RUKMINI Vs. DY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) Heard Sri Vijay Bahadur Verma, learned Counsel for petitioner and learned Additional Chief Standing Counsel and learned Counsel for Opposite Party No. 4. This writ petition has been filed by Smt. Rukmini for issuing a writ in the nature of certiorari to quash the impugned order dated 22.10.2012 passed by Deputy Director of Consolidation, Sitapur. It has been mentioned in the writ petition that Khata No. 319, Gata No. 802 area 1.064 H., 653 area 0.348 H., and Gata No. 676 area 0.020 H. total area 1.432, Village Gurdhapa, Pargana Hargaon Tehsil and District Sitapur was entered in the name of Ram Charan son of Chhedi. Ram Charan died on 22.1.1987 then Mullu moved an application for mutation in the Court of Nayab Tehsildar, Hargaon District Sitapur on the basis of a registered Will dated 29.4.1985. Notices were issued and Smt. Guddi widow of Ram Charan and Smt. Rajeshwari wife of late Dalla filed objections on the ground that they are wife and daughter-in-law respectively of Ram Charan. Nayab Tehsildar found the Will suspicious and also found that Smt. Guddi and Rajeshwari are not wife and widowed daughter-in-law respectively of Ram Charan and thus rejected both the applications and directed that the land be entered in the name of Gaon Sabha under section 194, U.P.Z.A. and L.R. Act. Being aggrieved both Mullu and Rajeshwari filed appeal and both the appeals were dismissed vide order dated 19.7.1998. In the meantime Rajeshwari filed a regular title suit under section 229(b)/209 U.P.Z.A. and L.R. Act. Mullu also filed a suit under section 229(b)/209 U.P.Z.A. and L.R. Act. During the pendency of both the suits, notification under section 4(a)(2) of U.P. Consolidation of Holdings Act was notified and the village came under the operation of consolidation proceeding. The suits were abated. Rajeshwari died in the year 2000 and in between 11.1.2001 and 11.3.2002. Mullu got a forged order of Nayab Tehsildar, Sitapur Suit No. 756 dated 24.4.1996 and got his name mutated over the disputed land as bhoomidhar with transferable right. On this basis, he obtained a loan from S.B.I. by pledging the land. An application was moved by Rukmini for inquiry and after inquiry F.I.R. was lodged by Anti-Corruption Bureau and after investigation charge-sheet was submitted against Mullu and others. After publication of notification under section 9, petitioner filed an objection under section 9A(2) of U.P.C.H. Act on the ground that her mother Guddi and sister-in-law Rajeshwari alias Shyama had died and she alone being daughter of Ram Charan is the legal heir and in possession of the disputed land. Another objection was filed by Mullu and after hearing objection of Mullu was rejected and orders for mutating the name of Rukmini was passed vide order dated 18.4.2009 by the Consolidation Officer. An appeal was filed by Mullu before S.O.C. which was later on transferred to the Court of Additional Settlement Officer Consolidation, who after recording the evidence dismissed the appeal vide order dated 13.1.2010. A revision was filed by Mullu before D.D.C. who allowed the revision and quashed the order passed by A.S.O.C. and CO. and directed the name of Mullu be mutated. Feeling aggrieved this writ petition has been filed.

(2.) There are two marginal witnesses of the Will, one is Daya Shankar and second is Ram Bahadur. Daya Shankar was examined before the Nayab Tehsildar but he was not examined in the proceeding under section 9A(2) of U.P.C.H. Act. While deposing before the Nayab Tehsildar, Daya Shankar has admitted that Ram Bahadur has affixed a thumb mark on the Will. In his cross-examination, he has stated that Ram Charan himself had gone to fetch the water mark paper. Before that he has admitted that at the time of execution of Will, Ram Charan was not able to see anything due to old age. This statement has been relied upon by the Nayab Tehsildar to hold Will suspicious. Another witness Ram Bahadur was not examined before Nayab Tehsildar. It has also come in evidence that Ram Charan was an educated person then it is also doubtful as to why he put his thumb mark on the Will. Ram Bahadur, who was another witness of the Will has filed an affidavit before Nayab Tehsildar on 28.2.1987 in which he has denied his signature over the Will. When the suit under section 229(b) or 209 of U.P.Z.A. and L.R. Act was abated and proceeding started under section 9A(2) of the U.P.C.H. Act again parties were given opportunity to adduce evidence in order to prove that Will. No marginal witness was examined to prove the Will. Mullu alone examined himself. Mullu has only filed affidavit of Guru Prasad who is the scribe of the Will. The scribe of the Will is not a fit person to prove the execution of the Will. S.R. Srinivasa v. S. Padmava Thamma, 2010 111 RevDec 675 , D.D.C. has, while deciding the case, relied upon the certified copy of evidence of Daya Shankar which was given in the earlier proceeding before Nayab Tehsildar and has found that this certified copy of evidence is reliable and can be used as an evidence to prove the Will. It has been mentioned in the Judgment, that Ram Bahadur and Daya Shankar have died so the statement can be read as secondary evidence. It is noteworthy that the signature of Daya Shankar could have been proved by the legal heirs of Daya Shankar. It has nowhere been mentioned that whether any of the legal heirs of Daya Shankar is alive or not. D.D.C. has relied upon the examination-in-chief of Daya Shankar but has not considered the aspect that in his cross-examination he has admitted that Ram Charan was an educated person and he was able to put his signature and at the time of executing the Will he was unable to see with his own eyes. When such a disability is proved on record then the duty to prove the Will is on Mullu. This fact is certainly an important and decisive factor since the Will changes the course of succession. Hence, it should have to be proved beyond reasonable doubt.

(3.) The mere fact that the Will is registered Will, not by itself be sufficient to displace any suspicion regarding it, without submitting the evidence of registration to a close scrutiny Purnima v. Khagendra, 1962 AIR(SC) 567.