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2015 DIGILAW 1461 (ALL)

Roopmanjari v. D. D. C.

2015-05-29

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. 1. Heard learned Counsel for the petitioner and Sri Neeraj Agarwal for the contesting respondents. The petition arises out of proceedings under section 12 of the U.P. Consolidation of Holdings Act and is directed against the orders passed by the Settlement Officer Consolidation dated 1.12.1982 and that of the Deputy Director of Consolidation dated 13.5.1986. The dispute in the writ petition pertains to Chak No. 172 of village Ranjitpur, Pargana Akbarpur, District Kanpur recorded in the name of Rajjo Kunwari widow of Vishambhar. 2. Rajjo Kunwari died on 25.5.1978. Thereafter the respondent No. 3, Dinesh Chand, filed an objection under section 12 on 28.8.1978 claiming to be the heir of the deceased. Earlier to this application an application had been filed by the petitioner on 15.8.1978 claiming mutation in her name as also her sister Vijay Laxmi, respondent No. 4. Dinesh Chand respondent No. 3 is the son of Vijay Laxmi. The claim of the petitioner was based on succession while the claim of Dinesh Chand was based on an alleged Will dated 15.5.1978 which was got registered on 16.10.1978 after the death of Rajjo Kunwari. The case of the petitioner is that the alleged Will is forged. 3. The Consolidation Officer consolidated the two objections and vide order dated 20.8.1982 discarded the Will and ordered that the petitioner and her sister, respondent No. 4 be mutated. The resultant appeal filed by the Dinesh Chand was allowed by the Settlement Officer Consolidation on 1.12.1982 which order has been affirmed by the revisional Court by its order dated 13.5.1986. Hence this writ petition challenging the appellate and revisional orders. 4. It has been submitted by learned Counsel for the petitioner that the Will in question which has been accepted by the two Courts below was a forged and fabricated document. In proceedings under section 145 Cr.P.C. the mother of the respondent No. 3 namely Vijay Laxmi, sister of the petitioner had filed an affidavit alleging that the petitioner and she, Vijay Laxmi, were the heirs of Smt. Rajjo Kunwari and were in possession over the land recorded in her name. This circumstance was taken into account by the Consolidation Officer while discarding the Will. 5. It has further been submitted that the original Will was never filed, and only a certified copy of the Will was produced. This circumstance was taken into account by the Consolidation Officer while discarding the Will. 5. It has further been submitted that the original Will was never filed, and only a certified copy of the Will was produced. This secondary evidence could not have been looked into because only a bald assertion was made that the original Will had been lost while travelling by train. No evidence was produced to prove this fact. No First Information Report was lodged nor any evidence was adduced to prove the loss of the original Will. It is therefore, contended that the Courts below have committed manifest illegality in caking into consideration the secondary evidence and deciding the case on its basis. Even otherwise, the secondary evidence, namely the certified copy of the registered Will, was not proved in accordance with section 68 of the Evidence Act. No reason has been assigned for considering the secondary evidence. 6. Lastly, it has been contended that the Settlement Officer Consolidation as also the Deputy Director of Consolidation have failed to advert to the findings returned by the Consolidation Officer while discarding the Will and there findings have not been specifically reversed while passing a judgment of reversal. 7. Sri Neeraj Agarwal, learned Counsel for the respondent has submitted that the respondent No. 3 had categorically stated in his oral testimony that the original Will had been lost while travelling by train. It was further stated in the oral testimony that an attempt was made to lodge an FIR but the police authorities failed to lodge the report. He further submits that the Court after hearing the parties, permitted the secondary evidence, namely certified copy of the registered Will, to be brought on record. This secondary evidence was duly considered and the Will was found to be proved on the basis of oral testimony of one of the marginal witness as also the scribe thereof. The findings of the two Courts below have been recorded after appreciation of the evidence on record. 8. It is also contended that the submissions made by learned Counsel for the petitioner pertain to appreciation of evidence. The writ Court can interfere only if it is shown that the findings returned are perverse. No such plea has been raised in the writ petition nor has any such submission been made by learned Counsel for the petitioner. 9. 8. It is also contended that the submissions made by learned Counsel for the petitioner pertain to appreciation of evidence. The writ Court can interfere only if it is shown that the findings returned are perverse. No such plea has been raised in the writ petition nor has any such submission been made by learned Counsel for the petitioner. 9. As regards the affidavit filed by Vijay Laxmi the mother of respondent No. 3, in proceedings under section 145 Cr.P.C. learned Counsel for the respondent has submitted that these were criminal proceedings and in any case the respondent No. 3 was not a party to the proceedings and therefore the averments in the affidavit would not bind the respondent No. 3. Since the secondary evidence had been permitted by the Court it only remained to be seen as to whether the Will was proved in accordance with section 68 of the Evidence Act. Once the Will was proved, the Courts below were bound to rule in favour of the respondent and this is precisely what has been done by the Courts below. He therefore submits that the petition merits dismissal. 10. I have considered the submissions made by learned Counsel for the parties and have perused the record. The order of the Settlement Officer Consolidation specifically records that the Court permitted the respondent to adduce secondary evidence. Thereafter, on consideration of the statement of the marginal witness as also the scribe of the Will the appellate Court has accepted the Will. 11. I agree with the submissions of learned Counsel for the respondents that the findings returned by the appellate Court are findings recorded upon an appreciation of evidence available on record. 12. It is settled law that if upon appreciation of the evidence available on record, two views are possible and the Court take a particular view, the same cannot be faulted with only, on the ground that a different or contrary view could also have been taken. Such being the settled legal position, the submissions of learned Counsel for the petitioner are submissions relating to the appreciation of evidence which cannot be a ground for interference by this Court, in its writ jurisdiction. Moreover, it has not been submitted that the findings are in any way perverse. Such being the settled legal position, the submissions of learned Counsel for the petitioner are submissions relating to the appreciation of evidence which cannot be a ground for interference by this Court, in its writ jurisdiction. Moreover, it has not been submitted that the findings are in any way perverse. There is neither any averment in the writ petition nor any submission has been made that some evidence available on record has not taken into consideration. I am therefore constrained to hold that the findings returned by the two Courts below are not liable to be interfered with. 13. Once the Court permitted the secondary evidence to be adduced and after considering it accepted the Will, the judgments of the two Courts below cannot be faulted with. 14. Moreover, the oral testimony of Dinesh Chand is available on record and I have perused the same. He has specifically stated that the original Will was lost while he was travelling by train. It has also come in his oral testimony that he has made an effort to lodge an FIR in this regard but the police personnel refused to lodge the same. In the context of this statement, available on record the submission of learned Counsel for the petitioner that the efforts taken by Dinesh Chand to prove the loss of the original Will is not proved on record, cannot be accepted. 15. The other submission of learned Counsel for the petitioner that the objection under section 12 had been filed by the father of the respondent No. 3 and not by him personally, in my considered opinion, is also of no consequence. It is merely a question of presenting the objection. It is not the case of the petitioner that the objection was not sighed by the respondent No. 3, the beneficiary of the will. In this context the Courts below have noted that even the objection of the petitioner had been presented by her husband and not by her personally and therefore this submission of learned Counsel for the petitioner lacks substance. 16. Accordingly and for the reasons given above there appears no justification for any interference with the impugned orders which have been passed upon due consideration of the evidence available on record. 16. Accordingly and for the reasons given above there appears no justification for any interference with the impugned orders which have been passed upon due consideration of the evidence available on record. It is not open for this Court in writ jurisdiction to re-appreciate the evidence and to record a finding contrary to what has been recorded by the Courts below. I therefore find that the writ petition is devoid of merits and it is accordingly dismissed. ………………