- (1.) Heard Sri N.N. Jaiswal, for the petitioner and Sri Mohd. Arif Khan, Senior Advocate, assisted Sri Mohd. Sadab, for the objector.
(2.) The writ petition has been filed against the orders of Consolidation Officer dated 16.06.1990 and District Deputy Director of Consolidation dated 03.03.1992, passed in title proceeding, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).
(3.) The dispute between the parties relates to land recorded in basic consolidation year khatas-56 and 196 of village Atawa Muthia and khata-59 and 236 of village Umrari, pargana Sandila, district Hardoi. In basic consolidation year khatas 56 of Atwa Muthia and 59 of Umrari were recorded in the names of Jagdev and Hori Lal sons of Nand Lal, while khatas 196 of Atwa Muthia and 236 of Umrari were recorded in the name of Jagdev and Hori Lal sons of Nand Lal along with other co-sharers, with whom there is no dispute. The dispute between the parties relates to inheritance of Jagdev. The petitioner is claiming his right on the basis of an unregistered will dated 06.08.1984, allegedly executed by Jagdeo in his favour. Ram Kumar (now represented by respondent-3) was son of Jagdev and claimed to be his heir under Section 171 of U.P. Act No. 1 of 1951. The dispute was noted in CH Form-4 that Jagdev was dead and Ram Kumar was his only son and heir of the land in dispute. Ram Adhar (the petitioner) filed separate objections under Section 9 of the Act, for recording his name over aforementioned khatas, on the basis of unregistered will dated 06.08.1984, allegedly executed by Jagdev in his favour. Consolidation Officer consolidated all the cases and tired together. The petitioner filed original will dated 06.08.1984 and an affidavit allegedly sworn by Smt. Sushila wife of Ram Kumar and examined Ram Adhar, Gokaran Prasad (attesting witness of the will) and Lalji (scribe of the will). Ram Kumar filed copy of Pariwar Register and examined Ram Kumar and Bhikham as witnesses. Consolidation Officer, by his order dated 16.02.1990 held that all witnesses of Ram Adhar admitted that Jagdev and Hori Lal had separate houses and were living separately. Smt. Sushila was looking after Jagdev and Ram Kumar was living separately from his father and wife. Ram Adhar has stated that on the date of execution of will, Jagdev was seriously ill and was not able to catch pen as such affixed his thumb marks on the will. Gokaran Prasad and Lalji have stated that will was executed in morning up to 8.00 a.m. and thereafter they returned to their house from train but from certificate issued by Station Master Benaganj, it was proved that on that day, SSB train was departed from station Benaganj at 7.48 a.m. The witnesses have stated that the will was executed at the house of Jagdev and although various villagers were present at that time but they did not agree to sign the will as witness. Witness Gokaran Prasad was uncle (phupha) of Ram Adhar and Lalji was cousin (phupha's brother's son) and thus highly interested witnesses. Alleged affidavit of Smt. Shushila was not admissible in evidence. For these reasons, he held that due execution of will was not proved. On the other hand Ram Kumar was admittedly son of Jagdev. On these findings, he dismissed the objections of the petitioner and directed for recording the name Ram Kumar over the khatas in dispute as an heir.;