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2015 DIGILAW 3195 (ALL)

Surendra Singh v. Deputy Director of Consolidation, Kushinagar

2015-10-09

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya),J. Heard Sri R.C. Singh for the petitioners and Sri Rishikant Rai holding brief of Sri Hari Om Ojha for the caveator. 2. The writ petition has been filed against the orders of Consolidation Officer dated 21.10.2008, Settlement Officer Consolidation dated 3. 6.2011 and Deputy Director of Consolidation dated 10.9.2015 passed in the proceeding under Section 9 of UP C. H. Act 1953. 3. At present the dispute between the parties is in respect of inheritance of share of Sukhdev. Sri Krishna, respondent-4 is claiming his right on the basis of registered Will dated 3.11.1976 executed by Sukhdev in his favour. On the other hand the petitioners are claiming that Sukhdev and his widow Smt. Muneshra died intestate and his share was inherited by Vishwanath after death of Muneshra. The consolidation authorities by the impugned orders have accepted the registered Will dated 3.11.1976 executed by Sukhdev in favour of Sri Krishna. 4. It may be mentioned that the petitioners have also filed a suit registered as O.S. No. 24/1980 for cancellation of the Will dated 3.11.1976. Initially the trial court by order dated 18.9.1981 held that the suit is cognizable by civil court and? was not liable to be abated under Section 5 (2) of UP C. H. Act. However order of trial court was reversed by the District Judge by order dated 18.1.1983. The order of District Judge was set aside by this Court in Writ Petition No. 3488 of 1983 by judgment dated 1.5.2006 and matter has been remanded to the trial court to decide the suit on merit after hearing the parties. 5. Initially, the proceeding before the consolidation court was stayed due to pendency of the civil suit but after the decision of the District Judge dated 18.1.1983 the respondents filed a writ petition before this Court in which the consolidation courts were directed to proceed with the matter. Thereafter the Consolidation Officer by order dated 21.10.2008 decided the objections on merit. The Consolidation Officer found that due execution of the Will dated 3.11.1976 has been proved by the attesting witness of the Will. So far as the share of the parties are concerned, the Consolidation Officer has refused to decide the share of parties in the khata in dispute. The order of the Consolidation Officer was challenged by the petitioners in appeal. So far as the share of the parties are concerned, the Consolidation Officer has refused to decide the share of parties in the khata in dispute. The order of the Consolidation Officer was challenged by the petitioners in appeal. The appeal was partly allowed by the Settlement Officer Consolidation by order dated 3.6.2011 and the matter was remanded to the Consolidation Officer for determination of share of the parties after giving opportunity of evidence to the parties. Against the order of Settlement Officer Consolidation two revisions were filed. One revision was filed by Sri Krishna and other revision was filed by the petitioners. The petitioners have also filed one revision against the order dated 17.6.2008 by which the Consolidation Officer has re-opened the proceeding. All the three revisions were consolidated and decided by the Deputy Director of Consolidation by a common order dated 10.9.2015. The Deputy Director of Consolidation has accepted the finding of Consolidation Officer as well as Settlement Officer Consolidation in respect of the Will dated 3.11.1976. Further the Deputy Director of Consolidation has accepted the order of Consolidation Officer and set aside the order of Settlement Officer Consolidation by which the matter has been remanded to the Consolidation Officer for determination of share of the parties afresh. Hence this writ petition has been filed. 6. I have considered the arguments of the counsel for the parties and examined the records. 7. The validity of the Will dated 3.11.1976 is being challenged by the petitioners in the civil suit and under the direction of this Court civil court has to decide the suit finally as such this Court has not going to re-examine the validity of the Will dated 3.11.1976 as the petitioners have still remedy to agitate their grievance before the Civil Court. 8. So far as the order of consolidation authorities in respect of the Will dated 3.11.1976 is concerned, a Full Bench of this Court in Ram Nath Vs. Smt. Munna 1976 RD, page 220 (FB) held that if the document is voidable then the revenue court has no jurisdiction to ignore it and ultimately the order of Revenue Court shall be abided by the decision of the Civil Court and it has to be given effect to. Smt. Munna 1976 RD, page 220 (FB) held that if the document is voidable then the revenue court has no jurisdiction to ignore it and ultimately the order of Revenue Court shall be abided by the decision of the Civil Court and it has to be given effect to. In such circumstances, the order of Consolidation Officer directing for mutation of the name of Sri Krishna on the basis of registered Will dated 3.11.1976 is not liable to be interfered by this Court as the order will be subject to the decision of the civil court. 9. So far as the determination of share and division of joint khata between the parties is concerned, both the counsels agree that the matter be sent back for determination of share as directed by the Settlement Officer Consolidation. 10. In the results, the writ petition partly succeeds and is partly allowed. The orders of consolidation authorities so far as it is in respect of registered Will dated 3.11.1976 is concerned, that shall be abided by the ultimate decision of the civil court and the findings recorded by the consolidation court shall not be taken into consideration while deciding the suit on merit. The Consolidation Officer has proceed to determine the share of the parties in pursuance of the order of Settlement Officer Consolidation dated 3.6.2011 and the order of Deputy Director of Consolidation dated 10.9.2015 quashing the order of Settlement Officer Consolidation dated 3.6.2011, is hereby set aside.