Mohammadi and Others vs D.D.C. and Others

Anjani Kumar Mishra, J.—Heard Shri S.K. Mishra, learned counsel for the petitioners and Shri H.M. Srivastava for the respondents.

The writ petition arises out of an objection under Section 12 of the U.P. Consolidation of Holdings Act and seeks quashing of the order dated 29.03.1985 passed by the respondent No. 1 and the order dated 26.07.1982 passed by the respondent No. 2, respectively.

The dispute in the writ petition pertains to chak No. 19 recorded in the name of Inayat Khan and chak No. 14 which was recorded in the name of Alladin and Inayat Khan.

The objection under Section 12 was filed by the respondent, Yaqoob Hasan claiming on the basis of a registered will executed in his favour by Inayat Khan.

The objection was contested by the petitioners who are brothers and nephews of Inayat Khan, claiming on the basis of succession. They also claimed that the will was a forged and fabricated document. The testator was critically ill for a period of one year and he, thereafter vanished. He was kidnapped by the respondent and coerced into executing the will.

The Consolidation Officer on the basis of the statements of the marginal witnesses found the will to be proved. He also discussed the evidence of the experts and after comparing the thumb impression of the testator on the will and his thumb impression on an admitted sale-deed executed by Inayat Khan found both the thumb impressions to be identical. He, therefore, allowed the objection of the respondents.

Against the order of the Consolidation Officer, the respondents preferred an appeal. The Settlement Officer, Consolidation was of the opinion that the factum of death of Inayat Khan was not proved by the evidence available on record. He also opined that the photographer who had taken the photograph of the thumb impression on the will and the admitted the thumb impression on the sale-deed, was never produced to prove the photograph and, therefore, found the evidence of the expert of no relevance. He, therefore, allowed the appeal, set aside the order of the Consolidation Officer and remanded the matter back for fresh evidence being adduced to establish that Inayat Khan was in fact, dead.

The order of remand passed by the Settlement Officer, Consolidation was challenged by both the parties by means of revisions. These revisions were heard and decided by the common order dated 29.03.1985, whereby the Deputy Director of Consolidation has accepted the will. He recorded a finding that it is proved from the evidence on record that Inayat Khan had died on 20.12.1979. He also found the will to have been proved by the marginal witnesses and concurring with the reasoning and findings given by the Consolidation Officer, as regards the thumb impression of the testator, allowed the revision and set aside the order of remand and affirmed the order passed by the Consolidation Officer. Hence this writ petition challenging the order of remand passed by the Settlement Officer, Consolidation as also the revisional order.

The submission of the learned counsel for the petitioner is that the Deputy Director of Consolidation while exercising its revisional powers under Section 48 of the U.P. Consolidation of Holdings Act was not competent to reverse a finding of fact. He could have interfered with the appellate order, only in case it suffered from a jurisdictional error. It was not open for the Deputy Director of Consolidation to appreciate the evidence on record and to record his own findings in the matter. The order impugned is therefore wholly without jurisdiction and liable is to be set aside on this ground alone.

The next submission is that certain additional evidence was filed at the revisional stage. This additional evidence was a death certificate issued from Lucknow. This certificate has been relied upon by the revisional court without affording the petitioner, any opportunity of adducing evidence in rebuttal. In the absence of such an opportunity, the additional evidence would not have been relied upon and, therefore, the impugned revisional order is clearly vitiated.

The last submission made is that admittedly, Inayat Khan was sirdar of the land in question and, therefore, not competent who have executed a will of such land and, therefore, also the claim of the respondent was liable to fail.

In rebuttal, learned counsel for the respondent has submitted that the Deputy Director of Consolidation has decided the revision in the year 1985. In view of the amendment made in Section 48 of the U.P. Consolidation of Holdings Act w.e.f. January, 1981, the Deputy Director of Consolidation is a court of fact, competent to appreciate the evidence on record and, thereafter to return findings, both on facts and on law.

He next submits that the additional evidence that was filed, was in fact, a copy of the earlier death certificate filed by the respondents. The earlier certificate was duly issued and contained the seal and signatures of the officers competent to issue it. The petitioner in connivance with the reader of court concerned, tore way of the portion of the certificate which contained the seal and signatures and it was on account of this fact that the Settlement Officer, Consolidation did not accept that Inayat Khan wad dead. Apart from making various complaints in this regard, the respondent filed a fresh copy of the same certificate, as additional evidence. This additional evidence was filed more than one year prior to the hearing of the revision. He, therefore, submits that it is not open for the petitioners to claim that no opportunity of adducing evidence in rebuttal was given to them especially when they failed to adduce any evidence in rebuttal for a period of one year. He further submits that the relevant assertions, in this regard, are contained in paragraph 12 of the counter affidavit filed by him. He, therefore, contends that the argument of the learned counsel for the petitioners regarding lack of opportunity to file evidence in rebuttal is wholly without substance.

Upon a consideration of the submissions made by the learned counsel for the parties and upon a perusal of the record, I find the submissions of learned counsel for the respondents to be correct.

In view of the amendment in Section 48 of the U.P. Consolidation of Holdings Act made by U.P. Act No. 3 of 2002 w.e.f. 10.11.1980 whereby Explanation 3 was added to Section 48 , the Deputy Director of Consolidation is competent to record any finding, whether of fact or law, after appreciating any documentary or oral evidence on record. For ready reference the said Explanation 3 is extracted below:-

"[Explanation (3) - The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to reappreciate any oral or documentary evidence.]"

In my considered opinion, the provision quoted above is very categorical and a complete answer to the submissions made by the learned counsel for the petitioners. For this reason his submission is without merit and is hereby repelled.

I also do not find any substance in the submission made that no opportunity to file evidence in rebuttal was given. In my view, the Deputy Director of Consolidation has rightly relied upon the certificate filed as additional evidence since it was a fresh copy of the certificate filed initially by the respondent.

Even the Settlement Officer, Consolidation has recorded that the original certificate available on record was torn and, therefore in my considered opinion the additional evidence has rightly been relied upon. As regards the submission made that the land in question was sirdari land and, therefore, same could not have been the subject matter of the will is in my considered opinion, without substance inasmuch as this aspect has been considered both by the Settlement Officer, Consolidation as also Deputy Director of Consolidation and discarded from cogent reasons.

Learned counsel for the respondent is correct in his contention that the Settlement Officer, Consolidation as also the Deputy Director of Consolidation had considered and discarded the submissions of the petitioners that the land in question was sirdari land and, therefore, the same could not have been bequeathed. Both the courts below have observed that the testator of the will, had become a bhumidhar with transferable rights by operation of law.

It would further be relevant to note that the courts below have found the will to be proved on the basis of the statements of marginal witnesses thereof.

Learned counsel for the petitioner has relied upon decisions of the apex court in the case of Meenakshiammal (Dead) through LRs. and Others Vs. Chandrasekaran and Another, and Sridevi and Others Vs. Jayaraja Shetty and Others, , in support of his contention that the will was surrounded by suspicious circumstances which have not been explained by the propounder.

Even this submissions as also reliance upon the judgments cited is not worthy of credence inasmuch as this aspect does not appear to have been specifically raised before the courts below. The contention of petitioner was one of fraud and coercion. However they failed to prove either fraud or coercion. The courts below have observed that although the petitioners claimed that Inayat Khan had been kidnapped and murdered by the respondent, they did not lodge any First Information Report in this regard and this alone in my considered opinion, is sufficient to discard the submission of suspicious circumstances surrounding the will.

In view of the discussion above, all the submissions made by the learned counsel for the petitioner are found to be without substance.

The writ petition is, therefore, dismissed. There will however be no order as to costs.