Ram Surat Ram, J. - (1.) HEARD Sri Shailesh Kumar Tripathi, for the petitioners. The writ petition has been filed against the orders of Consolidation Officer dated 4.4.2012, Settlement Officer Consolidation dated 6.9.2012 and Deputy Director of Consolidation dated 31.1.2015 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).
(2.) THE dispute relates to inheritance of Munesar son of Lakshiman of the land recorded in basic consolidation year khatas 48, 161 and 189 of village Chechraf Buzurg, pargana Bansi Paschim, district Siddharth Nagar, in which Munesar was one of the co -sharer along with others. During consolidation, Smt. Rampati (now represented by Chandi (respondent -4) filed three separate objections, in respect of aforesaid khatas, for recording her name, on the basis of registered Will dated 27.10.1984, allegedly executed by Munesar in her favour, who claims herself to be (sic) married daughter of Muneshar. Sarjoo (father of the petitioners) contested the case on the ground that Munesar was unmarried and died issueless on 5.7.1984. He, being real brother of Munesar, was his heir under section 171 of U.P. Act No. 1 of 1951. Supervisor Kanoongo by order dated 29.8.1984, directed for recording his name as an heir of Munesar, on the basis of report under PA -11 -A. Munesar had already died on 5.7.1984, alleged Will dated 26.10.1984 was a document, fabricated by some imposter. Smt. Rampati filed original Will dated 27.10.1984 and examined Smt. Rampati as PW -1, Dhanpat (PW -2), attesting witness and Bhagwat Prasad (PW -3), scribe of the Will. The petitioners examined Makkhan (DW -1), Wazid Ali (DW -2) and Sarif Ahmad (DW -3). The Consolidation Officer, after hearing the parties held that it was admitted that Smt. Rampati was daughter of Munesar. Due execution of registered Will dated 27.10.1984 was proved by Dhanpat (PW -2), attesting witness and Bhagwat Prasad (PW -3), scribe of the will. The village was placed under consolidation operation by notification dated 12.11.1983, as such order of Supervisor Kanoongo, dated 29.8.1984, recording the name of Sarjoo as an heir of Munesar, was without jurisdiction. The petitioner could not adduce any evidence to prove that Munesar died on 5.7.1984. On these findings, objections of Smt. Rampati were allowed and her name was directed to be recorded over khatas in dispute as an legatee of Munesar.
(3.) THE petitioners filed an appeal (registered as Appeal No. 781) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by order dated 6.9.2012, again held that it was admitted that Smt. Rampati was daughter of Munesar. Due execution of registered Will dated 27.10.1984 was proved by Dhanpat (PW -2), attesting witness. Execution of the Will in favour of married daughter is not suspicious. The petitioner could not adduce any evidence to prove that Munesar died on 5.7.1984. The village was placed under consolidation operation by notification dated 12.11.1983 as such order of Supervisor Kanoongo, dated 29.8.1984, recording the name of Sarjoo as an heir of Munesar, was without jurisdiction. On these findings, the appeal was dismissed. The petitioners filed a revision (registered as Revision No. 670) from the aforesaid order. Deputy Director of Consolidation, by order dated 31.1.2015 affirmed the aforesaid findings and dismissed the revision. Hence this writ petition has been filed. The Counsel for the petitioners submits that the petitioners have denied that Smt. Rampati was daughter of Munesar, from very beginning. It was case of the petitioners that Munesar was bachelor and died issueless, which was proved from Pariwar Register. At the time of death of Munesar on 5.7.1984, Sarjoo, his real brother was alive as such he has inherited his share in the land in dispute under section 171 of U.P. Act No. 1 of 1951. Supervisor Kanoongo, by order dated 29.8.1984, recorded the name of Sarjoo as an heir of Munesar. Notification of the village under section 4 (2) took place on 13.11.1984. The consolidation authorities have illegally relied upon notification under section 4 (1) of the Act and held that order of Supervisor Kanoongo, dated 29.8.1984 was without jurisdiction. The witnesses examined by the petitioners proved that the petitioners were in possession over the land in dispute. Will dated 27.10.1984 was a manufactured Will and has been fabricated after death of Munesar. Dhanpat, in his statement at one place, has stated that Munesar signed the Will and at the other place has stated that he had put his thumb impression. Smt. Rampati, in her statement admitted that Will was executed after death of Munesar. Statement of Rampati has been illegally ignored by the consolidation authorities. The Will was surrounded with suspicious circumstances namely (i) stamp was purchased on 26.10.1984, while Will was registered on 27.10.1984. (ii) Three persons have attested the will, (iii) Dhanpat has stated that Munesar signed the Will although it bears thumb impressions, (iv) Scribe has shown his ignorance in respect of registration and (v) Smt. Rampati, in her statement admitted that Will was executed after death of Munesar. These suspicious circumstances have not been removed. He relied upon the judgment of Supreme Court in Bharpur Singh v. Shamsher Singh : 2009 (107) RD 620 (SC), in which it has been held that a Will must be proved in terms of the provisions of section 63(c) of the Succession Act, 1925 and section 68 of the Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as section 68 of the Evidence Act postulates that execution must be proved by at least one of the attesting witnesses, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence.;