1. Heard Sri Ishwar Dutt Shukla, for the petitioners.
2. This writ petition has been filed against the order of Deputy Director of Consolidation dated 09.02.2016, allowing revision, setting aside the order of Settlement Officer Consolidation dated 25.02.2015 and reinstating order of Consolidation Officer dated 30.07.2013, passed in proceeding under Section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "the Act").
3. The dispute between the parties is in respect of inheritance of land of Ram Himanchal, son of Guru Prasad of chaks-79, 197, 198 and 199 of village Fakharpur, pargana Paschim Rath, district Faizabad. Chak-198 was carved out in the name of Ram Himanchal exclusively and chaks-79, 197 and 199 were jointly carved out in the names of Ram Himanchal along with Ram Yagya and others (respondent-4 to 7) (hereinafter referred to as the respondents).
4. The respondents filed an objection on 12.09.1992, under Section 12 of the Act, for mutation of their names as the heirs of Ram Himanchal, being his brother and brother's sons. They stated that Ram Himanchal was unmarried and died issueless, leaving behind him, the respondents as his only heirs and legal representatives under Section 171 of U.P. Act No. 1 of 1951. Assistant Consolidation Officer, by order dated 17.10.1992 forwarded the objection to Consolidation Officer for trial and disposal on merit.
5. Smt. Sitapati (now represented by the petitioners) appeared before Consolidation Officer on 28.10.1992. She sought time for filing counter objection. The case was adjourned on 20.11.1992, 15.01.1993 and 19.03.1993 but no counter objection was filed. On the basis of oral objection of Smt. Sitapati, Consolidation Officer framed two issues on 28.05.1993. It is alleged that the case was continuously adjourned. On 18.02.1999, Consolidation Officer proceeded ex-parte against the respondents and fixed 04.09.1999 for evidence of Smt. Sitapati. The respondents moved an application for recalling order dated 18.02.1999, on which order dated 18.02.1999 was recalled. Smt. Sitapati filed her counter objection dated 11.09.2002. The case was again adjourned up to 2012. The respondents obtained an order dated 07.01.2013, from this Court directing Consolidation Officer to decide the objection within two months.
6. Smt. Sitapati died in 2012. The petitioners filed an application for substituting them as heirs of Smt. Sitapati under her unregistered will dated 04.03.2002. The respondents contested substitution application and denied execution of will by Smt. Sitapati. Consolidation Officer, by order dated 06.12.2012 directed the petitioners to produce original will. The petitioners instead of producing original will dated 04.03.2002, sought several adjournments but could not file original will dated 04.03.2002. Ultimately, Consolidation Officer by order dated 25.02.2013 allowed substitution application. By order dated 20.05.2013, he re-framed three issues, in absence of will dated 04.03.2002 and adjourned the case, giving opportunity to the petitioners to adduce their oral and documentary evidence.
7. The petitioners took adjournments on 21.05.2013 and 28.05.2013 for adducing evidence but did not adduce any evidence. On 03.06.2013, evidence of the petitioners was closed and 04.06.2013 was fixed for evidence of the respondents. The respondents examined Ghirrau, Setu and Ram Yagya as witnesses and completed their oral and documentary evidence on 07.06.2013. The petitioners again moved an application for giving opportunity of evidence to them. Consolidation Officer, by way of last opportunity again gave 10 days time. The case was adjourned on 28.06.2013 and 01.07.2013. On 08.07.2013, the petitioners filed some documentary evidence but again original will dated 04.03.2002 was not filed. 12.07.2013 was fixed for arguments. On 12.07.2013 and 15.07.2013 again time was granted to the petitioners to produce original will dated 04.03.2002 but it was not filed. Statement of Shivram(petitioner-2) was recorded on 15.07.2013. Consolidation Officer fixed 19.07.2013 for arguments, giving liberty to the petitioners to file their documentary evidence. Then oral arguments were heard. The petitioners again sought for adjournment, for filing documentary evidence, which was refused. They were given liberty to file written arguments, which was filed on 29.07.2013. Consolidation Officer by his order dated 30.07.2013, held that although Smt. Sitapati put appearance in the case in 1992 but marriage deed dated 20.07.1989 was filed on 05.07.2013. Due execution of marriage deed dated 20.07.1989 was not proved by its witnesses. Evidence of Shivram relating to re-marriage of Smt. Sitapati with Ram Himanchal was not reliable. Name of Smt. Sitapati was entered in Pariwar Register of Ram Himanchal by order of Assistant Development Officer, which was set aside by Sub-Divisional Officer by order dated 27.09.2004. It is not proved that Smt. Sitapati was ever remarried to Ram Himanchal as such she was not his heir. The respondents were brother and bother's sons of Ram Himanchal and they were his heirs. On these findings, he allowed objection of the respondents.
8. The petitioners filed an appeal (registered as Appeal No. 1722/1158/1345) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by order dated 25.02.2015 held that although first issue was framed as to whether Ram Himanchal was dead but no finding was recorded on it. In absence of death of recorded tenure holder, proceeding for mutation of his heir was not maintainable. The petitioners filed an application dated 21.05.2013 for summoning Sri Mahadeo Verma, Marriage Officer, Faizabad but his statement was not recorded. Consolidation Officer did not make any effort to get due execution of marriage deed dated 20.07.1989 and will deed dated 04.03.2002, proved. Consolidation Officer decided the case without proper adjudication of various issues. On these findings the appeal was allowed and order of Consolidation Officer dated 30.07.2013 was set aside and the matter was remanded to Consolidation Officer for fresh decision, after giving opportunity of evidence and hearing to the parties.
9. The respondents filed a revision (registered as Revision No. 758) from the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 19.02.2016 held that issues were framed on 28.05.1993. On 18.02.1999, case was proceeded ex-parte against the respondents and Smt. Sitapati was directed to lead her evidence but she could not file original marriage deed dated 20.07.1989 or give any evidence relating to her remarriage with Ram Himanchal although she survived up to 2012. The petitioners based their claim on will dated 04.03.2002 but they did not file original will dated 04.03.2002. Consolidation Officer, by order dated 06.12.2012 directed the petitioners to produce original will. The petitioners sought several adjournments but could not file original will dated 04.03.2002. Ultimately, Consolidation Officer by order dated 25.02.2013 allowed substitution application. By order dated 20.05.2013, he re-framed three issues, in absence of will dated 04.03.2002 and adjourned the case, giving opportunity to the petitioners to adduce their oral and documentary evidence. The petitioners took adjournments on 21.05.2013 and 28.05.2013 for adducing evidence but did not adduce any evidence. On 03.06.2013, evidence of the petitioners was closed and 04.06.2013 was fixed for evidence of the respondents. The respondents completed their oral and documentary evidence on 07.06.2013. The petitioners again moved an application for giving opportunity of evidence to them. Consolidation Officer, by way of last opportunity again gave 10 days time. The case was adjourned on 28.06.2013 and 01.07.2013. On 08.07.2013, the petitioners filed some documentary evidence but did not file original will. Shivram in his oral statement admitted that Ram Himanchal had died. Mutation application was maintainable and contrary findings recorded by Settlement Officer Consolidation in this respect is illegal. Smt. Sitapati although appeared in 1992 and survived up to 2012 but she did not file original marriage deed during her life time. Name of Smt. Sitapati had already been expunged from Pariwar Register by order of Sub-Divisional Officer dated 30.07.2003 and her recall application was rejected on 27.09.2004, which has become final. The petitioners could not adduce any evidence to prove that Smt. Sitapati was ever remarried to Ram Himanchal. They could not adduce any evidence to prove due execution of will dated 04.03.2002. The order of Consolidation Officer did not suffer from any illegality. On these findings the revision was allowed, order of Settlement Officer Consolidation was set aside and order of Consolidation Officer was affirmed. Hence, this writ petition has been filed.
10. The counsel for the petitioners submitted that Settlement Officer Consolidation recorded a finding that proper opportunity of evidence had not been given to the petitioner. Up to 2013, general adjournments were granted in the case. It is only after order of this Court dated 07.01.2013, Consolidation Officer proceeded in haste and without giving proper opportunity of evidence and hearing, he decided the case by order dated 30.07.2013, which resulted in miscarriage of justice. The petitioners produced original registered marriage deed dated 20.07.1989. Division Bench of this Court in Devendra Kumar Vs. State of U.P., 2011 (87) ALR 322 (DB) held that registration of marriage is prima facie proof of marriage. Thus, re-marriage of Smt. Sitapati to Ram Himanchal was proved. Registered marriage deed has been illegally ignored. The respondents took proceeding for mutation of their names as heirs of Ram Himanchal but could not adduce any evidence relating to his death as such mutation application was not maintainable. The order of respondent-1 is illegal and is liable to be set aside.
11. I have considered the arguments of the counsel for the petitioners and examined the record. Admittedly, the parties are Hindu by religion. Alongwith Supplementary Affidavit, the petitioners have filed a copy of counter objection of Smt. Sitapati, in which pedigree of Ram Himanchal was given, admitting the respondents as brother and brother's sons of Ram Himanchal. In the counter objection as well as in oral statement of Shivram (petitioner-2) death of Ram Himanchal and pedigree has also been admitted. Thus there was no dispute in respect of death of Ram Himanchal.
12. Smt. Sitapati took plea that she had remarried to Ram Himanchal on 25.08.1988. Thereafter, Ram Himanchal and Smt. Sitapati executed a marriage deed on 20.07.1989 and got it registered with Marriage Officer, Faizabad. Consolidation Officer framed two issues on 28.05.1993. On 18.02.1999, Consolidation Officer proceeded ex-parte against the respondents and fixed 04.09.1999 for evidence of Smt. Sitapati. The respondents moved an application for recalling order dated 18.02.1999, on which order dated 18.02.1999 was recalled. Smt. Sitapati filed her counter objection dated 11.09.2002. The case was again adjourned up to 2012. Smt. Sitapati died in 2012. During this period Smt. Sitapati could not file original marriage deed dated 20.07.1989 as well as she could not adduce any evidence to prove her remarriage with Ram Himanchal. She also did not enter in the witness box to prove her remarriage with Ram Himanchal.
13. After her death, the petitioners filed original marriage deed dated 20.07.1989. But they could not prove due execution of marriage deed by Ram Himanchal. They moved an application for summoning and recording evidence of Sri Mahavir Verma, Marriage Officer, Faizabad, who registered the deed, which was not allowed by Consolidation Officer. So far as Sri Mahavir Verma is concerned, he only registered the marriage deed. His statement is not relevant to prove remarriage of Smt. Sitapati with Ram Himanchal as such rejection of the application for summoning him does not cause any prejudice to the petitioners. The petitioners examined Shivram to prove remarriage of Smt. Sitapati with Ram Himanchal but he in his statement has stated that he did not know as to when remarriage of Smt. Sitapati with Ram Himanchal had taken place. Thus due execution of marriage deed dated 20.07.1989 was not proved according to provisions of Section 67 of Evidence Act, 1872 and it was not admissible in evidence. Ceremonies relating to remarriage of Smt. Sitapati with Ram Himanchal were not proved from any evidence. Other evidence is extract of Pariwar Register of Ram Himanchal, in which name of Smt. Sitapati was recorded as wife of Ram Himanchal by order of Assistant Development Officer but the name of Smt. Sitapati had already been expunged from Pariwar Register by order of Sub-Divisional Officer dated 30.07.2003 and her recall application was rejected on 27.09.2004. These orders have become final and no reliance can be placed on Pariwar Register. Findings of Consolidation Officer and Deputy Director of Consolidation that remarriage of Smt. Sitapati with Ram Himanchal was not proved, does not suffer from any illegality.
14. Supreme Court in Sumitra Devi Vs. Bhikham Chaudhary, AIR 1985 SC 765 and Surjeet Kaur Vs. Garja Singh, AIR 1994 SC 135, has held that the ingredients of custom and the essential ceremonies of the marriage are required to be pleaded and proved in order to prove marriage. It is admitted to the petitioners that Smt. Sitapati was married to Siyaram, from whom, the petitioners were born. They took plea that after death of Siyaram, Smt. Sitapati remarried to Ram Himanchal on 25.08.1988 but custom and ceremonies of remarriage have not been proved.
15. So far as the case law relied upon by the counsel for the petitioners in Devendra Kumar's case (Supra) is concerned, Supreme Court in Bhagat Ram Vs. Suresh, AIR 2004 SC 436 has held that presumption by reference to Section 114 [Illustration (e)] of the Evidence Act shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. The endorsements made at the time of registration are relevant to the matters of the registration only (see Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1939 PC 117). On account of registration of a document, including a Will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness. Further in Om Prakash Vs. Shanti Devi, (2015) 4 SCC 601 has held that the imperative necessity to produce in evidence a written instrument where it exists; and (b) that the registration of documents does not per se, ipso facto, render it impervious to challenge or and make its reception automatic in curial proceedings.
16. Supreme Court in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, AIR 2013 SC 58, has held that a writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can, of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same.
17. The petitioners claimed their right on the basis of unregistered will dated 04.03.2002, allegedly executed by Smt. Sitapati in their favour who died in the year 2012. Section 169 of UP Act No. 1 of 1951 was amended with effect from 23.8.2004 making it mandatory for the bhumidhar to get the will registered. As Smt. Sitapati died in the year 2012, the unregistered will dated 4.3.2012 cannot be relied upon in view of Section 169 of UP Act No. 1 of 1951, as amended with effect from 23.8.2004 and no reliance can be placed on it. In case due execution of will is not proved then under law the respondents are preferential heirs of Ram Himanchal and the petitioners will have no right. The petitioners sought several adjournments but could not file original will dated 04.03.2002. Ultimately, Consolidation Officer by order dated 25.02.2013 allowed substitution application. By order dated 20.05.2013, he re-framed three issues, in absence of will dated 04.03.2002 and adjourned the case, giving opportunity to the petitioners to adduce their oral and documentary evidence. The petitioners took adjournments on 21.05.2013 and 28.05.2013 for adducing evidence but did not adduce original will. Thus writ petition filed by the petitioners is not maintainable.
18. In view of the aforesaid discussion, the impugned order does not suffer from any illegality. The writ petition has no merit and it is dismissed.
Order Date :- 18.3.2016/Rahul/-