R.R.K. Trivedi, J. - (1.) DISPUTE in this writ petition is regarding the succession of bhumidhari Khatas No. 123, 129 and sirdari Khatas No. 197, 480, 481, 490, 491 606 of village. Awaon, pargana Mohamadabad, district Azamgarh. In basic year record Petitioners were recorded as sons of Ram Ugrah Singh alias Ugrah. Udai Singh, father of Respondents No. 1 and 2 and real brother of Ram Ugrah Singh, filed an objection claiming that the names of Petitioners are wrongly recorded. They are not sons of Ram Ugrah Singh. The mother of Petitioners Smt. Sumitra was never married to Ram Ugrah Singh and Petitioners are not legitimate sons of Ram Ugrah Singh. Udai Singh claimed that he is entitled to be recorded in the aforesaid khatas being real brother of Ram Ugrah Singh. The claim of Udai Singh was resisted by Petitioners. They claimed that their mother Smt. Sumitra became widow after death of her previous husband Shri Ram Legan Singh and after becoming widow she was remarried to Ram Ugrah Singh and both lived as wife and husband throughout their life and they are legitimate sons of their father Ram Ugrah Singh and are rightly recorded in revenue records.
(2.) BOTH the parties adduced oral and documentary evidence. Consolidation Officer vide his order dated 6th November, 1963 rejected the claim of Udai Singh from which appeal was filed which too was dismissed by Assistant Settlement Officer Consolidation vide his order dated 13th March, 1964. Aggrieved by both these orders, Udai Singh filed a revision. The revision was, however, allowed vide order dated 16th September, 1965. Aggrieved by the order of the Deputy Director of Consolidation, Petitioners filed Civil Misc. Writ Petition No. 4744 of 1965. This writ petition, after hearing both the parties, was allowed by this Court on 11th March, 1970. The order of the Deputy Director of Consolidation dated 16th September, 1965 was quashed and the case was remanded with directions. Learned Single Judge of this Court allowed writ petition with the following findings: Admittedly Petitioner No. 5 had been living with Ram Ugrah Singh as his wife for a period of about 26 years. Admittedly Petitioners Nos. 1 to 4 were born of Smt. Sumitra Kunwar and the documents placed on the record which are old documents and had been prepared long before the dispute between the parties had arisen, show that Petitioners Nos. 1 to 4 are mentioned as the sons of Ram Ugrah Singh. Petitioners names were recorded in the basic year as successors of Ram Ugrah Singh. It was, therefore, for the Respondent No. 1 to prove that they were not the legitimate sons of Ram Ugrah Singh in order to deprive them from the property of the deceased. The impugned order of the Deputy Director, however, shows that he has placed the burden of proof on wrong shoulders by asking the Petitioners to prove their legitimacy. Section 50 of the Evidence Act provides that "when the court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant faet." Admittedly Ram Ugrah Singh deceased and Petitioner No. 5 had lived as husband and wife for a large number of years. It was, therefore, for the Respondent No. 1 to prove that Petitioner No. 5 was not a legally wedded wife of the deceased. From the aforesaid findings it appears that before this Court the fact that the mother of Petitioners and Ram Ugrah Singh lived as wife and husband for about 26 years was not disputed. The approach of the Deputy Director of Consolidation in putting the burden on the Petitioners was found erroneous in law, the case was remanded for deciding afresh. It was for Udai Singh claimant to rebut the legal presumption that the Petitioners were legitimate sons of Ram Ugrah Singh as their mother Smt. Sumitra lived with him as wife for such a long number of years and in the society they were recognised as such. There was yet another legal presumption of legal and valid marriage between Ram Ugrah Singh and Smt. Sumitra as they lived together as wife and husband for such a long time. The aforesaid judgment of the learned Single Judge was challenged by the present Respondents Ghanshyam Singh and others in Special Appeal which too was dismissed by this Court vide order dated 27th April, 1973. Both the judgments have become final. After remand the Deputy Director of Consolidation, however, vide order dated 31st March, 1975 has allowed the revision and set aside the orders passed by Consolidation Officer and Assistant Settlement Officer Consolidation and has directed to record the names of Respondents Nos. 1 and 2 in the khatas in dispute in place of Ram Ugrah Singh. This order of the Deputy Director of Consolidation has been challenged by filing this writ petition.
(3.) I have heard Shri Yatindra Singh, learned Counsel for the Petitioners and Shri G.N. Verma, learned Counsel appearing for the Respondents at length and I have also perused the impugned order and other documents on record. Shri Yatindra Singh, learned Counsel for the Petitioners has submitted that it was admitted case before this Court in earlier writ petition that Smt. Sumitra and Ram Ugrah Singh lived as wife and husband and this fact was not open to be doubted by Deputy Director of Consolidation. It has been' further submitted that the remand order which became final was binding on the Respondent No. 1. It contained a specific direction that the burden shall be on Udai Singh who claimed the land in dispute and challenged the rights of Petitioners but the Deputy Director of Consolidation has acted against the direction given by this Court in order dated 11th March, 1970. It has been further submitted that the legal presumption of legitimacy in favour of Petitioners and of legal and valid marriage on the ground of long cohabitation of Ram Ugrah Singh and Smt. Sumitra as husband and wife cannot be destroyed on account of failure of Petitioners but it can only be dislodged on the basis of the evidence adduced by the Respondents. The Deputy Director of Consolidation, illegally in whole of the judgment has discussed the evidence of the Petitioners for dislodging the presumption and the evidence adduced by Respondents which was disbelieved on many grounds by the two courts below, has only been referred. The course adopted by the Deputy Director of Consolidation cannot be justified. It has been further submitted that overwhelming evidence has been ignored. The statement of Smt. Sumitra has been misread. The documentary evidence and other witnesses has been ignored on irrelevant and extraneous consideration and the findings recorded are perverse and arbitrary. It has been also submitted that Ram Lagan Singh previous husband of Smt. Sumitra and Ram Ugrah Singh were only collaterals and the difference between the two was about 4.5 degrees as clear from the pedigree mentioned by the parties. There was no prohibition of the marriage. The Deputy Director of Consolidation has illegally passed his judgment taking this erroneous and misconceived view of law.;