Court No. - 36
Case :- WRIT - B No. - 3287 of 2018 Petitioner :- Rajeshwar Pandey Respondent :- Ddc, Mau And 10 Others Counsel for Petitioner :- Pradeep Kumar Rai Counsel for Respondent :- C.S.C.,Dhirendra Singh,Ramesh Chandra Upadhyay
Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Pradeep Kumar Rai, learned counsel for the petitioner and Sri J.P. Singh, learned Advocate appearing on behalf of contesting respondent no. 4.
With the consent of learned counsel for the parties, the writ petition has been heard for final disposal and is being decided finally without calling for the counter affidavit.
The present writ petition is directed against the orders dated 3.2.2018, 4.9.2014 and 19.4.2014 passed by the Consolidation courts in a proceeding under Section 9 of U.P. Consolidation of Holdings Act. It appears that as per the admitted pedigree narrated in paragraph '9' of the writ petition, the original tenure holder of the disputed property was Vishwanath Pandey, who died intestate. The petitioner and the contesting respondent no. 4 are sons of Vishwanath Pandey. The petitioner is claiming on the basis of succession under Section 171 of U.P. Consolidation of Holdings Act. On the other hand, the contesting respondent no. 4 claims his right to the exclusion of the other brothers (heirs and legal representatives of deceased tenure holder) on the basis of a Will dated 2.4.1998.
In a proceeding under Section 9 of U.P. Consolidation of Holdings Act initiated by the respondent/opposite party no. 2 setting up his Will, the dispute was raised by the petitioner with the assertion that the Will was surrounded by suspicious circumstance and moreover, the testator of the Will was not in a sound mental condition.
Three courts below have rejected the objection of the petitioner on the ground that Will was registered deed and further in a proceeding under Section 34 of U.P. Land Revenue Act, the dispute related to succession of the disputed property has been decided by the competent court.
These orders are under challenge in the present writ petition with the assertion that the title suit cannot be decided on the basis of the decision in a summary proceeding under Section 34 of Land Revenue Act. The order passed in a summary proceeding would not operate as res-judicata. Moreover, when the propounder of the Will was beneficiary and an objection has been taken with regard to the genuineness thereof, the onus shifted upon the propounder to prove the Will beyond all reasonable doubts. In any case, by the mere fact that the Will was a registered deed, the Consolidation courts could not have rejected the objections of the petitioner without dealing with the merits thereof.
Sri J.P. Singh, learned counsel for the contesting respondent no. 4, on the other hand, tries to defend the orders impugned for the reasoning given therein. He has further invited attention of the Court to the order dated 29.12.2000 passed in the proceeding under Section 34 of Land Revenue Act to submit that the marginal witnesses of the Will were produced before the Tensildar and Will was proved in accordance with law. It is thus contended that the Consolidation courts did not commit any illegality in relying upon the said order and rejecting the objections of the respondents.
Dealing with the submissions of learned counsel for the parties and perused the record, it is more than apparent that the Consolidation courts did not address the objections filed by the petitioner under Section 9 of U.P. Consolidation of Holdings Act on merits. The dispute raised by the petitioner regarding the genuineness of the Will was decided on the basis of the orders passed in a summary proceeding under Section 34 of Land Revenue Act. In view of the settled position of law that the orders passed in a summary proceeding cannot be made basis for decision in the title suit, this Court finds that the orders passed by the Consolidation Courts cannot be sustained.
Resultantly, the orders dated 3.2.2018, 4.9.2014 and 19.4.2014 passed by the Consolidation courts are hereby set aside.
The matter is remitted back to the Consolidation Officer to decide the objections filed by the petitioner under Section 9 of U.P. Consolidation of Holdings Act afresh after considering the evidence of the parties.
At this stage, Sri J.P. Singh, learned Counsel for the contesting respondent no. 4 submits that an opportunity be provided to respondent no. 4 to adduce his evidence.
On the said submission, a direction is issued to the Consolidation Officer to provide opportunity to all the contesting parties to adduce their evidence and make an endeavour to decide the matter, expeditiously, preferably within a period of four months from the date of submission of certified copy of this order.
The position of law with regard to the appreciation of Will as a last wish of the testator and the required enquiry on the question of genuineness of the Will shall be taken care of by the Consolidation Officer.
It goes without saying that it is open for the parties to raise all the arguments raised herein before the Consolidation Officer.
Subject to the above observations and directions, the writ petition is allowed.
Order Date :- 27.3.2018 Brijesh