KAMLA DEVI Vs. STATE OF U.P.

JUDGEMENT

(1.) HEARD Sri G.D. Pandey for the petitioner. The writ petition has been filed against the order of Consolidation Officer dated 7.2.2011, Settlement Officer, Consolidation dated 18.5.2011 and Deputy Director of Consolidation dated 29.4.2013 passed in the proceeding under section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the "Act").

(2.) THE dispute between the parties is related to the properties of Smt. Dropadi wife of Jalta Prasad. Jalta Prasad had a second wife, namely Chandrawati from whom Rakesh Kumar and Ashok Kumar were born. Rakesh Kumar was adopted by Devkali Prasad (brother of Jalta Prasad). Rakesh Kumar filed an objection under section 12 of the Act for mutating his name over the land of Smt. Dropadi on the basis of an unregistered Will dated 15.6.1976. The Consolidation Officer by an ex parte order dated 25.7.1985 directed for recording the name of the petitioner over the land in dispute. However, the order dated 25.7.1985 was later on recalled and the matter was heard on merit. The Consolidation Officer by his order dated 7.2.2011 held that Rakesh Kumar could not prove due execution of the Will. Dargahilal, one of the attesting witness was examined before Consolidation Officer. Dargahilal was the resident of Ugaipur, district Sultanpur and he had stated that by chance he was at the district Court at Sultanpur on 15.6.1976 and was called by Rakesh Kumar thereafter he signed the Will as attesting witness of the Will. He has stated that the Will was written in one page paper but actually the Will was on two page papers. He admitted in cross -examination that he never used to go to the house of Dropadi or Rakesh Kumar. He has disclosed his relation as the maternal uncle of the wife of Rakesh Kumar. In such circumstances, the Consolidation Officer found that Dargahilal, who never used to go to the house of Dropadi before execution of the Will, it is highly suspicious that Dropadi would call him to attest her thumb impression on the Will as he was totally stranger for her. The statement of Dargahilal that the Will was executed on single page paper was also found to be false as the Will was written on two pages. The Consolidation Officer therefore disbelieved the statement of Dargahilal and held that due execution of the Will dated 15.6.1976 set up by Rakesh Kumar was not proved. On this finding the objection of Rakesh Kumar was dismissed and objection of Ashok Kumar was allowed and his name was directed to be mutated by way of inheritance. Rakesh Kumar filed two appeals i.e. Appeal Nos. 356 and 4770 from the order of Consolidation Officer passed in the proceeding under section 12 as well as under R.109(3) of U.P. Consolidation of Holdings Rules. Both the appeals were consolidated and decided by Settlement Officer, Consolidation, who by order dated 18.5.2011 held that due execution of the Will set up by Rakesh Kumar has not been proved and the findings of the Consolidation Officer in this respect does not suffer from any illegality. Thereafter, Rakesh Kumar filed a revision against the aforesaid order which was dismissed by Deputy Director of Consolidation, as withdrawn by order dated 29.4.2013. Hence this writ petition has been filed by the transferee of Rakesh Kumar.

(3.) I have considered the arguments of the Counsel for the petitioner and examined the record. Section 68 of the Evidence Act, 1872, which is relevant for decision of this writ petition is quoted below: