SARVESH KUMAR Vs. ROHTASH

JUDGEMENT

(1.) HEARD Sri W.H. Khan, Senior Advocate, assisted by Sri J.H. Khan, for the petitioners. The writ petition has been filed against the orders of Tahsildar, dated 22.9.2011, Sub -Divisional Officer, dated 17.4.2012 and Additional Commissioner, dated 7.6.2012 and 14.8.2012, passed in the proceeding under section 34 of U.P. Land Revenue Act, 1901 (hereinafter referred to as the Act).

(2.) THE dispute relates to the properties of Umrao Singh son of Jhanna Singh, who had 1/2 share in the land of villages Rampur Ghoghar -M and Rampur Ghoghar -A and a residential house. On the death of Umrao Singh on 11.5.2004, three sets of mutation applications were filed for mutation claiming them as his heirs. The petitioners filed an application for mutation of their names on the basis of Will dated 15.4.2004 (registered on 3.6.2004) allegedly executed by Umrao Singh in their favour. Harkesh Singh filed another application for mutation of his name along with Ram Swaroop and Narain Singh (respondents -4 and 5), being brother's son of Umrao Singh as his heirs under section 171 of U.P. Act No. 1 of 1951. Rohtash and Vikas (respondents -1 and 2) filed another application for mutation of their names on the basis of Will dated 7.5.2004 allegedly executed by Umrao Singh in their favour. It may be mentioned that in the meantime, Supervisor Kanoongo mutated the names of Harikesh Singh, Ram Swaroop and Narain Singh, on the basis of report on PA -11 -A on 1.6.2004 as the heirs.

(3.) THE petitioners filed two appeals (registered as Appeal Nos. 34 and 35 of 2010 -11). Rohtash Kumar and another filed another appeal (registered as Appeal No. 26 of 2011 -12). All the appeals were consolidated and heard by Sub -Divisional Officer (respondent -8), who by his judgment dated 17.4.2012 held that Will dated 15.4.2004 was on two pages but signatures of witnesses were not on the first page. No reason has been mentioned in the Will for disentitling the nephews, who were otherwise heirs under section 171 of U.P. Act No. 1 of 1951 from inheritance in the Will. Although registration of the Will was not compulsory even then it was got registered after death of Umrao. Singh but no reason has been given for not making any effort to get the Will registered during life time of Umrao Singh although admittedly he was in good health up to 3.5.2004. Sarvesh Kumar, in his affidavit filed before Sub -Registrar has mentioned that Will was in respect of the property of village Rampur Ghoghar -M although Will was in respect of the properties of two villages and residential house. In the notice as published by Sub -Registrar, for giving public notice on 19.5.2004, it has been mentioned that Umrao Singh left behind him no heir except the persons in whose favour Will was executed, while he had to give notice to kith and kin of Umrao Singh before registration of the Will. Notice was published in weakly newspaper "Muradabad Rank" and not in daily newspaper having circulation in the locality. Subhash Singh, the attesting witness, in his statement has stated that he had no knowledge as to Umrao Singh was having how many brothers. Both the attesting witnesses of the Will were residents of village Kamalpuri and not of village of Umrao Singh. Thus the Will is surrounded by suspicious circumstances and the pro -pounders have failed to remove the suspicious circumstances. On these findings the appeals were dismissed. The petitioners filed a revision (registered as Revision No. 32 of 2011 -12) from the aforesaid order. The revision was heard by Additional Commissioner (respondent -7), who by his judgment dated 7.6.2012 affirmed the findings of the Appellate Court and dismissed the revision. The petitioners filed a recall application on the ground that Rohtash and Vikash filed another revision before Board of Revenue, U.P., in which interim order was granted on 29.5.2012 as such their revision was also liable to be transferred to Board of Revenue, U.P. However Additional Commissioner, by order dated 14.8.2012, rejected the recall application. Hence this writ petition has been filed with the delay about two years.