Court No. - 9
AFR Case :- WRIT - B No. - 202 of 2019 Petitioner :- Sanjay Respondent :- Deputy Director Of Consolidation And 3 Others Counsel for Petitioner :- Amit Kumar Pandey,Dr. C.P. Upadhyay Counsel for Respondent :- C.S.C. Hon'ble Anjani Kumar Mishra,J. Heard learned counsel for the petitioner.
The instant writ petition seeks a writ of certiorari for quashing the order dated 27.10.2018 passed by the Deputy Director of Consolidation and the order dated 06.05.2006 passed by the Consolidation Officer.
The facts of the case briefly stated are that the dispute in the writ petition pertains to land, which was recorded in the name of one Ram Chandra. The petitioner claims on the basis of an unregistered will in his favour executed by said Ram Chandra on 01.12.1998.
It appears that on the start of consolidation operations, an objection was filed by the petitioner claiming on the basis of the will aforesaid.
The objection was allowed by the Consolidation Officer vide order dated 20.08.2002, the name of Ram Chandra was ordered to be expunged from Khata Nos.51 and 295 and in his place, the petitioner was ordered to be recorded.
Against this order, a restoration application was filed on 25.04.2003 by Kusum Devi and others.
The Consolidation Officer vide order dated 06.05.2006 allowed this restoration application on the ground that no notice or proclamation was available on the record, meaning thereby that no notice was ever issued by the Consolidation Officer on the objection, it was also opined that since there was a dispute and the claim was based on a will, a proclamation should necessarily have been issued. The restoration application was accordingly allowed after condoning the delay in filing the same. The order dated 20.08.2002 was set aside and it was provided that the objection be decided after issuing a proclamation.
Against the order allowing the restoration application and restoring the objection, the petitioner preferred a revision.
He also preferred another revision against same orders passed in proceedings under Section 12 of the U.P. Consolidation of Holdings Act. There is no dispute, as regards, the other revision, which arose from the proceedings under Section 12 of the U.P. Consolidation of Holdings Act in the instant writ petition.
The Deputy Director of Consolidation has held that the revision no.58 /1721 is to be without substance. It is this revision, which was directed against the order, which have been referred to above in the proceedings under Section 9A(2) of the U.P.Consolidation of Holdings act.
The contention of counsel for the petitioner is that the person, namely, Kusum Devi, who had filed restoration application had no concern, being a married daughter of Ram Chandra. The heir of Ram Chandra would be his brother, who was alive when the objection was filed and remained alive till the year 2014. He never raised any objection.
It is, therefore, sought to be contended that the restoration application was filed by an unconcerned person, who would not acquire any title, even if, the will in favour of the petitioner is not proved.
Counsel for the petitioner is not in a position to state the actual date of death of Ram Chandra. He however submits that probably he died sometime in the year 2000.
It is settled law that the issue of succession to agricultural land is to be governed by Section 171 of the U.P. Zamindari Abolition and Land Reforms Act. In case, Ram Chandra died in the year 2000 as is sought to be conveyed, the succession would be governed by Section 171 existing on the date of death of Ram Chandra.
Section 171 of the U.P. Zamindari Abolition and Land Reforms Act as amended by U.P. Act No.29 of 1998 in sub-section 2(d) mentions a married daughter of a tenure holder in the line of succession. The brother and the unmarried sister of a deceased find mention in sub-section 2(e). Therefore, on the date of death, the married daughter stood higher in the order of succession as compared to a brother.
Besides, Section 171 (1) (ii) clearly provides that an heir specified in a proceeding clause of Section 171(2) shall inherit to the exclusion of all heirs specified in succeeding clauses of section 171(2), for this reason, the submission of counsel for the petitioner that the objection and restoration application was filed by a unconcerned person, cannot be accepted.
Admittedly, since there was as many as 6 married daughters of Ram Chandra was alive on the date of his death, his brother, who is lower in the line of succession would not inherit the land of Ram Chandra in any case.
It is, therefore, writ large on the face of the record that none of the legal heirs of Ram Chandra were ever put to notice of the objection of the petitioner as is the categorical finding returned by the Consolidation Officer, while allowing the restoration application.
The contention of counsel for the petitioner is that the will had been proved by producing the marginal witness and only thereafter, the petitioner was ordered to be recorded over the land also cannot be accepted because the persons, who had a right to oppose the will being the natural heirs of Ram Chandra, were never afforded any opportunity to cross-examine the witness, who are alleged to have proved the will in favour of the petitioner.
Under the circumstances, this Court does not find the instant writ petition to be worthy of any interference.
In any case, by the orders impugned, a fresh proclamation has been ordered to be issued.Thereafter, the petitioner can always prove his will after the persons opposing the same, have been given an opportunity to cross-examine the marginal witness as also any other witness that may be produced by the petitioner to prove his case In view of the foregoing discussion, this writ petition is found to be without merit and is accordingly, dismissed.
Order Date :- 29.1.2019 RKM