RAM SURAT RAM J. - (1.) HEARD Sri Rakesh Pandey and Sri Sunil Kumar, for the petitioner and Sri Ashish Kumar Srivastav, for the contesting respondents.
(2.) THE writ petition was filed for quashing the order of Additional District Magistrate/ Deputy Director of Consolidation dated 27.12.2013, arising out of title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). The dispute relates to properties of khatas 130, 131 and 147 of village Lezar Mahadeva, tappa Lehra, tahsil Farenda district Mahrajganj. In basic consolidation records, the names of Yadunath son of Triveni, Kashi and Parmeshwar sons of Kundan, Parsuram son of Jamuna, Gyandas and Bhagwandas sons of Gannu were recorded over khata 130, the names of Yadunath son of Triveni, Kashi, Parmeshwar and Jamuna sons of Kundan were recorded over khatas 131 and 147. The dispute is in respect of the share of Yadunath. Hari Ram (the petitioner) filed an objection under Section 9 of the Act, claiming the share of Yadunath on the basis of his will. Jamuna son of Kundan and Ghanshyam son of Pareshwar (respondents -1 and 2) filed an objection on the ground that Yadunath did not execute any will and died as a member of joint Hindu family as such after his death his share was jointly inherited by three sons of Kundan namely Kashi, Parmeshwar and Jamuna, being his real nephews. Smt. Subhagi and Smt. Yashodhara (respondents -3 and 4) filed an objection claiming themselves to be married daughters and heirs of Yadunath. Now the dispute is between Hari Ram (the petitioner) and Smt. Subhagi and Smt. Yashodhara (respondents -3 and 4). All these objections were consolidated and tried by Consolidation Officer. Before the Consolidation Officer, the petitioner filed an undated and unregistered will and extract of Pariwar Register and examined Hari Ram and Jhakari (the attesting witness of the will) as his witnesses. Smt. Subhagi and Smt. Yashodhara (respondents -3 and 4) filed a certificate issued by Gram Panchayat Development Officer dated 14.09.2005 showing that they were daughters of Yadunath and examined Smt. Subhagi, Ram Subhag and Muggan witnesses. The Consolidation Officer, by his order dated 28.03.2009, found that due execution of the will was proved by attesting witness Jhakari. The extract of Pariwar Register filed by the petitioner shows that Yadunath had no daughters of the names of Subhagi and Yashodhara. The alleged certificate dated 14.09.2005, issued by Gram Panchayat Development Officer is not admissible in evidence. As such Smt. Subhagi and Smt. Yashodhara (respondents -3 and
(3.) ) could not prove that they were daughters of Yadunath. On these findings, objections of Smt. Subhagi and Smt. Yashodhara (respondents -3 and 4), Jamuna and Ghanshyam (respondents -1 and 2) were dismissed and it was held that share of Yadunath was inherited by the petitioner on the basis of his will. Consolidation Officer made correction in his order on 01.04.2009. 4. Smt. Subhagi and Smt. Yashodhara (respondents -3 and 4) filed two appeals (registered as Appeal Nos. 795 and 950) and Jamuna and Ghanshyam (respondents -1 and 2) filed an appeal (registered as Appeal No. 949) from the aforesaid orders. The appeals were consolidated and heard by Settlement Officer Consolidation, who by order dated 28.04.2010, dismissed the appeals. Smt. Subhagi and Smt. Yashodhara (respondents -3 and 4) filed a revision (registered as Revision No. 33) from the aforesaid order. The revision was heard by Additional Collector (F & R)/Deputy Director of Consolidation, who by order dated 27.12.2013 held that in the will the address of the attesting witnesses are not mentioned. The will was signed and also thumb marked by Yadunath. Jhakari son of Lutawan, in his statement, has not proved execution and attestation of the will as required under the law. The will is highly suspicious document in as much as in spite of the testator was having two daughters and three nephews but he executed will in favour of son of one nephew only without assigning reasons for depriving them. The execution of the will was not only denied by daughters but by nephews also. Smt. Subhagi and Smt. Yashodhara (respondents -3 and 4) were daughters of Yadunath. In the extract of Pariwar Register produced by the petitioner, Mitali (deceased) and Masali were shown as the daughters of Yadunath but the petitioner failed to produce Masali before the Court nor disclosed her where about. In the alleged will produced by the petitioners, two married daughters of Yadunath were mentioned, which proves that Smt. Subhagi and Smt. Yashodhara (respondents -3 and 4) were married daughters of Yadunath. As on the death of Yadunath, his brother Kundan was not alive as such Smt. Subhagi and Smt. Yashodhara (respondents - 3 and 4) inherited his properties. On these findings the revision was allowed and orders of Consolidation Officer and Settlement Officer Consolidation were set aside and names of Smt. Subhagi and Smt. Yashodhara (respondents -3 and 4) were directed to be recorded as an heirs of Yadunath. Hence this writ petition has been filed.;