Court No. - 9
Case :- WRIT - C No. - 14524 of 2019 Petitioner :- Gilandar Singh And 3 Others Respondent :- Commissioner And 6 Others Counsel for Petitioner :- Ashish Dwivedi Counsel for Respondent :- C.S.C.,Arpit Agarwal
Hon'ble Anjani Kumar Mishra,J.
Heard learned counsel for the petitioners, and Shri Arpit Agarwal, learned counsel for respondent nos. 3, 4, 5 and 6.
The writ petition arises out of proceedings under Section 34 of the U.P. Land Revenue Act.
The dispute pertains to land which was recorded in the name of one Hori Lal. It is contended that on his death three sets of objections were filed. One by the contesting respondent nos 3 to 6 claiming on the basis of registered will allegedly executed by Hori Lal. The second objection been filed by the father of the petitioners claiming on the basis of succession, as brother of the deceased. Yet another objection was raised by respondent no. 7 claiming on an registered will by Hori Lal.
The contention of counsel for the petitioners is that initially the Tehsildar accepted the petitioners case, finding the will set up by the respondent to be shrouded in suspicious circumstances. However, at the appellate stage, the matter was remitted back to the trial court for fresh consideration. Against the order of remand, the matter travelled up to the High Court where an order was passed that the appellate authority decide the appeal itself on its merit.
In pursuance of the order of the writ court, the appeal was decided accepting the registered will set up by respondent nos. 3 to 6. The consequential revision has been dismissed. Hence, this writ petition.
It is contended that the order of the writ court required the appellate court to decide the appeal on the basis of the evidence already available on record. No fresh evidence was filed nor could have been filed. On the basis of the same evidence, the Tehsildar has taken a view to the contrary and therefore, the orders impugned namely those passed by the appellate and revisional court are vitiated and liable to be set aside.
I do not find any merit in the submission made by the counsel for the petitioners. The first appellate court being the last court of fact, was fully competent to appreciate the evidence available on record. Upon appreciation of the evidence, the view taken by the appellate court cannot be said to be illegal till such time the view taken is so manifestly absurd that it could not have been arrived at any rational person. Such is the position of the case at hand.
Under the circumstances, in case the first appellate court upon appreciation of the evidence on record has taken a view contrary to that taken upon Tehsildar, the first appellate court was well within its right to do so and there is no error, much less manifest error in such exercise of jurisdiction of the appellate court.
Under the circumstances, the revisional court has rightly affirmed the order passed by the first appellate court and for the same reason I do not find any justification to interfere in this writ petition.
This Court also do not consider it expedient to enter into the controversy in view of Section 40 A of the U.P. Land Revenue Act which in effect provides that the findings returned by the mutation courts are not binding upon the courts in regular title proceedings.
Under the circumstances, in case, the petitioners feel aggrieved it is always open for them to sue for a declaration in their favour.
Subject to the above , the writ petition fails and is dismissed.
Order Date :- 29.4.2019 sweta