SHAMBHOO NATH Vs. ADIITIONAL DISTRICT MAGISTRATE

JUDGEMENT

(1.) HEARD Sri B. Ram, Counsel for the petitioners and Sri K.C. Yadav, Counsel for the respondents. The writ petition has been filed against the orders of the Consolidation Officer dated 5.9.2008 allowing the objection filed by Bhagwat Prasad, father of Om Narain (respondent No. 3), for mutating his name as one of the sons of Ram Dulare and the Deputy Director of Consolidation dated 30.9.2013 allowing the revision and, setting aside the order of the Appellate Court.

(2.) ADMITTEDLY , the land in dispute was property of Ram Dulare. On the death of Ram Dulare, the petitioners filed an application under section 34 of U.P. Land Revenue Act, 1901 (hereinafter referred to as "the Act") for mutating their names over the land in dispute on the basis of a registered will dated 15.3.1988 allegedly executed by Ram Dulare. The father of respondent No. 3 filed an objection before Tehsildar. The Tehsildar by order dated 13.12.1989 rejected the objection of the father of the respondent No. 3 and directed for mutation of the names of the petitioners on the basis of the will dated 15.3.1988. The Sub Divisional Officer by order dated 13.8.1990 dismissed the appeal filed against the aforesaid order by the father of respondent No. 3 and confirmed the order of the Tehsildar. The revision filed by the father of respondent No. 3 before the Commissioner Allahabad Division, Allahabad, has also been dismissed by order dated 19.3.1991. The recall application filed for recalling the order dated 19.3.1991 has also been rejected by the Commissioner by order dated 21.12.1991.

(3.) THE Counsel for the petitioners submits that the name of Ram Dulare was written on the photograph of Ram Dulare by Sri Pradumna Lal Mishra, who was the attesting witness of the will. The finding of the Deputy Director of Consolidation in this respect is illegal and based upon conjectures and surmises. He further submits that the Settlement Officer, Consolidation has found the will was a genuine document and the respondent No. 3 could not adduce any evidence to prove it as a forged document, accordingly, finding of fact recorded by the Settlement Officer, Consolidation could not have been set aside by the Deputy Director of Consolidation. He further submits that due execution of the will was proved in the proceedings under section 34 of U.P. Land Revenue Act and as the will has been acted upon and the names of the petitioners have been directed to be mutated by order of Tehsildar and confirmed by the Sub Divisional Officer and the Commissioner. It has been concurrently held by the Revenue Courts that due execution of the will was proved and the will was not liable to be ignored.