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2015 DIGILAW 128 (UTT)

ISHAQ v. DEPUTY DIRECTOR OF CONSOLIDATION/COLLECTOR, HARIDWAR

2015-03-09

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. (Oral) 1. Rejoinder affidavit filed in Court today is taken on record. 2. Present petition is filed assailing the impugned judgment and order dated 19.12.2002 passed by the Deputy Director of Consolidation/Collector, Haridwar in Revision No. 464 of 2002, Janni v. Ishaq and others. 3. The brief facts of the present case, inter alia, are that undisputedly Kasim Ali, the then bhumidhar of the property in question, expired on 6.4.1982; Kasim Ali was the son of Hemu and was unmarried and issueless; Sidi was the real sister of Kasim Ali while Ishaq and Akhtar (present petitioners) are the sons of Sidi, the real sister of Kasim Ali (deceased). 4. After the death of Kasim Ali, dispute arose about the inheritance of the property of Kasim Ali. Sidi applied for mutation of her name in the revenue record being real sister and sole legal heir of Kasim Ali while Janni, father of respondent no. 10 and husband of respondent no. 9, and other respondents applied for mutation in the light of alleged unregistered Will dated 26.6.1980. Learned Consolidation Officer was pleased to direct to mutate the names of respondents pursuant to the Will in question dated 26.6.1980. Matter was carried in appeal by the petitioners, herein, before the Settlement Officer (Consolidation). Appeal was allowed by the Appellate Authority/Settlement Officer (Consolidation), vide judgment and order dated 30.1.2002 disbelieving the Will and directing mutation in favour of the petitioners being sons of real sister of the deceased. Feeling aggrieved, private respondents, herein, preferred statutory revision under Section 48 of the U.P. Consolidation of Holdings Act before the Deputy Director of Consolidation, Haridwar, which was allowed vide impugned judgment and order dated 19.12.2002. Feeling aggrieved, petitioners have invoked jurisdiction of this Court under Article 226/227 of the Constitution of India. 5. I have heard Mr. Nagesh Aggarwal and Mr. Rajendra Singh, learned counsel for the petitioners, Mr. A.K. Sharma, learned counsel for the private respondents and Mr. Gajendra Tripathi, Brief Holder for respondent nos. 1, 2 & 3. 6. There is no dispute about the date of death of the then Bhumidhar Sri Kasim Ali, who expired on 6.4.1982. 5. I have heard Mr. Nagesh Aggarwal and Mr. Rajendra Singh, learned counsel for the petitioners, Mr. A.K. Sharma, learned counsel for the private respondents and Mr. Gajendra Tripathi, Brief Holder for respondent nos. 1, 2 & 3. 6. There is no dispute about the date of death of the then Bhumidhar Sri Kasim Ali, who expired on 6.4.1982. Undisputedly, as per Section 171 of the U.P.Z.A. & L.R. Act, at it stood in the year 1982 when Kasim Ali expired, in the absence of son, widow, mother and father, widow or unmarried daughter, married daughter, brother and unmarried sister, son’s daughter, father’s mother and father’s father, daughter’s son, the only legal heir would be married sisters. 7. Undisputedly, Sri Kasim Ali died unmarried and issueless and was not having any real brother or parents alive at the time of his death. Undisputedly, Janni is the son of Gulam Nabi, who was son of Nizamu and Nizamu was the real brother of Hemu, father of Kasim Ali, therefore, Janni cannot be said to be real nephew (brother’s son) of Kasim Ali. 8. Specimen signatures of Kasim Ali were sent for comparison to handwriting and fingerprints expert Sri Balraj Singh Tomar, who has opined that disputed thumb impression of Kasim Ali on the disputed Will does not match with the specimen signature of Kasim Ali. Undisputedly, respondents did not examine any other handwriting and fingerprints expert to rebut the opinion given by Sri Balraj Singh Tomar before the Consolidation Authorities. Any other opinion submitted in any other litigation shall have no relevance before the Consolidation Authorities. There is nothing on record to point out as to why Sri Kasim Ali would have ignored his natural heir i.e. Sidi, who is the real sister of Kasim Ali and have executed the Will in favour of Janni and the sons of Janni, who otherwise do not fall within the definition of “legal heir” as defined under Section 171 of the U.P.Z.A. & L.R. Act. 9. Although, revisional powers under Section 48 of the U.P. Consolidation of Holdings Act are wide enough, however, should be exercised more sparingly and more carefully. 9. Although, revisional powers under Section 48 of the U.P. Consolidation of Holdings Act are wide enough, however, should be exercised more sparingly and more carefully. While exercising the revisional power under Section 48 of the Act, Revisional Court, ordinarily, should not disturb the finding of fact recorded by the Appellate Court or both the courts below unless ofcourse some perversity is observed by the Revisional Court in the finding of Appellate Court. Even if two views are possible on the same set of evidence, the view adopted by the lower court should be allowed to prevail by the Revisional Court. 10. In view of the fact that there is no handwriting and fingerprint expert report to disprove the report of Sri Balraj Singh Tomar, as submitted by the petitioners before the Consolidation Authorities, Revisional Court was not justified ignoring the report/opinion of the fingerprint and handwriting expert Sri Balraj Singh Tomar. 11. Consequently, present petition succeeds and is allowed. Impugned judgment and order is hereby set aside. Judgment and order passed by the learned Appellate Court is hereby restored. 12. No order as to costs.