BALAK DAS Vs. D.D.C. AND OTHERS

JUDGEMENT

(1.) Case has been called out in the revised list. Nobody has appeared on behalf of respondent no. 4 and no counter affidavit has been filed on behalf of respondent no. 4. Heard Sri V. Singh, counsel for the petitioner and Standing Counsel for respondent nos. 1 to 3.

(2.) The present writ petition has been filed praying for writ of certiorari quashing the orders dated 11.3.2003, 25.8.1988 and 23.1.1988 passed by Deputy Director of Consolidation (respondent No. 1), Settlement Officer of Consolidation, Basti (respondent No. 2) and the Consolidation Officer, Basti (respondent no. 3).

(3.) The facts of the case are that one Aorauni i.e. the predecessor in interest of the petitioner, was the grandson of Matai i.e. the son of the daughter of Matai. One Jagai i.e. the predecessor in interest of respondent no. 4, was the brother of Matai. Matai died on 16.6.1982. After the death of Matai, a dispute arose between Aorauni and Jagai regarding succession to the property of Matai and both parties filed applications for mutation of their names in the revenue records in place of Matai. On the aforesaid applications, case Nos. 467 and 468 were registered in the court of respondent no. 3. In the application filed by Aorauni, Aorauni had initially represented himself as 'Bhanja' i.e. son of the sister of Matai but subsequently represented himself as grandson of Matai and the impugned orders record the fact that there is an alteration in the mutation application to the said effect. During the proceedings before consolidation authorities, Aorauni also claimed succession over the property of Matai on the basis of alleged Will dated 9.2.1982 executed by Matai in his favour, while Jagai claimed the said property by succession under Section 171 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 being the brother of Matai. It is noteworthy that in the mutation application filed by Aorauni, there is no reference to the alleged Will dated 9.2.1982. The consolidation officer vide his order dated 23.1.1988 rejected the application of Aorauni and directed that the name of Jagai be recorded in the revenue records in place of Matai. Against the aforesaid order dated 23.1.1988 passed by respondent no. 3, Aorauni filed an appeal under Section 11(1) of the Uttar Pradesh Consolidation of Holdings Act, 1953 in the court of respondent no. 2 which was registered as appeal No. 1696. The said appeal was dismissed by respondent no. 2 vide order dated 25.8.1988. Subsequently, Aorauni filed a revision under Section 48 of the Act 1953 in the court of respondent no. 1 which was registered as revision No. 2602. The said revision was dismissed by respondent no. 1 vide order dated 11.3.2003. In their impugned orders, the respondents have rejected the claim of Aorauni i.e. the predecessor in interest of the petitioner, on the ground that execution of the alleged Will dated 9.2.1982 was suspicious and Aorauni was not able to remove the suspicious circumstances surrounding the execution of the said Will. The aforesaid findings were recorded by the consolidation authorities as they found major contradictions in testimonies of different witnesses produced by Aorauni to prove the execution and attestation of the Will. The said contradictions related to place where the Will was allegedly executed by Matai and the thumb impression put by Aorauni and Matai on the said Will. Ram Dulare who was produced by Aorauni to prove the execution and attestation of the Will dated 9.2.1982 was, according to the opinion of the consolidation authorities, an interested witness and therefore not reliable as Aorauni was his employee. In their impugned orders, the consolidation authorities have also considered the alterations made by Aorauni in the mutation application filed by him wherein initially he had represented himself as a Bhanja of Matai but subsequently altered the same representing himself as grandson of Matai. While considering the aforesaid alterations in the mutation application filed by Aorauni, the consolidation authorities have recorded the fact that the alterations have been made with different inks implying thereby that the said alternations were not mere corrections but that Aorauni had tried to present a false picture regarding his relationship with Matai. On a consideration of oral and documentary evidence, respondent nos. 1 to 3 have held that execution of the Will dated 9.2.1982 was not proved. On the aforesaid findings, the consolidation authorities dismissed the application filed by Aorauni and directed that the name of Jagai be recorded in the revenue records in place of Matai as Jagai was the brother of Matai.