Ram Surat Ram, J. - (1.) HEARD Sri B. Ram, Counsel for the petitioners and Sri K.C. Yadav, Counsel for the respondents. The writ petition has been filed against the orders of the Consolidation Officer dated 5.9.2008 allowing the objection filed by Bhagwat Prasad, father of Om Narain (respondent No. 3), for mutating his name as one of the sons of Ram Dulare and the Deputy Director of Consolidation dated 30.9.2013 allowing the revision and, setting aside the order of the Appellate Court.
(2.) ADMITTEDLY , the land in dispute was property of Ram Dulare. On the death of Ram Dulare, the petitioners filed an application under section 34 of U.P. Land Revenue Act, 1901 (hereinafter referred to as "the Act") for mutating their names over the land in dispute on the basis of a registered will dated 15.3.1988 allegedly executed by Ram Dulare. The father of respondent No. 3 filed an objection before Tehsildar. The Tehsildar by order dated 13.12.1989 rejected the objection of the father of the respondent No. 3 and directed for mutation of the names of the petitioners on the basis of the will dated 15.3.1988. The Sub Divisional Officer by order dated 13.8.1990 dismissed the appeal filed against the aforesaid order by the father of respondent No. 3 and confirmed the order of the Tehsildar. The revision filed by the father of respondent No. 3 before the Commissioner Allahabad Division, Allahabad, has also been dismissed by order dated 19.3.1991. The recall application filed for recalling the order dated 19.3.1991 has also been rejected by the Commissioner by order dated 21.12.1991. In the meantime, the village was placed under consolidation operation and respondent No. 3 filed an objection before the Consolidation Officer for recording his name also as a grandson of Ram Dulare over the land in dispute along with the names of the petitioners. The Consolidation Officer by order dated 5.7.2006 dismissed the objection of respondent No. 3. Respondent No. 3 challenged the aforesaid order in appeal and the appellate authority vide order 3.4.2008 remanded the matter to the Consolidation Officer for deciding the objection afresh. After remand, the matter was again heard by the Consolidation Officer, who by order dated 5.9.2008 held that the petitioners have not examined the attesting witnesses of the Will to prove due execution of the will executed by Ram Dulare. The land in dispute is situated in Tehsil Sirathu while the alleged will was registered in district Pratapgarh, which shows that it was a suspicious document as such the will was ignored and as it has been admitted by the petitioners that Bhagwat Prasad was also the son of Ram Dulare, accordingly, the name of respondent No. 3, being his son, was also directed to be recorded over the land in dispute. The petitioners filed an appeal before the Settlement Officer, Consolidation (registered as Appeal No. 25) from the aforesaid order. The appeal was heard by the Settlement Officer, Consolidation, Fatehpur, Camp at Kaushambi, who by order dated 7.12.2009 allowed the appeal and set aside the order dated 5.9.2008 passed by the Consolidation Officer. The recall application filed by respondent No. 3 against the aforesaid has also been rejected by order dated 8.9.2010. By order dated 7.12.2009 the Settlement Officer, Consolidation has held that the will was a registered document as such burden was upon respondent No. 3 to prove that this was a forged document and since respondent No. 3 has not adduced any evidence to prove the Will as forged document as such it cannot be ignored being a registered document. Respondent No. 3 filed a revision (registered as Revision No. 19/28) from the aforesaid order, which has been allowed by the impugned order dated 30.9.2013. The revisional Court found that the Will was rightly found to be not proved by the Consolidation Officer. The revisional Court further held that on the photograph of Ram Dulare affixed on the will his signature has been mentioned, while on the Will thumb impression has been made as such it is a highly suspicious documents.
(3.) THE Counsel for the petitioners submits that the name of Ram Dulare was written on the photograph of Ram Dulare by Sri Pradumna Lal Mishra, who was the attesting witness of the will. The finding of the Deputy Director of Consolidation in this respect is illegal and based upon conjectures and surmises. He further submits that the Settlement Officer, Consolidation has found the will was a genuine document and the respondent No. 3 could not adduce any evidence to prove it as a forged document, accordingly, finding of fact recorded by the Settlement Officer, Consolidation could not have been set aside by the Deputy Director of Consolidation. He further submits that due execution of the will was proved in the proceedings under section 34 of U.P. Land Revenue Act and as the will has been acted upon and the names of the petitioners have been directed to be mutated by order of Tehsildar and confirmed by the Sub Divisional Officer and the Commissioner. It has been concurrently held by the Revenue Courts that due execution of the will was proved and the will was not liable to be ignored.;