GANGA CHARAN Vs. D D C KANPUR

JUDGEMENT

(1.) SUDHIR Narain, J. This writ petition is directed against the order dated 17th January, 1983 passed by the Deputy Direc tor of Consolidation, respondent No. 1, whereby the revision filed by the contesting respondents was allowed and the objection of the petitioner filed under Section 9 of U. P. Consolidation of Holdings Act (hereinafter referred to as 'the Act') was dismissed. The parties are related to each other as given in the following pedigree:- Kalika Prasad Bachchan Gajodhar Gurdayal Ayodhya Lal Prasad (Died) Prasad (Died) (Died) Ganga Prasad Ganga Radha Jai Charan Charan Prakash

(2.) THE dispute relates to the land which belonged to Bachchan Lal and Gajodhar. THE petitioner claims that they executed a registered sale deed in his favour on 12th August, 1964 and he was entitled for muta tion of his name in respect of the land trans ferred to him by the sale deed. He filed a mutation application before the Tahsildar concerned. In that mutation proceeding Bachchan Lal moved an application on 22. 2. 1965 stating that the name of the petitioner be mutated in the revenue record statement of a party made in another proceeding can be used to confront such party when he appears in the evidence. In case the party is dead at the time when the matter is to be decided in regular proceed ings, his statement will be relevant under sub-section (3) of S. 32 of the Evidence Act which provides when the statement is against the pecuniary or proprietary inter est of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. In Hanhar Raj Guru Mohapatra and another vs. Naw Kishor, AIR 1963 Orissa 46, wherein in a mortgage deed, the ex ecutant had admitted regarding adoption, it was held that the statement made in the mortgage deed being against his pecuniary interest was admissible in evidence. THE Court, in these circumstances, can consider the relevancy of statement of a dead person if he had made statement against his own interest in the property in question. 10. Ganga Prasad had filed Suit No. 244 of 1972 and in the said suit he chal lenged the execution of the sale deed dated 12. 8. 1964. In para 7 of the sale deed he stated that the petitioner obtained the sale deed by exercising his undue influence over Bachchan Lal deceased and in para 8 similar allegation has been made against Gajodhar. At the time of the institution of the suit Gajodhar Prasad was alive, he died on 14. 2. 74. THEre is nothing to show that Gajodhar Prasad had raised any objection that he never executed the sale deed. Bach chan Lal died in the year 1970. It is not denied by respondents No. 4 and 5 that the petitioner had not filed any mutation ap plication. None of the parties, however, has riled any copy of the final order passed in that mutation proceeding. THE petitioner had filed suit for partition in the year 1971 impleading the respondents as well as Ayodhya Prasad in the suit. 11. THE petitioner had led the evidence that the sale deed was executed by Bachchan Lal and Gajodhar Prasad. Respondent No. 1 was to consider (1) whether the sale deed was executed by Bachchan Lal and Gajodhar Prasad, and (2) if the sale deed was executed whether it was obtained by fraud or undue influence. It was not necessary that the scribe and the attesting witnesses should have been produced to prove the execution of the sale deed. 12. THE execution of a document is to be proved in accordance with the provision of Section 67 of the Evidence Act which provides if a document is alleged to have been signed or written wholly or in party by any person the signature or handwriting of so much of the document as is alleged to be in that person's handwriting must be proved in his handwriting. This can be proved by any person who recognises the signature or the handwriting. Section 68 of the Evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence unless one of the attesting wit nesses at least has been called for the pur pose of proving its execution. THE proviso make it clear that it shall not be necessary to call an attesting witness in the proof of ex ecution of a document, not being the will, which has been registered in accordance with the provisions of the Indian Registra tion Act, 1908 unless its execution by a per son to whom it purports to have been ex ecuted is specifically denied. THE person who had executed the registered sale deed never denied the execution of the docu ment. In Ram Kishor v. Ambika Prasad, AIR 1966 All 515, it has been held that even if a document has been attested but if it is registered and not required by law to be attested, it is not necessary to call the attest ing witnesses to prove the document. THE document has to be proved only in the man ner provided under Section 67 of the Evidence Act, 1872. 13. In para 14 of the written statement filed by Ayodhya Prasad in the suit filed in the Court of Assistant Collector 1st Class by Ganga Charan it has been stated that Ganga Prasad instituted Suit No. 102 of 1965 in the Court of 1st Civil Judge, Kanpur for specific performance of contract against Bachchan Lal. It has not been shown that in the said suit what was the stand taken by Bachchan Lal. 14. Learned Counsel for the respon dents urged that even after the execution of the sale deed Bachchan Lal and Ayodhya Prasad continued in possession of the land in dispute as they had let out the land. Learned Counsel for the respondents con tents that the petitioner never stated that after the execution of the sale deed they had let out the land but in fact he had stated that he was cultivating the land. It is not neces sary to consider the evidence in the matter. THE view taken by respondent No. 1 that as the name of the petitioner was not recorded in the mutation proceedings that will be taken as adverse circumstances to show that the sale deed was not executed is erroneous in law. Respondent No. 1 should have first recorded a finding whether the sale deed contained the signature of the executant on the sale deed and secondly, if the sale deed was executed, whether it was obtained by practising fraud or undue influence. Respondent No. 1 had not considered the matter in accordance with law and the order passed by it suffers from manifest illegality. 15. In view of the above, the order dated 17. 11. 1993 is hereby quashed and the writ petition is allowed. Respondent No. 1 directed to decide the matter afresh, keep ing in view the observations made above, in accordance with law on the basis of the evidence already on the record, possibly within three months from the date of production of a certified copy of this order. Petition allowed. .