Smt. Bechna and Another vs Dy. Director of Consolidation and Others

Ram Surat Ram (Maurya), J.—Heard Sri Neeraj Kumar Srivastava, Counsel for the petitioners. The writ petition has been filed against the order of Consolidation Office dated 10.11.2008, the Settlement Officer Consolidation dated 4.12.2009 and the Deputy Director of Consolidation dated 27.6.2013 passed in title proceeding under U.P., Consolidation of Holdings Act, 1953, hereinafter referred to as "the Act".

The dispute relates to the land of chak Nos. 101 and 228, which were recorded in the name of Ram Niranjan son of Ram Abhilakh. Ram Niranjan died on 25.6.2006. After his death, the petitioners as well as Ran Vijai, respondent No. 4 filed an application for mutation of their names. The petitioners claimed their title on the basis of a Will dated 24.12.2002. Ran Vijay Singh claimed that he was born on 18.1.1949 and the property in dispute being ancestral property, therefore, he inherited 1/2 share in the property in dispute being a coparcener and after the death of Ram Niranjan, his father, he inherited his share in the remaining 1/2 share being his son. The matter was tried by the Consolidation Officer, Katghara, Jaunpur, who by order dated 10.11.2008 found that the attesting witness of Will Shree Narain could not prove due execution of Will set up by the petitioners, accordingly, their case based upon the Will has been disbelieved. The case of Ran Vijai based on his date of birth on 18.1.1949 and becoming coparcener along with his father has also been disbelieved. The Consolidation Officer directed for mutation of the names of Smt. Bechna, Ran Vijai, Manoj Kumar and Sanjay Kumar u/s 171 of U.P. Act No. 1 of 1951. Ran Vijai did not file any appeal from the aforesaid order of the Consolidation Officer. However, the petitioners filed an appeal (registered as Appeal No. 1328), which was dismissed by the Settlement Officer, Consolidation by order dated 4.12.2009. The petitioners filed a revision (registered as Revision No. 2162 of 2011-12) which has been dismissed by order dated 27.6.2013.

The Counsel for the petitioners submits that Ran Vijai has already filed a Civil Suit i.e. Suit No. 215 of 2008 for cancellation of the Will dated 24.12.2002 and the suit is pending before the Civil Court as such during the pendency of the civil suit, it was not appropriate for the consolidation authorities to disbelieve the Will. He submits that in any case the matter was liable to be postponed during the pendency of the civil suit.

I have considered the arguments of the Counsel for the parties and examined the record.

Since the Will was related to agricultural land and inheritance before the consolidation authorities has been claimed on its basis, accordingly the consolidation authorities were fully competent to adjudicate the validity of the Will irrespective of the fact that a civil suit was pending. None of the parties has made any application before the consolidation authorities for getting the case adjourned on the ground of pendency of the civil suit. On the other hand the claim of the petitioners was based upon the Will, accordingly, the consolidation authorities were bound to examine the validity of the Will. There is no force in the arguments of the Counsel for the petitioners that the hearing before the consolidation authorities were liable to be postponed.

The only attesting witness Shree Narain was examined to prove the due execution of the Will and all the consolidation authorities concurrently found that there was contradiction in the statements of Shree Narain, which were recorded before the Revenue Court as well as the Consolidation Officer. In one statement he states that he did not know Smt. Bechna, petitioner No. 1 in whose favour the Will was executed. In such circumstances the consolidation authorities found that on the basis of statement of Shree Narain, the execution and attestation of the Will has not been proved and the findings of fact recorded by the three consolidation authorities do not require any interference in the matter. The Consolidation Officer ignoring the Will has directed for mutation on the basis of inheritance u/s 171 of U.P. Act No. 1951. This finding is not challenged by the petitioners, accordingly, the impugned order does not suffer from any illegality.

The Counsel for the petitioners argued that the consolidation authorities have found that all the persons are in possession over the property in dispute, accordingly, the share of the petitioners on the basis of Will ought to have been accepted. In this case the father died on 27.5.2006, therefore, the issue relating to inheritance of the property arose after 27.5.2006. There is nothing on the record to show that the share of Ran Vijai was partitioned or he was ousted from the property in dispute. In any case the ouster after 27.5.2006 does not mature the title of the petitioners on the basis of possession. In the circumstances of the case there is no illegality in the impugned orders. The writ petition has no merit and it is dismissed.