JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Ganesh Datt Mishra, for the petitioner, Sri Raj Kishore Yadav, for respondent-3 and Sri Rajesh Yadav, for respondent-4. 2. The writ petition has been filed against orders of Settlement Officer Consolidation dated 21.11.2015 and Deputy Director of Consolidation dated 05.08.2016, passed in proceeding under Section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute between the parties is in respect of inheritance of chaks 115, 116 and 139 of village Jajner Ahatmal, pargana Harauda, district Saharanpur. Chak 116 was carved exclusively in the name of Masoom Ali son of Sultan and chaks 115 and 139 were carved out in name of Masoom Ali son of Sultan along with his other co-sharers, during consolidation. Masoom Ali died on 26.09.1995. The petitioner filed an objection (registered as Case No. 87), under Section 12 of the Act, for mutating his name over disputed land, which was allowed by order of Consolidation Officer dated 06.02.1996. Smt. Batool Begum (respondent-3) filed another objection (registered as Case No. 88) under Section 12 of the Act, for recording her names as an heir of Masoom Ali, under his registered will dated 13.09.1985. On coming to know about the order dated 06.02.1996, she filed an appeal against this order, on 03.10.1997 along with delay condonation application, which was dismissed by order of Settlement Officer Consolidation, dated 21.12.1998. She challenged the aforesaid orders in revision, which was allowed by order of Deputy Director of Consolidation, dated 18.06.2003 and orders dated 06.02.1996 and 21.12.1998 were set aside and the matter was remanded to Consolidation Officer for deciding the dispute on merit after giving opportunity of evidence and hearing to the parties. 4. After remand, Consolidation Officer consolidated both the cases and tried together. The petitioner, apart from documentary evidence, examined , himself and Smt. Rahisha wife of Bhollar (daughter of Masoom Ali). He also filed copies of statements of Saleem and Brajpal, recorded before Civil Court. Respondent-3, apart from documentary evidence, examined Intzar Ali (her power of attorney) and Sarfaraz Ali as witnesses. Consolidation Officer, after hearing the parties, by order dated 27.01.2015, held that will dated 25.10.1982 and 13.09.1985, allegedly executed by Masoom Ali appear to suspicious documents inasmuch as will dated 25.10.1982 bears signatures while will dated 13.09.1985 bears thumb impressions. Its due execution was not proved. Consolidation Officer, after hearing the parties, by order dated 27.01.2015, held that will dated 25.10.1982 and 13.09.1985, allegedly executed by Masoom Ali appear to suspicious documents inasmuch as will dated 25.10.1982 bears signatures while will dated 13.09.1985 bears thumb impressions. Its due execution was not proved. From statements of Brajpal, Pradhan and Saleem as well as extracts of Pariwar Register, Electoral Roll, it is proved that Matloob was son of Masoom Ali. From certificate issued by Pradhan of village Menhuwala, district Dehradoon, it was not proved that Matloob son of Chhajju and Matloob son of Masoom Ali were one and same person. On these findings, he allowed objection of the petitioner, directed for recording his name as an heir of Maoom Ali and dismissed objection of respondent-3. 5. Smt. Batool Begum filed two appeals (registered ass Appeal Nos. 542 and 543) from aforesaid orders. Both the appeals were consolidated and heard by Settlement Officer Consolidation, who by order dated 21.11.2015, held that it is admitted to the parties as well as witnesses of both the parties that Smt. Batool Begum was widow of Masoom Ali. Due execution of will dated 13.09.1985 was proved from statements of Sarfaraz. From registered will dated 25.10.1982, it is proved that Masoom Ali had four daughters and no male issue. Matloob, in his statement recorded before Tahsildar, admitted that one son was born to Smt. Batool Begum, who had died during childhood. Before Consolidation Officer, Matloob has given his age as 25 years, in 1996 from which his birth comes in 1971. In Pariwar Register, his birth was shown as 1978. Had there been any son of Masoom Ali, there could have no reason for not disclosing about him in will dated 25.10.1982 and 23.09.1985. Motloob is not son of Masoom Ali but son of Chhajju of village Menhuwala. Matloob took plea that Masoom Ali had two wives and he was born from Smt. Wasila wife of Masoom Ali, while Smt. Batool Begum took plea that she was only wife of Masoom Ali. In Pariwar Register and Electoral Roll, Smt. Batool Begum alone was shown as wife of Masoom Ali. He therefore found that Matloob was not son of Masoom Ali. While Smt. Batool Begum was his widow. In Pariwar Register and Electoral Roll, Smt. Batool Begum alone was shown as wife of Masoom Ali. He therefore found that Matloob was not son of Masoom Ali. While Smt. Batool Begum was his widow. On these findings, he allowed the appeals of respondent-3, set aside order of Consolidation Officer dated 27.01.2015 and directed for recording the name of respondent-3 over the disputed land. 6. The petitioner filed two revisions (registered as Revision Nos. 410 and 416) against aforesaid order. Both the revisions were consolidated and heard by Deputy Director of Consolidation, who by order dated 05.08.2016 held that it is admitted to the parties that Smt. Batool Begum was widow of Masoom Ali. From registered will dated 25.10.1982, it is proved that Masoom Ali had four daughters and no male issue. Matloob, in his statement recorded before Tahsildar, admitted that one son was born to Smt. Batool Begum, who had died. Before Consolidation Officer, Matloob has given his age as 25 years, in 1996, from which his birth comes in 1970-71. In Pariwar register, his birth was shown as 1978. There is vast difference in his age, from these two evidence. Had Masoom Ali any son, there could have no reason for not disclosing about him in the will dated 25.10.1982 and 23.09.1985. Motloob is not son of Masoom Ali but son of Chhajju of village Menhuwala. Matloob took plea that Masoom Ali had two wives and he was born from Smt. Wasila wife of Masoom Ali, while Smt. Batool Begum took plea that she was only wife of Masoom Ali. In Pariwar Register and Electoral Roll, Smt. Batool Begum alone was shown as wife of Masoom Ali. He therefore found that Matloob was not son of Masoom Ali. While Smt. Batool Begum was his widow. On these findings, he dismissed the revisions. Hence this writ petition has been filed. 7. The counsel for the petitioner submitted that Smt. Batool Begum could not dare to enter the witness box and deny that the petitioner as son of Masoom Ali. Intzar Ali, son-in-law of respondent-3, is a practicing lawyer. He fabricated will dated 25.10.1982 and 13.09.1985, to grab the disputed property, which is proved from the fact that will dated 25.10.1982 was signed while will dated 13.09.1985 bears thumb impressions. Intzar Ali, son-in-law of respondent-3, is a practicing lawyer. He fabricated will dated 25.10.1982 and 13.09.1985, to grab the disputed property, which is proved from the fact that will dated 25.10.1982 was signed while will dated 13.09.1985 bears thumb impressions. Due execution of will dated 13.09.1985 was not proved according to Section 68 of Evidence Act, 1872 and no reliance can be placed on it. Masoom Ali was married to Smt. Wasila, from whom the petitioner was born. Respondent-3 is second wife of Masoom Ali. The petitioner filed extract of Pariwar Register, Electoral Roll of the year 1999 and 2005, Adhar Card, copy of the plaint of O.S. No. 622 of 1988 and statement of Masoom Ali recorded in this case before Civil Court, in which he had stated that he had one son. He also examined Smt. Rahisha, elder daughter of Masoom Ali, who had stated that Batool was son of Masoom Ali. These evidence have been illegally ignored. Certificate of Pradhan produced by respondent-3, showing that the petitioner was son of Chhajju of village Menhuwala, district Dehradoon was not admissible in evidence as neither Pradhan of that village was examined nor Chhajju was examined. No reliance could be placed on it. In any case, there may be two persons of identical name, only for this reason it cannot be held that the petitioner was not the son of Masoom Ali. The appellate court has not followed the procedure under Order 41 Rule 31 C.P.C. for deciding the appeal and has illegally allowed the appeal. Impugned orders are illegal and liable to be set aside. 8. I have considered the arguments of the counsel for the petitioners and examined record. In paragraph-15 of the writ petition as well as before consolidation authorities, Matloob took plea that Masoom Ali was married to Smt. Wasila first from whom he was born and after her death, he married to Smt. Batool Begum. The petitioner examined Smt. Rahisha (daughter of Massom Ali from his wife Smt. Batool Begum), who had given her age as 60 years, in 2010, from which her birth come to 1950. In case Masoom Ali had married to Smt. Batool Begum after death of Smt. Wasila, as stated by the petitioner, birth of the petitioner would have been before 1950. In case Masoom Ali had married to Smt. Batool Begum after death of Smt. Wasila, as stated by the petitioner, birth of the petitioner would have been before 1950. In the affidavit filed in support of this writ petition, the petitioner has given his age as 43 years from which his birth comes in 1973, which was also recorded in his Adhar Card. From his statement before Consolidation Officer, his birth comes to 1971, while in Pariwar Register, his birth was noted as 1978 and he was shown younger to daughter Barosa and Askari. Even if it is taken that Smt. Wasila was second wife of Masoom Ali, then there could be no reason for not recording her name, in Pariwar Register, Electoral Roll and Ration Card filed by the petitioner. Thus pleading of the petitioner is not proved from evidence on record. Smt. Batool Begum took plea that she was only wife of Masoom Ali. In Pariwar Register and Electoral Roll, Smt. Batool Begum alone was shown as wife of Masoom Ali. In this circumstances, respondents-1 and 2 found that the petitioner has failed to prove that he was son of Masoom Ali. 9. So far as statement of Smt. Rahisha is concerned, she had stated, she deserted her husband and was living at Jajner. Her father had not given any share to her in his properties. Thus she had motive to give false statement. In her cross examination, she had clearly admitted that her father Masoom Ali had four daughters only and no son. Due to her cross examination, her statement was not relied upon before respondents-1 and 2. Now the argument has been raised before this Court that her oral statement, who is a family member, has been illegally ignored. In case, her cross examination is read, then she not supported the case of the petitioner. Similarly copies of statements of Saleem and Brajpal, recorded before Civil Court, were not admissible in evidence as these witnesses were alive but not produced. Consolidation Officer illegally placed reliance of these statement. No independent witness of the village or relation has been examined to prove that the petitioner was son of Masoom Ali. 10. Respondent-3 took plea that the petitioner was son of Chhajju of village Menhuwala, district Dehradoon. She also filed a certificate issued by Pradhan of that village in this respect. Consolidation Officer illegally placed reliance of these statement. No independent witness of the village or relation has been examined to prove that the petitioner was son of Masoom Ali. 10. Respondent-3 took plea that the petitioner was son of Chhajju of village Menhuwala, district Dehradoon. She also filed a certificate issued by Pradhan of that village in this respect. Her witnesses have proved her case, which has been accepted by respondents-1 and 2. Even if certificate issued by Pradhan was not admissible but oral evidence in this respect has been relied upon. 11. So far as copies of plaint of O.S. No. 622 of 1988 filed by Masoom Ali and his statement recorded in it is concerned, in paragraph-5 of the plaint, he had mentioned that his son is of very tender age. Statement of Masoom Ali was recorded in this case on 23.10.1990, in which he had given age of his son as 7-8 years. Therefore his birth comes 1983, i.e. after execution of first will dated 25.10.1982. This plaint and oral statement do not co-relate with the petitioner, whose birth is of the year 1973. Recital in the will dated 25.10.1982 that he had four daughters only, is not contradicted from this plaint and oral statement. Respondents-1 and 2 found that the petitioner, in his statement before Tahsildar had admitted that Smt. Batool Begum gave birth to a male child, who had died. Due to his admission about a son, this plaint and oral statement does not support him. 12. Documentary evidence of the petitioner, i.e. Pariwar Register, Ration Card, Electoral Roll and Adhar Card are subsequent to the death of Masoom Ali. Respondent-3 took plea that Zamil Khan, brother of Masoom Ali was Pradhan of the village. The petitioner was servant of Zamil Khan and his son Salim. Due to help of Pradhan various documentary evidence as mentioned above were prepared, to grab the property of Masoom Ali. Her case was believed by respondents-1 and 2, who are statutory authority. This Court in exercise of writ jurisdiction can not set aside findings of fact that the petitioner was not son of Masoom Ali, which is based upon appreciation of evidence of record. 13. Admittedly respondent-3 is widow of Masoom Ali. In the absence of any male issue, she is a preferential heir under Section 171 of U.P. Act No. 1 of 1951 of Masoom Ali. 13. Admittedly respondent-3 is widow of Masoom Ali. In the absence of any male issue, she is a preferential heir under Section 171 of U.P. Act No. 1 of 1951 of Masoom Ali. The orders of respondents-1 and 2 directing for recording her name as an heir of Masoom Ali do not suffer from any illegality. 14. In view of aforesaid discussion, the writ petition has no merit and is dismissed.