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Brij Bihari(Deceased) v. J.D.C., Allahabad & Others - WRIT - B No. 5952 of 1979  RD-AH 7178 (19 April 2007)
Civil Misc. Writ Petition No. 5808 of 1979
Deputy Director of Consolidation and others
Civil Misc. Writ Petition No. 5952 of 1979
Joint Director of Consolidation and others
Hon'ble Krishna Murari, J.
These are two connected writ petitions between the same parties challenging the judgment and order dated 30.4.1979 passed by Joint Director of Consolidation, Allahabad.
Dispute relates to Khatas no. 1, 2, 3, 50, 57, 58 and 59. In the basic year Khata no. 1 and 58 were recorded in the name of Kunj Behari, khata no. 2 was recorded in the name of Kunj Behari, Brij Behari and Ganga Prasad, Khata no. 3 was recorded in the name of Kunj Behari, Brij Behari, Ganga Prasad and Bhagwat Prasad, Khata no. 50 was recorded in the name of Kunj Behari, Brij Behari, Ganga Prasad and Suryamani, Khatas no. 51 and 59 were recorded exclusively in the name of Kunj Behari. On the death of Kunj Behari, dispute arose between the parties with regard to inheritance of his share.
An objection under Section 9-A (2) of the U. P. Consolidation of Holdings Act was filed by Ganga Prasad alleging that on death of Kunj Behari, petitioner and respondent no. 3 being his real brothers were entitled to 1/2 share each in the share of Kunj Behari. Another objection was filed by Brij Behari claiming entire share of Kunj Behari on the basis of registered ''Will' executed in his favour.
Consolidation Officer consolidated both the objections and by common judgment and order dated 31.1.1974 upheld the claim of Brij Behari on the ground that ''Will' in his favour was a genuine and valid document and rejected the claim of Ganga Prasad. Aggrieved, Ganga Prasad went up in appeal. Settlement Officer Consolidation vide order dated 22.9.1975 rejected the ''Will' on the ground that it was forged and fabricated and allowed the objection of Ganga Prasad holding that he and Brij Behari were entitled to half share each in the share of deceased Kunj Behari. While rejecting ''Will' as forged and fabricated, Settlement Officer Consolidation also recorded a finding that Khatas no. 57 and 58 were Sirdari Khata.
Appellate order was challenged by Brij Behari by filing revision. Joint Director of Consolidation vide order dated 30.4.1979 allowed the revision in part. He held ''Will' to be a genuine document but disallowed the claim of Brij Behari based on the basis of ''Will' in respect of all the Khatas except Khatas no. 57 on the ground that they were sirdari khata and no ''Will' in respect of the same could have been executed and accordingly directed that the name of Brij Behari be recorded only over Khata no. 57 as heir of deceased Kunj Behari on the basis of ''Will' in his favour. Aggrieved by the same, Ganga Prasad has filed writ petition no. 5808 of 1979 challenging the order of Joint Director of Consolidation upholding the ''Will' and the finding that Khata no. 57 was Bhumidhari. Writ Petition no. 5952 of 1979 has been filed by Brij Behari challenged the order of Joint Director of Consolidation on the ground that Joint Director of Consolidation wrongly held the Khatas in dispute except Khata no. 57 as sirdari khata.
In writ petition no. 5808 of 1979, it has been urged by learned counsel for the petitioner that finding of Joint Director of Consolidation that Khata no. 57 was bhumidhari is based on no evidence on record and finding of the Settlement Officer Consolidation that it was sirdari khata had became final between the parties. It has further been urged that finding recorded by Settlement Officer Consolidation that ''Will' was forged and fabricated document has wrongly been set aside by the Joint Director of Consolidation without considering the evidence on record.
In reply, it has been submitted that Consolidation Officer and Joint Director of Consolidation both have recorded finding with regard to genuineness of the ''Will' without reference to any evidence. As a matter of fact, both authorities have not made any reference much less discussed the oral statement of the witnesses produced in support of the ''Will' and have wrongly and illegally upheld the ''Will' only by saying that it stands proved by the statement of the witness. The said finding cannot be considered as a finding recorded in accordance with law. It has further been urged that Joint Director of Consolidation rightly held Khata no. 57 to be Bhumidhari khata on the basis of evidence on record.
In Writ Petition No. 5952 of 1979, it has been urged by the learned counsel for the petitioner that the finding recorded by respondent no. 1 that Kunj Behari was only Sirdar of all the khatas except khata no. 57 as such ''Will' executed by him would not operate in respect of said Khatas is illegal and contrary to the evidence on record. It has further been urged that it was no body's case that Kunj Behari was only Sirdar and not Bhumidhar and as such he could not have executed ''Will' in respect of Sirdari Khata. The claim of the petitioner on the basis of ''Will' was only being contested on the ground that it was fraudulent and fictitious.
In reply, learned counsel appearing for the contesting respondents has tried to justify the impugned order passed by the Joint Director of Consolidation in respect of Khatas which were Sirdari Khatas.
I have heard the learned counsel for the parties and perused the record.
In so far as question of validity of ''Will' is concerned, none of three authorities have recorded any proper finding in this regard. There is no discussion in any of the judgment with regard to oral evidence adduced to prove ''Will'. Only finding recorded by the Consolidation Officer is that Ram Naresh and Surajmani who were attesting witnesses have proved ''Will' by their statements. There is no reference or discussion of their statements or any finding as to what was stated by them and how ''Will' stood proved by their statements. Settlement Officer Consolidation also without discussing the evidence has rejected ''Will' only on the ground that Kunj Behari in his application moved before Assistant Settlement Officer Consolidation claiming that Khata no. 1 was his exclusive holding did not disclose or mention anything about ''Will'. The finding recorded by Settlement Officer Consolidation for discarding ''Will' is also based on surmises and conjectures without any reference to any evidence. Similarly, Joint Director of Consolidation has also not made any reference to any evidence brought on record to prove ''Will'. He has also held ''Will' to be genuine only on the ground that it was registered and proved by two attesting witnesses without any reference to their oral statements.
In so far as the question whether Khatas in dispute were Sirdari or Bhumidhari is concerned, again the finding recorded by all three courts are based on surmises and conjectures. Consolidation Officer without reference to any material or evidence held all the Khatas to be Bhumidhari Khatas. Settlement Officer Consolidation though has made a reference in the judgment that there is endorsement of Bhumidhari Sanad 1376 F. to 1378 F. but without discussing the effect held that Khatas no. 57 and 58 was not Bhumidhari Khatas. The same mistake has been committed by Joint Director of Consolidation without reference to any evidence or material merely on the basis of some entries in CH Form 5, he held all the Khatas except Khata no. 57 to be Sirdari. Before this Court in Writ Petition No. 5952 of 1979, Bhumidhari Sanad with regard to Khata in dispute has been sought to be filed by means of an application as additional evidence.
Although, it is too late in the day to file Bhumidhari Sanad as additional evidence before this Court but since the same has material effect in adjudicating rights of the parties effectively, in the interest of justice, the same is taken on record.
From the aforesaid discussions, it is clear that neither of the consolidation authorities have considered the case of the parties in right perspective. The finding with regard to genuineness and validity of the ''Will' by Consolidation Officer and Joint Director of Consolidation and the finding of the Settlement Officer Consolidation discarding ''Will' are based on surmises and conjectures without any reference to any evidence or material which was brought on record. With regard to the fact that whether Khatas were Sirdari or Bhumidhari also none of the courts below have recorded any proper finding based on material evidence on record. Further Bhumidhari Sanad with respect to the Khatas in dispute could not be filed before the court below as such there was no occasion to consider the same. Since now they have been accepted as additional evidence, it would be in the fitness of thing that the effect of the same may be considered.
In view of the aforesaid facts and circumstances, both the writ petitions stand allowed. The impugned order dated 30.4.1979 passed by the Joint Director of Consolidation is quashed. Deputy Director of Consolidation is directed to consider the genuineness or otherwise of the ''Will' in the light of oral statement of the witnesses and other evidence and in the light of the observations made herein above. He shall also consider the effect of Bhumidhari Sanad which shall be filed by the petitioner of Writ Petition No. 5952 of 1979 before him while determining whether Khatas were Sirdari or Bhumidhari. Since the matter has remained pending for long, it is expected that Deputy Director of Consolidation shall decide the case expeditiously, preferable, within a period of one year from the date of production of a certified copy of this order before him.
Date : April 19 ,2007.
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