Ashok Bhushan, J. - (1.) HEARD Sri Rajesh Kumar. counsel for the petitioners and Sri Sudhakar Pandey, advocate appearing for respondent Nos. 4 and 5.
(2.) BY this writ petition, the petitioners have prayed for quashing the order dated 29th November, 2003 passed by Board of Revenue, order dated 3rd January, 1998 passed by Sub -Divisional Officer, Ballia and the order dated 13th November, 1997 passed by Naib Tahsildar, City, Ballia in proceedings under Section 34 of U. P. Land Revenue Act, 1901. Brief facts giving rise to this writ petition are ; one Ram Sunder was recorded tenure holder. Ram Sunder died on 12th April, 1993 leaving behind the petitioners as his two sons, respondent No. 5 as widow of predeceased son Jadunath and respondent No. 4 as widow of predeceased grandson. A report under Section 34 of U. P. Land Revenue Act, 1901 claiming mutation was submitted by the petitioners on 19th April. 1993 on the basis of registered Will dated 5th June, 1989 claimed to be executed by Ram Sunder in favour of the petitioners. The petitioners' case was that Will has been executed in favour of the petitioners, hence their names be mutated. On issue of proclamation objections were filed by respondent Nos. 4 and 5. The contesting respondents stated in the objection that no Will was executed by Ram Sunder, deceased, and respondents being heirs of Ram Sunder are entitled to be recorded over the land in dispute. It was further stated in the objection that contesting respondents are in possession of their l/3rd share on the land in dispute. Oral evidence was led before the Naib Tahsildar by both the parties. One attesting witnesses was also got examined by the petitioners to prove the Will. The Naib Tahsildar after considering the evidence on the record found the Will suspicious and directed mutation of names of the petitioners and contesting respondents as heirs of deceased. Ram Sunder. An appeal was filed by the petitioners challenging the order of Tahsildar. The appellate court also affirmed the order of Naib Tahsildar and observed that the Court is in agreement with the reasons given by the Naib Tahsildar for holding the Will suspicious. A revision was filed by the petitioners before the Board of Revenue, which too has been rejected on 29th November, 2003, affirming the orders passed by courts below. This writ petition has been filed by the petitioners challenging the aforesaid orders.
(3.) SRI Rajesh Kumar, learned counsel for the petitioners, challenging the orders, contended that mutation was claimed on the basis of registered Will which was proved by one attesting witness, hence it was not open for the Naib Tahsildar to ignore the Will and direct for mutation of both, the petitioners and respondent Nos. 4 and 5. The contention of petitioners' counsel is that Naib Tahsildar while deciding the mutation application has no jurisdiction to ignore a registered Will. Reliance has been placed by counsel for the petitioner on paragraph 381 of U. P. Revenue Court Manual as well as Appendix -10 of the said U. P. Revenue Court Manual. Following judgments of this Court as well as other High Courts have been cited by counsel for the petitioners in support of his submissions : (i) Roop Narain and Anr. v. Ram Chandra and Ors., 1973 RD 444 (ii) Rudra Pratap and Anr. v. Board of Revenue, U.P. and Ors. ; (iii) Chandra Kanta Medhi and Ors. v. Lakheshwar Nath and Ors., AIR 1976 Gau 94 ; (iv) Bala Prasad and etc. v. Bhola Nath and Ors. ; (v) Smt. Pitmo v. Shyam Singh : (vi) Awadesh and Ors. v. Jang Bahadur and Ors., 1962 RD (SUMC) 26.;