Ram Surat Ram (Maurya), J. - (1.) HEARD Sri D.S. Khan for the petitioners. The writ petition has been filed against the order of Consolidation Officer dated 26.12.2007, Settlement Officer, Consolidation dated 22.7.2013 and Deputy Director of Consolidation dated 31.1.2015 passed in the proceeding under section 9 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "the Act").
(2.) THE dispute between the parties relates to land of khata No. 156, village Malak Balu, pargana Nawabganj, tehsil Soraon, district Allahabad. In basic consolidation record the names of Ram Sajeevan son of Sampat and Ram Dular son of Thakurdeen were recorded as bhumidhar with transferable rights. The petitioners filed an objection for deleting the name of Ram Sajeevan from the disputed khata. It has been stated by the petitioner that Ram Sajeevan was not the son of Sampat. Ram Dular died on 11.11.1979. Sampat executed a Will dated 31.9.1997 in favour of Ram Dular. However, the name of Ram Sajeevan was wrongly recorded over the land in dispute although he had no concern with Sampat and was not related to him in any way. On the claims of the parties the Consolidation Officer framed four issues, namely, "(1) Whether the name of Ram Sajeevan is recorded in the khata in dispute by way of forgery? (2) Whether Jai Narain and Ambika were the only bhumidhar with transferable rights of land in dispute? (3) Whether Kamlesh is an heir of Ram Sajeevan? (4) What are shares of the parties - The petitioner in order to prove his case examined Jai Narain (PW -1), Shrikant (PW -2) and Chhotey Lal (PW -3) and on behalf of Ram Sajeevan Kamlesh (DW -1), Kashiprasad (DW -2) and Ram Lakhan (DW -3) were examined. Both the parties had adduced their documentary evidence. The Consolidation Officer after hearing the parties by order dated 26.12.2007 held that from the evidence of Ram Dular it is proved that Ram Sajeevan was son of Sampat and Amarawati was wife of Ram Sajeevan. The Will executed by Ram Sajeevan in favour of Kamlesh has not been proved. On the other hand petitioners could not prove that Ram Sajeevan was not son of Sampat From the copy of Kutumb Register Ram Sajeevan, his wife Amarawati and son Kamlesh were residing in House No. 19 while petitioners were residing in House No. 20 and there is no explanation in this respect. In view of the aforesaid reason it was held that Ram Sajeevan is son of Sampat and after the death of Sampat name of Ram Sajeevan was rightly recorded. Accordingly, the share of Kamlesh was found to be 1/2 and share of Jai Narain was found to be v. The petitioners filed an appeal (registered as Appeal Nos. 1682/1567/872/862) from the aforesaid order before the Appellate Court. The petitioners filed Will dated 30.1.1977 allegedly executed by Sampat in favour of Ram Dular. The copy of the Will was accepted by the Appellate Court as an additional evidence. However, its due execution could not be proved by examining the witnesses before the Appellate Court. The Settlement Officer, Consolidation after hearing the parties by order dated 22.7.2013 found that due execution of the Will has to be proved by the attesting witness of the Will but the petitioner could not prove its due execution as such in view of section 68 of the Evidence Act the will cannot be read in evidence.
(3.) SO far as Ram Sajeevan was concerned it has been proved from the witnesses that Ram Sajeevan is son of Sampat From Kutumb Register filed by the respondents it was proved that Smt. Amaravati Devi was residing in the house of Ram Sajeevan as wife as such under section 114 of the Evidence Act presumption regarding validity of marriage was liable to be raised. In such circumstances, it was found that Ram Sajeevan was son of Sampat. On this finding the appeal was dismissed.;