Ashok Kumar Chaubey and Others vs Dy. Director of Consolidation and Others

Amreshwar Pratap Sahi, J.—Heard Sri Triveni Shanker learned Counsel for the Petitioner, Sri Lalji Pandey who has filed caveat on behalf of the contesting Respondent and the learned standing Counsel for the Respondent Nos. 1 and 2.

The dispute relates to the succession over the land in dispute. The objections were filed before the Consolidation Officer and Savitri Devi claiming herself to be the daughter alleged that she had a Will in her favour. The Will was set up before the Settlement Officer which was disbelieved on several grounds including the ground that her original objection for mutation of her name no such Will had been referred to therein. The Will is an unregistered Will. It is alleged to have been executed in the premises of the Tahsil/Sub-Divisional Headquarters of the District. The executor was allegedly 80 years of age.

A civil suit had been filed against a third person by Yagnath and after his death a substitution application was moved by Savitri Devi where also she did not disclose the execution of the Will. The Consolidation Officer found that the Will was not proved but in view of the provision of section 171 of the U.P.Z.A.L.R. Act accordingly directed the recording of the name of Uma Shanker and his brother.

An appeal was filed which was allowed and the order of the Consolidation Officer was set aside recording the name of Savitri Devi and her heirs who are the Petitioners herein. Aggrieved the Respondents filed a revision and the order of the Settlement Officer Consolidation was set aside and the order of the Consolidation Officer was restored.

Sri Triveni Shanker learned Counsel for the Petitioner submits that the Will could have been set up at the appellate stage as well and he relies on the decision in the case of Sant Bux Singh v. Dy. Director of Consolidation 2010 (111) RD 581. He further submits that most of the land in dispute was Abadi as referred in CH Form No. 41 and therefore the Consolidation Courts had no jurisdiction to decide any such dispute. He further contends that the Will had been proved and in such a situation the revisional order as well as the order of Consolidation Officer deserve to be quashed.

Sri Triveni Shanker learned Counsel for the Petitioner has invited the attention of the Court to the findings recorded by the Consolidation Officer and its reversal by the Settlement Officer Consolidation. He further submits that the Deputy Director of Consolidation without reverting the findings of the appellate authority in correct perspective has passed an order which is an unreasoned order and therefore the order of the Settlement Officer Consolidation deserves to be maintained.

Having heard Sri Trivedni Shanker learned Counsel for the Petitioner and Sri Lalji Pandey for the Respondents, it is apparent that an attempt was made to establish the validity of the Will by contending that the signatures on the Will ought to have been compared with the registered power of attorney as it contained signatures as Yagnath only. Sri Triveni Shanker submits that the word surname Tripathi'' is missing the same could not have been a ground to discard the Will. The aforesaid argument of Sri Triveni Shanker has to be construed in the light of the surrounding circumstances that were taken into account by the Consolidation Officer that Savitri Devi neither in her original objection nor in the proceedings before the Civil Court had ever set up the Will and therefore the same appears to be an afterthought. The Consolidation Officer also found that the Will was allegedly executed inside the Sub-Divisional Headquarters campus through the help of lawyers yet it remain unregistered. The attesting witness and his statement was unable to corroborate the exact execution of the Will. The Consolidation Officer therefore found that the Will appears to be an afterthought and surrounding circumstances do not establish the execution of the Will. The genuineness was doubted and in the opinion of the Court the Consolidation officer has given cogent reasons to support the same.

The Settlement Officer Consolidation simply set aside the order on the ground that the Consolidation Officer could not have discarded the Will merely because the case was not set up originally on the said basis. In the opinion of the Court a serious doubt was cast by the Settlement Officer as to why the Will was not registered. Even the execution of the Will was within the Sub-Divisional Headquarters. The Settlement Officer Consolidation has been unable to upturn the findings successfully and therefore to say that since the daughter had been living with her father a power of attorney was executed in favour of the son in law, is not sufficient to prove the execution of the Will. The Deputy Director of Consolidation was justified in restoring the order of the Consolidation Officer. Accordingly in view of these conclusions it is not necessary to assess the ratio of the decision in the case of Sunt Bux Singh (supra).

One of the issues raised by Sri Triveni Shanker is that Consolidation Courts had no authority to decide the issue relating to Abadi land.

Needless to mention that the Abadi which has been reflected in C.H. Form No. 41 is part of the holding itself and which is an Abadi within the tenure of the cultivators. It is not an Abadi land as understood in terms of the provisions of U.P.Z.A.L.R. Act and is not even otherwise an Abadi land as understood after a declaration u/s 143 of the U.P.Z.A.L.R. Act. Accordingly the contention raised by Sri Triveni Shanker has to be rejected as the objections related to the holdings that were within the jurisdiction of the consolidation operations after the notification u/s 4 of the Act.

In view of the aforesaid findings this Court does not find any reason to interfere with the impugned order.

The writ petition lacks merits and is accordingly dismissed.