Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1701 (ALL)

Sher Singh v. Deputy Director of Consolidation Muzaffarnagar

2018-08-02

RAJIV JOSHI

body2018
JUDGMENT : 1. Heard Sri Prakash Chandra Gupta, learned counsel for the petitioners and Sri Santosh Kumar Srivastava, learned counsel for the respondent no.4. 2. This writ petition has been filed for quashing the impugned order dated 11.6.2018 passed by the Deputy Director of Consolidation as well as the order dated 29.9.2014 passed by the Settlement Officer Consolidation. 3. The facts as reflect from the record are that one Niranjan Singh, who had 1/70 share in Khata No. 6, executed a registered Will in favour of petitioners on 13.5.1986. The power of attorney was also executed by Niranjan Singh on 5.2.1988 in favour of Harbhajan Singh. The power of attorney holder executed two registered sale deeds in favour of Jaswant Singh on 11.2.1988 and in favour of Balwant Singh on 2.7.1992. Subsequently, Jaswant Singh and Balwant Singh by way of registered sale deed transferred their lands on 15.7.1991 in favour of respondents no. 4 to 6. On the strength of sale deed, the name of respondent nos. 4 to 6 were mutated in the revenue record. Thereafter, Niranjan died on 9.11.1993. During his lifetime, Niranjan already sold his share in the land in question. 4. The petitioners on the basis of the Will deed dated 13.5.1986 applied before the Consolidation Officer and the Consolidation Officer vide order dated 19.10.2012 mutated their names. The appeal was filed by the respondent nos. 4 to 6 with the averment that the Niranjan Singh executed his power of attorney in favour of Harbhajan Singh on 11.12.1988 and therefore, the Will in favour of petitioners never come into existence. The Settlement Officer Consolidation allowed the appeal vide order dated 29.9.2014. Against that order, revision was filed by the petitioners, which was dismissed vide impugned order dated 11.6.2018. The order dated 11.6.2018 passed by the Deputy Director of Consolidation as well as the order dated 29.9.2014 passed by the Settlement Officer Consolidation are impugned in the writ petition. 5. The contention of learned counsel for the petitioners is that the order impugned is totally illegal as they challenged the power of attorney and no attesting witness has been examined by the respondents to prove the power of attorney in view of Section 67 of the Evidence Act and therefore, the order cannot be sustained. 6. 5. The contention of learned counsel for the petitioners is that the order impugned is totally illegal as they challenged the power of attorney and no attesting witness has been examined by the respondents to prove the power of attorney in view of Section 67 of the Evidence Act and therefore, the order cannot be sustained. 6. On the other hand, Sri Santosh Kumar Srivastava, learned counsel for the respondent no.4 supported the impugned order and submitted that in the proceeding under Section 12, the court can consider the mutation and it is also well settled that consolidation authorities can ignore void documents and the petitioners have to challenge the sale deed as well as power of attorney before the civil court for its cancellation, therefore, the argument of counsel for the petitioners has no legs to stand. 7. I have considered the rival submission of the parties and gone through the record. It is admitted that Niranjan Singh already sold his entire share of the land in question through power of attorney vide sale deed and subsequently, the vendee also transferred the land to respondent nos. 4 to 6. The petitioners are claiming their right on the basis of the registered will deed dated 13.5.1986. 8. The contention of learned counsel for the petitioners that power of attorney has not been proved as per the Section 67 of the Evidence Act, has no sense as for that purposes petitioners have to file a suit for cancellation of sale deed as well as power of attorney before the civil court. The sale deeds executed by the Niranjan Singh cannot be said to be void, it is valid sale deed. There is no question for proving power of attorney before the consolidation courts, which is not under challenge. Both the consolidation authorities have decided the case against the petitioners and have recorded specific finding of fact to the effect that even the petitioners failed to prove Will deed by examining at least one of its attesting witnesses as per Section 68 of the Evidence Act and the Will deed in question is having no legal effect when the property has already been transferred by Niranjan Singh prior to his death. 9. I do not find any illegality or infirmity in the orders impugned herein. 10. Writ petition lacks merit and is, accordingly, dismissed. No order as to cost.