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Smt. Jyoti Pandey v. Up Sanchalak Chakbandi, Basti & Others - WRIT - B No. - 46438 of 2007 [2007] RD-AH 15953 (24 September 2007)

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Court No.5.

Civil Misc. Writ Petition No. 46438 of 2007.

Smt. Jyoti Pandey. Vs. Deputy Director Consolidation,

Basti and others.

Hon'ble Janardan Sahai, J.

Shambhu Dutt father of the petitioner was the tenure holder of the disputed land. He left behind several sons and one daughter. On the basis of an unregistered will dated 12.10.1983 said to have been executed by Shambhu Dutt an application under Section 12 of the U.P. Consolidation of Holdings Act was filed by the petitioner Smt. Jyoti Pandey and by Dilip Kumar respondent no.8 grand son of Shambhu Dutt. The Consolidation Officer allowed the application by order dated 12.9.1989. It appears that shortly thereafter an application was filed by Neel Kamal under guardianship of Smt. Shanti Devi wife of Ram Kishore Mishra, respondent no.4 son of Shambhu Dutt for recall of the order dated 12.9.1989. The order dated 12.9.1989 was recalled on 28.9.1989. It appears that against this order dated 28.9.1989 a revision was filed by the petitioner before the Deputy Director Consolidation. It also appears that an appeal was filed by the respondents 3 to 7 against the original order dated 12.9.1989. There was a long delay in filing of the appeal. The Settlement Officer Consolidation however condoned the delay. He found that the original will was not filed by the petitioner. He also observed that the Consolidation Officer had found Neel Kamal minor under the guardianship of Smt. Shanti Devi had not appeared and the order dated 12.9.1989 was an ex parte one. The Settlement Officer Consolidation by his order dated 11.9.2006 condoned the delay and remanded the case for fresh decision to the Consolidation Officer. By a subsequent order dated 12.10.2006 the Settlement Officer Consolidation modified his order dated 11.9.2006 and directed decision of the recall application of Neel Kamal. The order of the Settlement Officer Consolidation dated 11.9.2006 modified by order dated 12.10.2006 was challenged by the petitioner in revision. Both the revisions were heard together by the Deputy Director Consolidation and by his order impugned dated 31.8.2007 both the revisions have been dismissed by the Deputy Director Consolidation. The Deputy Director Consolidation has affirmed the order of the Settlement Officer Consolidation whose order is one of remand and the Consolidation Officer has been directed to decide the case afresh on merits. The reasons given by the Settlement Officer Consolidation and the Deputy Director Consolidation that the original will was not filed and the parties ought to be given opportunity to adduce evidence appears to be a just order. It is settled that the burden of proving a will lies upon the propounder.

In such circumstances the reason given by the Settlement Officer Consolidation and the Deputy Director Consolidation that the original will ought to have been filed appears to be correct. The petitioner has also been given opportunity to lead her evidence. The orders do not suffer from any illegality, which may call for interference under Article 226 of the Constitution of India. Dismissed.




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