Hon'ble A.P.Sahi - (1.) HEARD Sri K. Ajit, learned counsel for the petitioner and Sri S.K. Pal, learned counsel for the contesting respondent Nos. 4 and 5. The parties do not dispute the following pedigree: JUDGEMENT_457_ADJ5_2011Image1.jpg
(2.) THE dispute in this petition relates to the agricultural holdings of Tamesar, who died issueless on 4th May, 1982. THE respondents' predecessor Kodai claims to have inherited the property through a registered Will, stated to have been executed by Tamesar in his favour in the year 1978 during his life time. THE petitioner is the daughter of Jhagru and Ram Singari. Ram Singari claimed succession to the property on the basis of an unregistered Will, which is alleged to have been executed by Tamesar on 29th April, 1982 just five days before his death. Testamentary succession to the agricultural land is a recognized mode of inheritance under Section 169 of the U.P. Z.A. and L.R. Act, 1950. Sri K. Ajit, learned counsel for the petitioner contends that Tamesar had been living with the husband of Ram Singari and, therefore, the Will was executed in favour of Ram Singari. Ram Singari moved an application for mutation in proceedings under Section 34 of the U.P. Land Revenue Act. The name of Ram Singari was mutated in the basic year. The contesting respondents filed an objection with the intervention of the consolidation operations and claimed succession to the property under the registered Will executed by Tamesar in favour of Kodai. The said objections were contested by the petitioner's mother Ram Singari but as per the records available and in view of the admitted position, the Will on which reliance was being placed by Ram Singari, namely, the unregistered Will dated 29th April, 1982 was neither produced nor filed either before the Consolidation Officer or before the Settlement Officer Consolidation or before the Deputy Director of Consolidation during the revision. A copy of the said Will has been filed for the first time before this Court in this writ petition.
(3.) THE Consolidation Officer after giving full opportunity and after having fixed various dates ultimately proceeded to decide the objections almost after more than 12 years. THE matter went ex parte against the mother of the petitioner as she had failed to appear and adduce evidence. THE Consolidation Officer recorded that in the absence of any evidence being led by the petitioner's mother, the issue was answered against her and so far as the claim of the contesting respondents are concerned, the same was accepted on the basis of the evidence that was led by them. Needless to mention that the order of the Consolidation Officer records that the petitioner was given ample opportunity to object to the statement of the beneficiary of the Will as well as the marginal witness of the Will before the Consolidation Officer. The petitioner did not avail the opportunity to cross examine the witness or contest the evidence that was allegedly led by the contesting respondents. This fact has been clearly recorded in the order of the Consolidation Officer. The Consolidation Officer, therefore, proceeded ex parte and allowed the objections of the respondents.;