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2014 DIGILAW 3399 (ALL)

Shiv Pujan v. Deputy Director of Consolidation Faizabad

2014-11-13

SUDHIR KUMAR SAXENA

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JUDGMENT Sudhir Kumar Saxena,J.: - Heard Sri I.D. Shukla, learned counsel for the petitoner and Sri Umesh Chandra Pandey, learned counsel for the caveator. 2. This writ petition has been filed challenging the order dated 29.10.2014 passed by Deputy Director of Consolidation, Faizabad whereby he has rejected the application filed on behalf of the petitioners for comparison of thumb impression. 3. Briefly stated facts of the case are that petitioners claimed their title on the basis of registered will while Smt. Shanti Devi (opposite party no. 2) claimed her title on the basis of unregistered will, which she claims to have been executed subsequently. Consolidation Officer upheld the will executed in favour of Smt. Shanti Devi and decided the objection accordingly. This order was challenged before the Settlement Officer Consolidation, who upheld the order passed by the Consolidation Officer. 4. A revision has been filed against these two orders before the Deputy Director of Consolidation, which is pending. During the pendency of the revision, application has been filed by the petitioner for comparison of thumb impression available on the registered will as well as sale deed etc. This application has been rejected by the revisional court. This very order has been impugned in this writ petition. 5. It is vehemently submitted by Sri I.D. Shukla, learned counsel for the petitioner that his application with the same effect was dismissed by Consolidation Officer as well as the Settlement Officer Consolidation, without giving any opportunity of hearing. Will executed in favour of Smt. Shanti Devi does not contain thumb impression of Sri Shiv Bahadur Singh. 6. Sri Umesh Chandra Pandey, learned counsel for the opposite party submitted that application seeking comparison of thumb impression was moved before the Consolidation Officer after the arguments were heard therefore, Consolidation Officer has not committed any error in rejecting the application. Similarly, appellate authority also rejected the application moved with the same prayer. These orders were not challenged before any Court as such, petitioners are precluded from challenging these orders. 7. It is true that principles of res judicata are applicable in the intermediate proceedings also. 8. In the instant case, this Court finds that order rejecting the application being interlocutory in nature could not have been challenged in appeal as such, that court was not competent to hear and finally decide the matter. 7. It is true that principles of res judicata are applicable in the intermediate proceedings also. 8. In the instant case, this Court finds that order rejecting the application being interlocutory in nature could not have been challenged in appeal as such, that court was not competent to hear and finally decide the matter. Interest of justice always warrants decision after giving full opportunity of hearing to the parties. 9. Consequently, I direct Deputy Director of Consolidation to order the comparison of thumb impression available on the will filed by Smt. Shanti Devi with other admitted thumb impressions on the cost payable by petitioner. 10. Petitioner will take necessary steps within fifteen days from today and revision will be decided within three months from the date report from the expert is received. 11. Subject to above, writ petition is dismissed.