SALIL KUMAR RAI,J. - (1.) Heard Sri Tripathi B.G. Bhai, for the petitioners and Sri Bhanu Bhushan Jauhari, for respondent nos. 3 and 4.
(2.) The facts of the case are that one Kishori Devi was the original tenure holder of the plots in dispute between the petitioners and respondent nos. 3 and 4. Mani Ram was the father of the petitioners and the brother of Kishori Devi. The petitioners claim that Kishori Devi died on 13.4.1991 and before her death had executed a Will dated 12.4.1991 bequeathing the disputed plots in favour of Mani Ram, i.e., the father of the petitioners. On the other hand, the respondent nos. 3 and 4 claim that Kishori Devi died on 23.4.1991 and before her death had executed a registered Will dated 18.4.1991 bequeathing the disputed plots in their favour. Kishori Devi had died during the consolidation operations in the village and, therefore, separate applications under Section 12 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') were filed by Mani Ram and respondent nos. 3 and 4 claiming to be recorded in place of Kishori Devi as tenants of the disputed plots in the consolidation records. Consequently, two different cases under Section 12 of the Act, 1953 were registered before the Consolidation Officer at the instance of Mani Ram and respondent nos. 3 and 4 and the said cases were consolidated and heard together by the Consolidation Officer. During the pendency of the proceedings before the Consolidation Officer, Mani Ram died and the petitioners along with their mother Heera Mani were substituted in his place as his legal representatives. It appears that subsequently during the proceedings before the consolidation authorities, Heera Mani also died and, therefore, the present writ petition has been filed only by the sons of Mani Ram. After the matter was remanded back to the Consolidation Officer by the Deputy Director of Consolidation vide his order dated 23.4.1991, it remained pending before the Consolidation Officer for almost 19 years. It has been stated in the writ petition that 81 dates were fixed in the case by the Consolidation Officer giving opportunity to respondent nos. 3 and 4 to file their evidence but despite sufficient opportunity having been granted to them, the respondent nos. 3 and 4 did not file any evidence either to support their case or to rebut the case of the petitioners. It has been stated in the writ petition that 5-6 times the Consolidation Officer was forced to pass orders closing the opportunity granted to respondent nos. 3 and 4 to submit their evidence but the said orders were subsequently recalled but still respondent nos. 3 and 4 did not file their evidence before the Consolidation Officer. The Consolidation Officer vide his order dated 10.3.2010 allowed the application filed by Mani Ram and directed that the petitioners be recorded in the consolidation records as tenants of the disputed plots in place of Kishori Devi. Consequently, by the same order, the Consolidation Officer rejected the application filed by respondent nos. 3 and 4. In his order dated 10.3.2010, the Consolidation Officer has held that the execution and attestation of the Will dated 12.4.1991 propounded by the petitioners was proved by its attesting witness and the respondent nos. 3 and 4 could not extract any relevant information against the Will from the attesting witness in their cross-examination. Further, in his order dated 10.3.2010, the Consolidation Officer has also recorded a finding that the death certificate of Kishori Devi produced by the petitioners proved that Kishori Devi had died on 13.4.1991 and one of the attesting witness of the Will dated 18.4.1991, i.e., the Will propounded by respondent nos. 3 and 4 had filed his affidavit denying his signatures on the said Will. It is also apparent from a reading of the order passed by the Consolidation Officer that during the proceedings before the Consolidation Officer, the alleged Will dated 18.4.1991 which had been filed by respondent nos. 3 and 4 as evidence had been tampered with and the photograph affixed on the said Will was removed from the Will. Against the order dated 10.3.2010 passed by the Consolidation Officer, the respondent nos. 3 and 4 filed an appeal before the Settlement Officer of Consolidation which was dismissed by the Settlement Officer of Consolidation vide his order dated 15.11.2014. In his order dated 15.11.2014, the Settlement Officer of Consolidation affirmed the findings recorded by the Consolidation Officer that Kishori Devi had died on 13.4.1991. Aggrieved by the order dated 15.11.2014 passed by the Settlement Officer of Consolidation, the respondent nos. 3 and 4 filed Revision No. 392 before the Deputy Director of Consolidation, District Basti, i.e., respondent no. 1. During the pendency of Revision No. 392, the respondent nos. 3 and 4 filed an application in Revision No. 392 praying to take on record as additional evidence the photocopy of the Will dated 18.4.1991, the alleged death certificate issued in relation to Kishori Devi showing her death on 23.4.1991, copy of the family register, certain receipts showing purchase of medicines and a photocopy of the affidavit of the alleged attesting witness of the Will dated 18.4.1991 wherein he had denied his statement on affidavit filed before the Consolidation Officer. The Deputy Director of Consolidation vide his order dated 1.5.2017 allowed the said application and, therefore, the said documents were taken on record as additional evidence. Subsequently by his order dated 27.7.2017, the Deputy Director of Consolidation allowed Revision No. 392 after setting-aside the orders dated 10.3.2010 and 15.11.2014 passed by the Consolidation Officer and the Settlement Officer of Consolidation and remanded back the matter to the Consolidation Officer to pass fresh orders in the cases registered before him under Section 12 of the Act, 1953 after giving an opportunity of hearing to the parties. The order dated 27.7.2017 has been passed by the Deputy Director of Consolidation on the ground that the documents filed by respondent nos. 3 and 4 as additional evidence in revision show that there was a serious dispute regarding validities of the different Wills produced by the parties and as the dispute between the parties related to the title of the parties in the disputed plots, therefore, in accordance with the principles of natural justice, it would be appropriate that the matter be remanded back to the Consolidation Officer to pass fresh orders after giving the respondent nos. 3 and 4 an opportunity to produce their evidence and the original copies of the documents filed as additional evidence in the revisional court. In his order dated 27.7.2017, the Deputy Director of Consolidation has also held that the Consolidation Officer had ignored certain contradictions in the testimony of the attesting witnesses of the Will dated 12.4.1991 while recording a finding that the execution and attestation of the said Will was proved by the petitioners. The order dated 27.7.2017 has been challenged in the present writ petition.
(3.) It was argued by the counsel for the petitioners that the matter was pending before the Consolidation Officer for 20 years and despite repeated opportunities the respondent nos. 3 and 4 did not file any evidence to prove their case or to rebut the case of the petitioners and the Deputy Director of Consolidation without specifically setting-aside the findings of the Consolidation Officer that the respondent nos. 3 and 4 did not produce any evidence despite sufficient opportunity having been granted to them could not have set-aside the orders passed by the Consolidation Officer and the Settlement Officer of Consolidation. It was argued that in his order dated 27.7.2017, the Deputy Director of Consolidation has not recorded any finding on the aforesaid aspect. It was further argued by the counsel for the petitioners that while passing the order dated 27.7.2017, the Deputy Director of Consolidation has relied on photocopies of certain documents produced as evidence in revision which could not have been admitted in evidence at the revisional stage and, therefore, the order dated 27.7.2017 passed by the Deputy Director of Consolidation is vitiated due to consideration of irrelevant materials and is liable to be set-aside. It was argued by the counsel for the petitioners that for the aforesaid reasons, the order dated 27.7.2017 passed by the Deputy Director of Consolidation is illegal and contrary to law and is liable to be set-aside. In support of his arguments, the counsel for the petitioners has relied upon the judgments of the Supreme Court in Hameed (Dead) by Lrs. and Ors. Vs. Kummottummal Kunhi P.P. Amma (Dead) by Lrs. and Ors. 2006 (101) RD 602 and of the High Court in Ishaq and Ors. Vs. D.D.C. and Ors. 2015 (127) RD 603; Krashna Dev (Dead) through Legal Heirs - Tulsi Ram Yadav and Ors. Vs. Deputy Director of Consolidation and Ors. 2013 (119) RD 527 and Smt. Kamla Devi Vs. Deputy Director of Consolidation, Barabanki and Ors. 2014 (122) RD 603. Rebutting the arguments of the counsel for the petitioners, the counsel for respondent nos. 3 and 4 has argued that the order dated 1.5.2017 passed by the Deputy Director of Consolidation by which the documents filed by respondent nos. 3 and 4 in the revision were taken on record as additional evidence was never challenged by the petitioners before any court and has not been challenged in the present writ petition and, therefore, the order dated 27.7.2017 cannot be challenged on the ground that while passing the aforesaid order, the Deputy Director of Consolidation had relied on documents admitted as additional evidence by his previous order dated 1.5.2017. It was further argued by the counsel for respondent nos. 3 and 4 that as the dispute between the parties related to their title in the disputed plots and the respondent nos. 3 and 4 had a strong case in their favour, therefore, the Deputy Director of Consolidation vide his order dated 27.7.2017 rightly remanded back the matter to the Consolidation Officer to pass fresh orders after giving the respondent nos. 3 and 4 an opportunity to produce their evidence and it was not a fit case for interference by this Court under Article 226 of the Constitution of India. It was argued that for the aforesaid reasons, the writ petition is liable to be dismissed.;