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Allahabad High Court · body

2019 DIGILAW 1562 (ALL)

Sewa Ram v. D. D. C.

2019-07-01

SALIL KUMAR RAI

body2019
JUDGMENT : Salil Kumar Rai, J. 1. List has been revised. In view of the office report dated 2.7.2013, service of notice on respondent Nos. 4 to 7 is deemed sufficient. However, no one has appeared on behalf of the aforesaid respondents. Heard Shri Shyam Surat Shukla, learned Counsel for the petitioner and the Standing Counsel representing respondent Nos. 1 to 3. 2. The writ petition arises out of proceedings under section 12 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as Act, 1953). One Shri Tek Chand who was the father of the petitioner and respondent Nos. 6 and 7 and the father in law of respondent Nos. 4 and 5 was the original tenure holder of the disputed plots. The respondent Nos. 4 and 5 are the wives of respondent Nos. 6 and 7 respectively. After the death of Shri Tek Chand, a dispute arose between the petitioner on the one hand and respondent Nos. 4 and 5 on the other hand regarding succession to the property of Tekchand. 3. The petitioner claimed succession to the property of Tek Chand along with respondent Nos. 6 and 7 being the son of Tek Chand while the respondent Nos. 4 & 5 claimed to be tenants of the disputed plots on the basis of a Will dated 3.7.2007 allegedly executed by Tek Chand in their favour. 4. In Case No. 54 registered under section 12 of the Act, 1953, the Consolidation Officer (hereinafter referred to as CO.) vide his order dated 19.11.2010 rejected the Will dated 3.7.2007 and consequently the claim of respondent Nos. 4 & 5 and held the petitioner and respondent Nos. 6 & 7 to be entitled to succeed to the property of Tek Chand. The order dated 19.11.2010 was passed by the Consolidation Officer on the ground that the execution of the Will dated 3.7.2007 was surrounded by suspicious circumstances and the beneficiaries of the Will had not been able to dispel the suspicious circumstances surrounding the execution of the Will. 5. Aggrieved by the order dated 19.11.2010 passed by the C.O., the respondent No. 4 filed Appeal No. 49 under section 11(1) of the Act, 1953 which was allowed by Settlement Officer of Consolidation i.e. respondent No. 2 (hereinafter referred to as S.O.C.) vide his order dated 11.3.2011. 5. Aggrieved by the order dated 19.11.2010 passed by the C.O., the respondent No. 4 filed Appeal No. 49 under section 11(1) of the Act, 1953 which was allowed by Settlement Officer of Consolidation i.e. respondent No. 2 (hereinafter referred to as S.O.C.) vide his order dated 11.3.2011. The order dated 11.3.2011 was subsequently corrected by order dated 17.3.2011 removing certain typing errors in the original order. 6. Aggrieved the petitioner filed Revision No. 105 of 2011 under section 48 of the Act, 1953 before the Deputy Director of Consolidation, Ghaziabad i.e. respondent No. 1 (hereinafter referred to as D.D.C) which was dismissed by respondent No. 1 vide his order dated 5.7.2011. 7. The order dated 11.3.2011 (as corrected by order 17.3.2011) passed by the S.O.C. and the order dated 5.7.2011 passed by the D.D.C. have been challenged in the present writ petition. 8. A reading of the impugned orders dated 11.3.2011 and 5.7.2011 show that while rejecting the claim of the petitioner and accepting the claim of respondent No. 4, the respondent Nos. 1 & 2 have not recorded any finding regarding the validity and the due execution of the Will dated 3.7.2007 or whether the alleged suspicious circumstances surrounding the execution of the Will dated 3.7.2007 had been successfully dispelled/removed by the respondent No. 4. A reading of the impugned order also shows that the respondent Nos. 1 & 2 have not set aside the finding recorded by CO in his order dated 19.11.2010 on the basis of which he had rejected the Will dated 3.7.2007 and consequently the claim of respondent No. 4. 9. In view of the aforesaid, the orders dated 41.3.2011 and 5.7.2011 are contrary to law. 10. For the aforesaid reasons, the orders dated 11.3.2011 passed by S.O.C. and 5.7.2011 passed by D.D.C. are hereby quashed. The matter is remanded back to the S.O.C. to pass fresh orders in Appeal No. 49 within a period of six months from the date a certified copy of this order is produced before him after giving an opportunity of hearing to the interested parties. 11. Consequently, the writ petition is allowed.