Janardan Sahai, J. - (1.) One Chotan was the tenure-holder of the disputed land which is situate in two villages-Janhedi and Mastgarh. The petitioner is his brother's son. The contesting respondent Babu Ram is the brother of the petitioner and also the nephew of Chotan. Chotan died on 26.8.1982. After his death, objections were filed under section 9 of the U.P. Consolidation of Holdings Act. One of the objections was filed by the petitioner claiming succession to the disputed lands on the basis of a Will dated 23.3.1979 said to have been executed by Chotan. Another objection was filed by the respondent Bab. Ram who also relied upon a Will of Chotan dated 29.7.1987. A third objection was filed by the fifth respondent Smt. Satyawati Devi, wife of Babu Ram who relied upon a gift deed said to have been executed by Chotan in her favour. A fourth objection was filed by one Surat, Chotan's brother. The Consolidation Officer held that the Will in favour of the petitioner was prove and saw such directed the name of the petitioner to be recorded over the disputed land. The objections of the other respondents were dismissed. Three appeals were preferred before the Settlement Officer Consolidation one by Smt. Satyawati in respect of the land of Janhedi and two by Babu Ram in respect of the land of both the villages. The Settlement Officer Consolidation dismissed the appeals. Two separate revisions were filed before the Deputy Director of Consolidation by Babu Ram and one by Satyawati. The Deputy Director of Consolidation, Muzaffar Nagar allowed the revision of Babu Ram and dismissed the revision of Smt. Satyawati.
(2.) The finding of the Deputy Director of Consolidation is that the Will relied upon by the petitioner has not been proved. Broadly two reasons have been given by the Deputy Director of Consolidation (a) that it was unnatural that the attesting witnesses did not belong to the village where the deceased resided, and (b) that no reasons have been given in the Will for excluding Babu Ram and others who were also nephews of the testator and were related to him in the same degree as the petitioner was.
(3.) It appears that before the present proceedings, there were proceedings under section 145 Cr.P.C. between the parties. In those proceedings, the statement of the testator Chotan was also recorded. Chotan stated that he had executed the Will in favour of one of his nephews Kishen Lal, the petitioner. The Settlement Officer, Consolidation relied upon that statement. The Settlement Officer, Consolidation has also found that the petitioner had produced papers such as land revenue receipts. Jot Bahi, papers relating to medical treatment of Chotan, irrigation pass book, bills, receipts of land development bank etc. which proved that the petitioner was living with the deceased and thus had possession of these papers. The Deputy Director of Consolidation has not considered the statement of Chotan recorded in the proceedings under section 145 Cr.P.C. Chotan had subsequently died and his statement is relevant in subsequent judicial proceedings under section 33 of the Evidence Act. In view of Rule 26(2) of the Rules framed under the U.P. Consolidation of Holdings Act a consolidation Court can take oral and documentary evidence. Proceedings under section 9-A relating to determination of title are judicial proceedings and the Consolidation Officer is a Court and the Evidence Act is applicable to them vide Smt. jamil Khatoon v. Deputy Director of Consolidation, 1971 RD 471. The Deputy Director of Consolidation is however required to consider whether the circumstances under section 33 of the Evidence Act were existing. The reasons for excluding the other nephews which is the other ground for interference given by the Deputy Director of Consolidation can be inferred from the Settlement Officer, Consolidation's finding that the petitioner was living with Chotan a circumstance to show his special relationship with Chotan. That finding as we have seen was arrived at on the basis of a large number of documents.;