ANAR DEVI Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) This writ petition is directed against the order dated 13.1.2006, passed by the Deputy Director of Consolidation, Agra by which he has permitted contesting Opp. party No. 2 herein to get examined thumb impression from expert as prayed by Jeetpal-revisionist.

(2.) The facts giving rise to the present petition are that the dispute relates to one third share of Jamuna Prasad Son of Shiv Singh. After the death of Jamun Prasad, his property devolved upon his two sons Ram Dayal and Ram Chandra, who were issueless. Ram Dayal predeceased Ram Chandra. According to petitioners, Ram Chandra executed a registered will in their favour on 16.4.1971 in respect of his moveable and immoveable properties. Ram Claandra died on 13.8.1978. On the basis of the registered will, petitioners filed an application for mutation before Tehsildar, Bah, District Agra, which was allowed on 22.7.1978. Contesting Opp. parties-Kali Charan, Sripal and Devi Ram also filed an application for mutation on the basis of some unregistered will and got some ex parte orders on 12.2.1978 for mutation. But, on the basis of notification under Section 4 of the U.P. Consolidation of Holdings Act, consolidation proceedings commenced on 7.10.1978. One Jeet Lal challenged the order dated 22.7.1978 in Appeal and obtained an ex parte order dated 13.11.1978. Subsequently, appeal abated. The order dated 13.11.1978 was challenged in Revision by the petitioners. Revision preferred was abated under Section 5(2) of the U.P.C.H. Act. In the Basic year Munijar Son of Jyoti Prasad, Karan Singh, Rajpat and Mahipati Sons of Mahendra, Data Ram Son of Gopi Chand, Devi Ram, Kali Charan and Sripal Sons of Gambhir, Ram Chand Son of Jamuna Prasad, Vishambar Dayal, Satya Narayan and Spta Prasad Sons of Har Govind were recorded in Khata No. 39 and 40. Khata No. 51 was exclusively recorded in the name of Ram Chand Son of Jamuna Prasad in the Basic year. In respect of Khata No. 57, names of Ram Chand Son of Jamuna Prasad, Devi Ram, Kali Charan and Sripal sons of Gambhir, Vishambar Dayal, Satya Narain and Sapta Prasad Sons of Har Govind were recorded. In respect of Khata No. 144, names of Munijar Son of Jyoti Prasad, Mahipati, Karan Singh and Rajpal Sons of Mahindra, Ram Chand Son of Jamuna Prasad, Devi Ram, Kali Charan and Sripal son of Gambhir, Satya Narayan and Sapta Prasad Son of Har Govind were recorded.

(3.) Petitioners filed an objection under Section 9 of the U.P.C.H. Act on the basis of registered will dated 16.4.1971. Jeet Pal Son of Dwarika Prasad also filed an objection under Section 9 of the U.P.C.H. Act in respect of same Khatas and claimed his rights on the basis of an unregistered will allegedly executed on 21.10.1977. Other objections were also filed by Jeetpal in respect of Khata Nos. 39, 51, 57 and 144. Gaon Sabha also filed objection on the ground that Ram Chandra was issueless and the land vested in Gaon Sabha after his death. Kali Charan, Sri Pal and Devi Ram Sons of Gambhir Singh also filed objection claiming themselves to be successors of Ram Chand. Oral and documentary evidence were led by the parties in support of their respective cases. Jeetpal produced himself as a witness and also produced Baburam Son of Narayan and Dataram Son of Nagpal as attesting witnesses of the unregistered will dated 21.10.1977. The scriber of the will was not produced. Consolidation Officer by an order 12th October, 1979 rejected objection dated 10th July, 1979 of Kali Charan and others and also rejected all other objections in default by an order dated 15th October, 1979, but subsequently on the restoration application of petitioners and Jeetpal, by an order dated 28.11.1979, Consolidation Officer allowed restoration applications and the matter was restored to its original number to be heard on merits. Consolidation Officer after hearing the parties allowed objection of petitioners and rejected objection of Jeetpal by an order dated 15th March, 1982. An appeal preferred by Jeetpal was dismissed on merits on 11.5.1985 against which a revision was preferred on 17.6.1985 by Jeetpal which is still pending. During pendency of the revision, after about 20 years an affidavit was filed by! Opp. party No. 2 for sending thumb impression of Ram Chandra to be examined by expert, to which a counter affidavit was filed by petitioners. No rejoinder affidavit was filed to counter affidavit of petitioners. By the impugned order dated 13th January, 2006, the Deputy Director of Consolidation passed an order permitting to examine thumb impression of Ram Chandra by expert.