Ram Surat Ram, J. - (1.) HEARD Sri G.D. Pandey for the petitioner. The writ petition has been filed against the order of Consolidation Officer dated 7.2.2011, Settlement Officer, Consolidation dated 18.5.2011 and Deputy Director of Consolidation dated 29.4.2013 passed in the proceeding under section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the "Act").
(2.) THE dispute between the parties is related to the properties of Smt. Dropadi wife of Jalta Prasad. Jalta Prasad had a second wife, namely Chandrawati from whom Rakesh Kumar and Ashok Kumar were born. Rakesh Kumar was adopted by Devkali Prasad (brother of Jalta Prasad). Rakesh Kumar filed an objection under section 12 of the Act for mutating his name over the land of Smt. Dropadi on the basis of an unregistered Will dated 15.6.1976. The Consolidation Officer by an ex parte order dated 25.7.1985 directed for recording the name of the petitioner over the land in dispute. However, the order dated 25.7.1985 was later on recalled and the matter was heard on merit. The Consolidation Officer by his order dated 7.2.2011 held that Rakesh Kumar could not prove due execution of the Will. Dargahilal, one of the attesting witness was examined before Consolidation Officer. Dargahilal was the resident of Ugaipur, district Sultanpur and he had stated that by chance he was at the district Court at Sultanpur on 15.6.1976 and was called by Rakesh Kumar thereafter he signed the Will as attesting witness of the Will. He has stated that the Will was written in one page paper but actually the Will was on two page papers. He admitted in cross -examination that he never used to go to the house of Dropadi or Rakesh Kumar. He has disclosed his relation as the maternal uncle of the wife of Rakesh Kumar. In such circumstances, the Consolidation Officer found that Dargahilal, who never used to go to the house of Dropadi before execution of the Will, it is highly suspicious that Dropadi would call him to attest her thumb impression on the Will as he was totally stranger for her. The statement of Dargahilal that the Will was executed on single page paper was also found to be false as the Will was written on two pages. The Consolidation Officer therefore disbelieved the statement of Dargahilal and held that due execution of the Will dated 15.6.1976 set up by Rakesh Kumar was not proved. On this finding the objection of Rakesh Kumar was dismissed and objection of Ashok Kumar was allowed and his name was directed to be mutated by way of inheritance. Rakesh Kumar filed two appeals i.e. Appeal Nos. 356 and 4770 from the order of Consolidation Officer passed in the proceeding under section 12 as well as under R.109(3) of U.P. Consolidation of Holdings Rules. Both the appeals were consolidated and decided by Settlement Officer, Consolidation, who by order dated 18.5.2011 held that due execution of the Will set up by Rakesh Kumar has not been proved and the findings of the Consolidation Officer in this respect does not suffer from any illegality. Thereafter, Rakesh Kumar filed a revision against the aforesaid order which was dismissed by Deputy Director of Consolidation, as withdrawn by order dated 29.4.2013. Hence this writ petition has been filed by the transferee of Rakesh Kumar. The Counsel for the petitioner submits that Rakesh Kumar has already executed a sale -deed dated 3.1.2000 in favour of the petitioner of the land in dispute and name of the petitioner was also mutated on its basis in revenue record. In such circumstances, Rakesh Kumar has already parted with the property and he has no right to withdraw the revision. Deputy Director of Consolidation has illegally dismissed the revision as withdrawn. The order of Deputy Director of Consolidation is illegal and the matter is liable to be remanded to Deputy Director of Consolidation for deciding the revision afresh on merit after hearing the arguments of the petitioner. He submits that Smt. Chandrawati, mother of Ashok Kumar has admitted the execution of the Will by Dropadi dated 15.6.1976 therefore its due execution was not required to be proved. In any case one of the attesting witness namely Dargahilal has already been examined as such due execution has been proved. Orders of consolidation authorities are illegal and be set aside.
(3.) I have considered the arguments of the Counsel for the petitioner and examined the record. Section 68 of the Evidence Act, 1872, which is relevant for decision of this writ petition is quoted below: 68. Proof of execution of document required by law to be attested. - -If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. Under the proviso to section 68, even the admission of the Will is not sufficient and its execution has to be proved, according to the provisions of section 68 which requires that one of the attesting witness to prove the execution and attestation of the document. Supreme Court in Bhapur Singh v. Shamasher Singh,, 2009 (107) RD 620 (SC) has held that in case of Will the requirement of section 68 for examining at least one attesting witness, cannot be dispensed with. Thus the arguments that as Smt. Chandrawati has admitted execution of the Will as such due execution ought to have been proved, is not liable to be accepted.;