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2016 DIGILAW 3143 (ALL)

Sandeep Kumar v. State of U. P.

2016-09-14

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. – Supplementary affidavit filed today is taken on record. 2. Heard Sri Rakesh Kumar Verma for the petitioner and Smt. Kamini Pandey for the caveator. 3. The writ petition has been filed against the orders of Consolidation Officer dated 9.12.2013, Settlement Officer, Consolidation dated 01.10.2015 and Deputy Director of Consolidation dated 16.6.2016 passed in the title proceeding under U.P. Consolidation of Holdings Act, 1953(hereinafter referred to as "the Act"). 4. In the basic consolidation record the name of Ram Nath alias Lattoo son of Ramdeen along with other co-sharers was recorded in khata nos.403 and 404 of village Vanpur, pargana Vanpur, tehsil Mahrauni, district Lalitpur. The petitioner filed an objection under Section 9 of the Act for recording his name on the basis of will dated 15.2.1987 allegedly executed by Ram Nath in his favour. Respondents-5 to 7 and his other brothers also filed objection for recording their names claiming themselves to be sons of Ram Nath. One Brijnandan also filed an objection claiming for recording of his name as heir by way of survivorship as Ram Nath died issueless and was inherited by his brothers. All the objections were consolidated and decided together. Consolidation Officer found that the claim of Brijnandan that he was heir of Ram Nath was not proved inasmuch as he could not state the name of father of Ram Nath and also could not state the names of brothers of Ram Nath. Thus, he disbelieved the case of Brijnandan. So far as the petitioner is concerned, Consolidation Officer found that in the will dated 15.2.1987 no reason has been assigned for executing the will in favour of the petitioner nor any reason has been given for depriving natural heirs of Ram Nath in it although Ram Nath had five sons and his wife alive at the time of will, therefore, will is a highly suspicious document and its due execution has not been proved. He disbelieved the statement of Deep Chandra as well as Virendra Kumar, the attesting witness of the will inasmuch as they could not state that they were very much familiar to Ram Nath. He disbelieved the statement of Deep Chandra as well as Virendra Kumar, the attesting witness of the will inasmuch as they could not state that they were very much familiar to Ram Nath. Consolidation Officer believed the evidence of respondents-5 to 7 inasmuch as they filed extract of Parivar Register, Voter identity Card, Voter List, Ration Card and certificate given by Laxmi Kant Chhedi Lal Panda, Allahabad in which it has been stated that respondent-5 had come to Prayag Raj for asthi visarjan of his father Ram Nath. The oral statements of witnesses Munnalal, Jagdish Singh, Roopesh Kumar, Pancham and Purshottam and held that Ram Nath left behind his five sons at the time of his death. Accordingly, he directed for recording the names of respondents-5 to 7 and his brothers. The petitioner filed an appeal against the aforesaid order. Brijnandan also filed an appeal. Both the appeals were consolidated and decided by Settlement Officer, Consolidation by order dated 1.10.2015, upholding the finding of Consolidation Officer, dismissed both the appeals. Thereafter the petitioner alone filed a revision against the order of Settlement Officer, Consolidation. The revision was also dismissed by Deputy Director of Consolidation by order dated 16.6.2016. Hence, this writ petition has been filed. 5. I have considered the arguments of the counsel for the parties and examined the record. 6. In order to prove due execution of will dated 15.2.1987 the petitioner examined two witnesses, namely, Virendra Kumar and Deep Chandra. So far as the statement of Deep Chandra is concerned, Deep Chandra nowhere stated that will was signed by Ram Nath in his presence. He merely stated that he has signed the will as a witness. Thus, his statement cannot be said to be a statement to prove due execution of the will and attestation of the will by Ram Nath. So far as the statement of Virendra Kumar is concerned in cross examination he has stated that he had seen Ram Nath only on the date of execution of the will and thereafter he had never seen Ram Nath anywhere. By that time he had not tried to know that the person executing the will was Ram Nath. Similarly, he could not state Ram Nath alias Lattoo was 'Dubey' or 'Tiwari'. By that time he had not tried to know that the person executing the will was Ram Nath. Similarly, he could not state Ram Nath alias Lattoo was 'Dubey' or 'Tiwari'. Thus, identity of Ram Nath, who had executed the will and who was the tenure holder of aforesaid khatas was not proved by witness Virendra Kumar. In such circumstances, his statement has been ignored by the consolidation authorities. 7. So far as the finding recorded in respect of claim of respondents-5 to 7 and their brothers is concerned they have filed documents in evidence in the shape of extract of Parivar Register, Voter Identity Card, extract of Voter List, Ration Card as well as examined four witnesses. From the statements of aforesaid witnesses as well as documentary evidence a finding has been recorded that Ram Nath who was tenure holder of disputed khatas was also residing at village Tauria district Lalitpur and had five sons at the time of his death. The findings of the fact recorded by the consolidation authorities do not suffer from any illegality. This Court has no jurisdiction to re-assess the evidence on record and to record a contrary finding. 8. The writ petition has no merit and it is dismissed. Petition dismissed.