à-vis the appellant herein, and therefore, to that extent the observations of the High Court are correct. However, it could not be expected that when the question regarding the will was gone into in a detailed enquiry, where the evidence was recorded not only of the appellant, but also of the attesting witness of the will and where these witnesses were thoroughly cross-examined and where the defendant also examined himself and tried to prove that the Will was a false document and it was held that he had utterly failed in proving that the document was false, particularly because the document was fully proved by the appellant and his attesting witness, it would be futile to expect the witness to lead that evidence again in the main suit. 13. Smt. Pyari executed sale deeds dated 22.11.1963 and 6.12.1963 in favour of the petitioners, after obtaining bhumidhari certificate of sirdari land. Due execution of registered sale deeds were proved by marginal witnesses Daya Shankar and Jhingan. In consolidation, Krishna Kant Mishra, who was husband's brother of Smt. Pyari, on the basis of her alleged Power of Attorney filed objections, in which thumb impressions of Smt. Pyari, on the sale deeds were not denied rather it was alleged that thumb impressions were obtained on the pretext for doing pairavee on her behalf in the cases against her. On these allegations sale deeds were voidable and not void. The Consolidation Authorities were not competent to ignore it as held by Full Bench of this Court in Ram Nath v. Munna 1976 RD 220 (FB). Thereafter, Krishna Kant Mishra adopted all tactics and prevented Smt. Pyari to come before Consolidation Officer or record her statement. Advocate Commissioner was also issued by Consolidation Officer for recording statement of Smt. Pyari, even then he had successfully avoided to record her statement. It was Krishna Kant Mishra, who secured Power of Attorney of Smt. Pyari and took chance to deny the sale deed executed by her. After loosing from Consolidation Officer, he disappeared and did not contest further. Due to non-appearance of Smt. Pyari before Consolidation Officer, only inference arises that she could not dare to deny execution of the sale deeds. It was Krishna Kant Mishra, who secured Power of Attorney of Smt. Pyari and took chance to deny the sale deed executed by her. After loosing from Consolidation Officer, he disappeared and did not contest further. Due to non-appearance of Smt. Pyari before Consolidation Officer, only inference arises that she could not dare to deny execution of the sale deeds. In such circumstance, no adverse inference can be drawn against the petitioners. The Consolidation Authorities have wrongly drawn adverse inference against the petitioners. 14. The petitioners were family member of Smt. Pyari and as admitted by Krishna Kant Mishra they were cultivating the land on behalf of Bhodar and thereafter on behalf of Smt. Pyari. In such circumstances, inadequacy of sale consideration is immaterial. Supreme Court in Vidhyadhar v. Manikrao 2000 (Suppl.) RD 399 (SC) : AIR 1999 SCC 1441, held that the High Court was wholly in error in coming to the conclusion that there was no sale as only a sum of Rs. 500 was paid to defendant 2 and the balance amount of Rs. 4500 was not paid. Since the title in the property had already passed, even if the balance amount of sale price was not paid, the sale would not become invalid. The property sold would stand transferred to the buyer subject to the statutory charge for the unpaid part of the sale price. Thus inadequate sale consideration does not make the sale deed as void. Krishna Kant Mishra on the one hand relied upon the Power of Attorney executed by Smt. Pyari but at the same time he raised a contradictory plea that Smt. Pyari being blind was not in position to execute sale deed and successfully prevented Smt. Pyari in coming to Court. Admittedly, the petitioners were in possession of the land in dispute. Nand Kishor himself filed suits for ejectment of the petitioners admitting their possession. Krishna Kant Mishra also admitted possession of the petitioner. Otherwise also found during partial as well as proved by the petitioners. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The orders of Consolidation Officer dated 3.11.1979, Settlement Officer Consolidation dated 15.2.1996 and Deputy Director of Consolidation dated 16.7.2001 are set aside. The Consolidation Officer is directed to record the names of the petitioners on the basis of their sale deeds over the land covered in their sale deeds.