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2014 DIGILAW 3811 (ALL)

Bhagwandas v. D. D. C.

2014-12-22

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri Abhishek Kumar, learned Counsel for the petitioners and learned Standing Counsel for the State-respondents. The writ petition arises out of an objection under section 9A-2 of the Consolidation of Holdings Act filed by the contesting respondents and is directed against the orders dated 1.1.2014 and 6.9.2011 passed by the respondents 1 and 2 respectively. 2. The writ petition pertains to land of Khata Nos. 269 and 270, which was admittedly the land of one Budhasen son of Angan Lal and involves a dispute of his succession. 3. The objection under section 9A-2 was filed by the predecessor in interest of the respondents, namely, Narendra, claiming on the basis of a registered Will executed in his favour by Budhasen on 1.2.1985. 4. The petitioners on the other hand claimed succession in accordance with the provisions of section 171 of the U.P. Zamindari Abolition and Land Reforms Act. Their contention is that the Will set up by Narendra, is a forged and fictitious document. 5. The Consolidation Officer decided the objection in favour of the petitioners. The Settlement Officer, Consolidation accepted the Will in favour of Narendra and allowed the appeal filed by him. This order has been affirmed by the Revisional Court and hence this writ petition. 6. Parties had also litigated earlier to the filing of objection under section 9A-2. The petitioners had filed a suit No. 225 of 1984 for cancellation of the Will in question. The suit was dismissed by the Trial Court on 29.4.1988. The Appeal No. 30 of 1988 filed by the petitioner was dismissed on 8.2.1991. The consequential Second Appeal No. 873 of 1991 filed by the petitioners was also dismissed on 17.8.1995. The petitioners filed review application, which was also dismissed by this Court. Narendra is also stated to have filed a suit for permanent injunction, which was decreed on 13.12.1994 and this judgment in decree is also said to have become final between the parties. 7. Learned Counsel for the petitioners has submitted that the Will in question is dated 1.2.1985. Budhasen, the testator, died on 2.1.1986. The notification under section 4 of the U.P. Consolidation of Holdings Act was issued on 15.9.1986. The suit by the petitioners for cancellation of the will was filed in 1986 and the same was decided on 29.4.1988. 7. Learned Counsel for the petitioners has submitted that the Will in question is dated 1.2.1985. Budhasen, the testator, died on 2.1.1986. The notification under section 4 of the U.P. Consolidation of Holdings Act was issued on 15.9.1986. The suit by the petitioners for cancellation of the will was filed in 1986 and the same was decided on 29.4.1988. The judgment of the First Appellate Court is dated 8.2.1991 while that of the Second Appellate Court is dated 12.10.2012. 8. On the strength of the dates noted above, it has been submitted by learned Counsel for the petitioners that the question in the suit was as regards the validity of the Will, and the judgments rendered by the Civil Court in ignorance of the notification under section 4 of the Consolidation of Holdings Act would not operate as res judicata. He has therefore submitted that since the Will pertained to agricultural property, the Revenue Court alone had jurisdiction to decide the matter and the same could not have been decided by the Civil Court, and the judgments passed in the suit were therefore not binding upon the Consolidation Courts. The Settlement Officer, Consolidation has therefore wrongly and illegally decided the appeal in favour of the contesting respondents relying upon the decisions of the Civil Court, and this approach is patently illegal. 9. In support of his contention, learned Counsel for the petitioners has cited the following decisions "1. Bahadur v. Bachai 1962 ALJ 17, (Paragraphs 6 and 11) 2. Amar Nath v. District Judge 1988 RD 284, (Paragraph 2 and penultimate paragraph) 3. Fida Hussain v. Moradabad Development Authority 2011 SCW 4542, (Paragraph 15) 4. Gorakh Rai v. Civil Judge 2006 (100) RD 438, (Paragraphs 19 and 24)." 10. In the case of Gorakh Rai (supra), the issue involved was whether a suit for permanent injunction would abate under section 5 of the U.P. Consolidation of Holdings Act, on the start of consolidation operations. The case of Amar Nath (supra) also deals with a situation where a suit was ordered to abate under section 5of the Consolidation of Holdings Act on the ground that on the basis of the plaint allegation, the Will sought to be cancelled therein was a void document. The case of Gorakh Rai (supra) is on different facts and has no application in the instant case. 11. The case of Gorakh Rai (supra) is on different facts and has no application in the instant case. 11. The case of Amar Nath (supra) also deals with a question of abatement of a suit for the cancellation of a Will, which was alleged to be a void document. On the strength of this authority, learned Counsel for the petitioners has submitted that since it was held that a suit for cancellation of a void Will regarding agricultural property would abate and, since it is the case of the petitioners that the will in favour of Narendra was a forged and fabricated document and, therefore void, the judgment passed in such suit was not binding upon the consolidation authorities and they have therefore wrongly held against the petitioners relying upon the decisions rendered by the Civil Court in this regard. 12. The crux of the argument therefore is that the consolidation/revenue Courts alone are competent to examine the validity of a Will pertaining to agricultural property and any decision of the Civil Court in this regard is without jurisdiction and therefore has to be ignored. 13. In this connection, learned Counsel for the petitioners has relied upon paragraph 16 of the judgment in the case of Fida Hussain (supra), which is extracted below "With regard to the contention that the decision of the Court in Gafar did not operate as res judicta for the present batch of cases, we are of the view that the principles of res judicata would apply only when the lis was inter partes and had attained finality on the issues involved. The said principles will, however, have no application inter alia in a case where the judgment and/or order had been passed by a Court having no jurisdiction thereof and/ox involving a pure question of law. The principle of res judicata will, therefore, have no application in the facts of the present case." 14. The Full Bench decision in the case of Ram Padarath has held that a suit for cancellation of a void or voidable document is cognizable by the Civil Court unless and until a declaration regarding right title or interest in agricultural land is also necessarily required, in which case, the relief of cancellation is redundant. 15. The Full Bench decision in the case of Ram Padarath has held that a suit for cancellation of a void or voidable document is cognizable by the Civil Court unless and until a declaration regarding right title or interest in agricultural land is also necessarily required, in which case, the relief of cancellation is redundant. 15. The contention of the learned Counsel for the petitioners that the judgments of the Civil Court in the suit for cancellation of the Will were not binding as res judicata, may have some substance. However, this question is not being specifically decided because the writ petition can be disposed of finally on another point. 16. The contention of learned Counsel for the petitioners is that the question regarding validity of a Will regarding agricultural property must necessarily be decided by the revenue or the consolidation Courts alone. 17. Perusal of the judgment passed by the Consolidation Officer reveals that the original registered Will in question, executed by Budhasen in favour of Narendra was filed before the Consolidation Officer. It is also clear from the said judgment that Vijay Ram Sharma, one of the marginal witnesses of the Will was examined and his testimony finds mention in the order, on page 42 of the paper book. He has stated that the Will was written down in black ink. The scribe read out the same to Budhasen in the presence of the witnesses, whereupon Budhasen affixed his signature at three places on the first page and at two places on the second page and thereafter he himself (i.e. Vijay Ram Sharma) and the other witnesses signed the same or put their thumb impressions and thereafter the Will was got registered by Budhasen. 18. Although, the Settlement Officer, Consolidation has not considered these aspects of the matter and has decided the appeal in favour of the contesting respondents relying only upon the judgments passed by the Civil Court, the Deputy Director of Consolidation has however recorded a categorical finding in the impugned order that the will stood proved in accordance with the provisions of section 68 of the Evidence Act, in view of the statement of the marginal witness thereof. 19. The Deputy Director of Consolidation has among other reasons also found that the will stood proved and that the Consolidation Officer had wrongly discarded the same. 19. The Deputy Director of Consolidation has among other reasons also found that the will stood proved and that the Consolidation Officer had wrongly discarded the same. This finding was within the competence of the Deputy Director of Consolidation in view of explanation 3 of section 48 of the Act, which empowers the Deputy Director of Consolidation to record findings, both on facts and on law contrary to what have been recorded by the subordinate consolidation authorities, upon an appreciation of the evidence available on record. 20. The only ground taken in the writ petition in this regard is that the finding of the Deputy Director of Consolidation is not a very elaborate finding and has been recorded in a cursory manner. 21. It is true that the finding is not an elaborate one but it is a finding nonetheless and it categorically states that the Will stood proved by the statement of the marginal witness and that the Consolidation Officer had wrongly discarded the same. 22. Under the facts and circumstances and for the reasons given above, this Court is of the considered opinion that the Will set up by the contesting respondents has been accepted by the Deputy Director of Consolidation as it stood proved as per the requirements of section 68 of the Evidence Act. I find no illegality in this finding merely because other reasons have also been given for accepting the Will and these reasons are the history of the litigation before the Civil Court. Mention of such litigation before the Civil Court or the judgments rendered therein will not detract from the categorical finding, that has been recorded for accepting the Will in question, as already elaborated hereinabove. Accordingly, the writ petition is found to be devoid of merits and is therefore dismissed.