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Judgment
Sharad Kumar Sharma, J
The present revision has been preferred by the petitioners being aggrieved against the orders passed by the Assistant Settlement Officer, Consolidation in Appeal No. 473, Murti Devi and others v. Shyam Singh and others, which was decided by the Court of Settlement Officer Consolidation, Roorkee, District Haridwar by its judgement dated 4th July 2017, as well as against the Revisional Court's order, as rendered by the Revisional Court under Section 48 of the Consolidation of Holdings Act, 1953 in Revision No. 72 of 2016-17, Samay Singh and others v. Smt. Murti Devi and others.
Precisely to begin with the Hiro Devi, admittedly, as per the case of both the parties, and as per revenue records, she was the owner of the property, lying in khata No. 185 and 168, (Now currently re-numbered as chak No. 424 and 366) and she was the widow of late Mr. Tara Chand. The controversy, which germinates here is pertaining to the rival claim raised by the petitioners, who happen to claim to be the sons of the brother-in-law of Hiro Devi, as well as, on the other hand, the claim of the petitioner is being opposed by the daughters of Hiro Devi, who have raised their claim based on the Will, executed in their favour and was registered on 5th April 1980, whereas on the contrary, the petitioners raise their claim in relation to the property vested with Hiro Devi now in dispute on the basis of an unregistered Will dated 16th April 1990 on the premise that the Will executed by Hiro Devi on 16th April, 1990 was the last testament which was executed by her prior to her death, on the basis that Hiro Devi lived with the petitioner's father after the death of her husband late Mr. Tara Chand.
Briefly put, admittedly, prior to the controversy in question, the petitioners herein had initiated the proceedings under Section 34 to be read with Section 35 of the Land Revenue Act, 1901 to get themselves recorded in the revenue records based on the Will dated 16th April 1990. The petitioners contend that their application under Section 34 was allowed and later on, on a Restoration Application preferred by the respondents, the same was recalled and ultimately it was put to challenge in a revision under Section 219 of the Land Revenue Act of 1901. It is at that stage when the proceedings which were pending in a Revision under the Land Revenue Act, the village was notified under Section 4 to be read with Section 5(2) of the Consolidation of the Holdings Act. The legal consequence which would follow due to Notification of village being brought under the consolidation, the proceedings under Section 219 of the Land Revenue Act would abate, and all rights claimed by the parties was to be raised and decided by consolidation authorities as per the provisions contained in it, since being a special statue.
In order to venture further it become necessary at this stage itself to make reference to Section 4, as well as Section 5 of the Consolidation of Holdings Act. The Consolidation of Holdings Act is a self-contained Act, which deals with the very genesis of deciding all the rights and claims of the parties in relation to their claim to a holding as defined under the said Act or the land as defined under Section 3(14) of the U.P.Z.A. & L.R. Act, 1950 and that is why the effect of the Notification issued under Section 4 which has been dealt with under Section 5 of the said Act is that it provides that all proceedings pending in relation to the subject matter i.e. the Land / Holding as defined under the Act itself in its sub Section (5) of Section 3 would be taken by the Courts competent and as created under the Consolidation of Holdings Act and particularly, it makes a reference under sub clause (a) of sub Section (2) of Section 5 that every proceedings for, "correction of records", every suit and proceedings in respect of "declaration of rights" and henceforth all pending proceedings at the time of the Notification would abate. Meaning thereby, the use of the term "abatement" by the Statute means that any proceedings in relation to the subjects covered by sub clause (a) of sub Section (2) of Section 5 would stand to be nonest and all claims thereto in relation to land, it has to be adjudicated on the basis of the law or the procedure contemplated under the Consolidation of Holdings Act of 1953.
After the abatement of the proceedings as a consequence of the issuance of Notification under Section 4 on 28th January 1992, the petitioners based on an unregistered Will dated 16th April 1990, had preferred an objection under Section 9A(2) of the Act, on the other hand, the respondent too had raised their claim for declaration of their right on the basis of the registered Will dated 5th April 1980.
At this stage itself, it would be essential to refer that Hiro Devi, met with the sad demise on 14th May 1990, and according to the argument, which has been extended by the learned counsel for the petitioners at the stage when the Will was executed, she was so physically feeble that it was practically impossible for her to have any mobility to produce herself before the sub-Registrar for the purposes of registration of the Will dated 16th April 1990.
The procedure, as contemplated for the proceedings which are held under the Consolidation of Holdings Act since they relate to a declaration of a right and a title in relation to the properties covered under the Act, the procedure is self-contained under Chapter V of the said Act. In fact, what has happened in the present case is that on the enforcement of the Notification under Section 4 read with Section 5 of the Consolidation of Holdings Act, the petitioners had preferred an objection under Section 9A(2) of the Consolidation of Holdings Act, for declaration of his rights based on unregistered Will dated 16th April, 1990, which was registered as Case No. 464/3790 + 3969/101/33, Shyam Singh v. Vimla Devi and others, which was initiated based on the order dated 04.10.2002 passed by the Assistant Settlement Officer Consolidation, Haridwar in Appeal No. 120 under Rule 65, had remanded the matter for its reconsideration.
As per the claimed raised by the petitioners in their objection before the Consolidation Officer (Annexure 3 to the writ petition) the respondents, in their objection dated 29.08.1996 have sought a declaration in relation to the property as described therein on the basis of unregistered Will dated 16th April 1990 in relation to Khata No. 168 and 185 had prayed for the following relief:-
"अतः श्रीमान जी से प्रार्थना है कि श्रीमति हीरो मृतक प्रार्थीगणों की सगी चाची है और अपने जीवनकाल में हमेशा से प्रार्थी के साथ रही है प्रार्थीगण ही मृतक हीरो के वारिस हैं। इसलिए विपक्षी गण बिमला देवी मूर्ति देवी महेन्द्रकुमार विरेन्द्र कुमार जहो बतौर वारिस दर्ज किये गये हैं के स्थान पर प्रार्थी गण श्यामलाल, श्यामसिंह बालेश्वर पुत्रगण शेरसिंह दर्ज किया जावे। कृपाहोगी।
दिनांक 29.8.96''
The objection as preferred on 29th August 1996 was proceeded with before the Court of Consolidation Officer along with another objection which was preferred by the respondent yet again by invoking Section 9A(2) of the Consolidation of Holdings Act for declaration of their right in relation to the subject matter i.e. the property in question by filing of an objection under Section 9A2 based on the registered Will dated 16th April 1990.
The Court of the Consolidation Officer, after considering the rival contention and particularly in view of the findings which has been recorded pertaining to the scrutiny of the veracity of the two Wills as recorded by the Consolidation Officer, the Consolidation Officer, decided the matter on 24th October 2003, thereby holding thereof that the present petitioners they hold a right in relation to the property based on the Will dated 16th April 1990. Operative part of the order dated 24th October, 2003 reads as under:-
"आदेश
ग्राम हथियाल परगना भगवानपुर तहसील रूड़की जिला हरिद्वार के खाता खतौनी सं. 185 व 168 में श्रीमति हीरो देवी पत्नि ताराचन्द मृतक का नाम खारिज होकर वसीयत दिनांक 16.4.90 के आधार पर श्यामसिंह व श्यामलाल व बालेश्वर पुत्रगण शेरसिंह नि0 ग्राम हथियाथल परगना भगवानपुर तहसील रूड़की जिला हरिद्वार का नाम बतौर वारिस वसीयत दिनांक 16.4.90 के आधार पर दर्ज हो। आपत्ति श्रीमति बिमला आदि दिनांकित 6.9.96 व 17.8.96 बावत वसीयत दिनांकित 5.4.80 के आधार पर नाम दर्ज करने के सम्बन्ध में बलहीन होने के कारण निरस्त हो। तस्दीक खतौनी के समय खता सं 185 व 168 के सम्बन्ध में विभाजन तथा विरासत के संबंध में उठायी गयी त्रुटियां निरस्त हों। पत्रावली वाद अमलदरामद दाखित दफतर हो।
दिनांक :-24.10.03
Being aggrieved against the said order / judgement dated 24th October 2003, the respondent Nos. 1, 4 and 5 including Vimla Devi, herein had preferred an Appeal on 28th October, 2003, invoking Section 11(1) of the Consolidation of Holdings Act, which was registered as an Appeal No. 722 of 2003, which was later on numbered as an Appeal No. 678 of 2003, later further renumbered as Appeal No. 14, Murti Devi and others vs. Shyam Singh and others. The Assistant Settlement Officer, Consolidation in an Appeal thus preferred had rendered the judgement dated 8th May, 2009, by virtue of which the Appeal preferred by the respondent was dismissed and as a consequence thereto, the Assistant Settlement Officer, Consolidation had affirmed the judgement of the Consolidation Officer dated 24th October 2003. Being aggrieved against the judgement of the Settlement Officer, Consolidation dated 8th May 2009, a Revision was preferred by the respondent before the Deputy Director, Consolidation on 25th July, 2009, which was numbered as Revision No. 56 of 2015-16, (old No. 121 of 2012-13), Murti Devi and others v. Shyam Singh and others, which was decided by the Deputy Director, Consolidation by the judgement dated 22nd July 2016.
Being aggrieved against the judgement dated 8th May 2009, as well as, the judgement dated 22nd July 2016, the present petitioners had preferred a writ petition being Writ Petition (M/S) No. 2503 of 2016, Shyam Singh and others v. Deputy Director, Consolidation/Additional Collector, District Haridwar & others, which was decided by the co-ordinate Bench of this Court by the judgement dated 7th September 2016, with the following directions:
"7. The learned counsel for the parties agreed that the case may be heard by the Settlement Officer; but, they requested that it may be observed in the judgment that the Settlement Officer may not be influenced by the observation made by the Deputy Director Consolidation in his judgment.
Consequently, the writ petition is disposed of by directing the Settlement Officer to decide the appeal on its own merit; but, without being influenced by the observation made by the Deputy Director, Consolidation in his judgment. It is also made clear that the Settlement Officer will give proper opportunity of hearing to all the parties.
Learned Senior Counsel for the petitioner would submit that case is listed before the Settlement Officer on 09.09.2016 and he may be given liberty to move an application seeking adjournment before the Settlement Officer, Consolidation. Such liberty is granted. In case, such application is filed before the Settlement Officer, Consolidation, he shall adjourn the case only for 10 days."
On the revival of the proceedings at the appellate stage after the judgement rendered by the co-ordinate bench of this Court on 7th September 2016, in Writ Petition (M/S) No. 2503 of 2016, the matter revived back and the same was registered as Appeal No. 473 and had been adjudicated by the impugned judgement dated 4th July 2017, whereby the Appeal was allowed and the judgement of the Consolidation Officer, dated 24th October, 2003 was set aside.
Being aggrieved against the said order of allowing the Appeal by the judgement dated 4th July 2017, the respondent preferred a Revision on 11th July, 2017, being Revision No. 72 of 2016-17, Shyam Singh v. Smt. Murti Devi and others, which has been adjudicated by the Court of Deputy Director, Consolidation vide its impugned judgement and order dated 4th September 2017, and as a consequence thereto, the Revision preferred by the petitioner was dismissed and the Deputy Director, Consolidation had affirmed the judgement dated 4th July 2017, as passed by the Assistant Settlement Officer, Consolidation against which the present writ petition has been preferred.
The learned counsel for the petitioner, while addressing this Court as against the impugned cause of action arising from impugned orders has drawn the attention of this Court to the findings, which has been recorded by the Court of Settlement Officer, Consolidation from the viewpoint (1) That the Court of Settlement Officer, Consolidation in fact, after the remand being made by this Court vide its judgement dated 7th September, 2016 had not adhered to the strict condition of remand, which was laid down by the judgement dated 7th September 2016, and rather has substituted its finding after hearing the petitioners had proceeded to reaffirmed the earlier findings rendered by the Settlement Officer, Consolidation in his judgement dated 4th July, 2017.
(2) He further submits that at the stage of proceedings before the Settlement Officer, Consolidation, there was no fresh evidence adduced or no fresh case was filed and there were no changed circumstances, where the learned Appellate Court could have proceeded to decide the Appeal by allowing the same as against the judgement dated 24th October 2003 as passed by the Consolidation Officer.
(3) He wants to submit that the order passed by the Settlement Officer, Consolidation on 4th July 2017, after the order of remand dated 7th September, 2016, is nothing but a replica of the earlier judgement of the Settlement Officer Consolidation and the judgement impugned dated 4th July 2017, cannot be said to be rendered by the learned Appellate Court after applying its independent mind and even so much so that the learned Appellate Court had proceeded to record almost verbatim the same findings, which has been recorded by the earlier Appellate Court in its judgement dated 8th May 1990.
In support of his contention, the learned counsel for the petitioner has made reference to a finding, which has been recorded at the various stages by the learned Appellate Court after the order of remand and in the light of the findings, which has been recorded, the learned counsel for the petitioners intended to submit that even that process adopted by the Settlement Officer, Consolidation was more or less with a predetermined mind only after considering the findings, which has already been earlier recorded by the Settlement Officer, Consolidation which is in violation of the directions issued on 7th September 2016 by this Court, in the order of remand.
Few legal questions, which arises for determination before this Court are :-
(1) As to for the purposes of determination of a right which will, will have precedence as against the claim of the respondent, which was based upon the earlier registered Will of 5th April, 1980. In support of his contention, the learned counsel for the petitioners had contended that it is the settled law that the subsequent Will of the testator, which was executed on 16th April 1990, is bound to have precedence over the earlier Will, as it was the last testament of the deceased. He further wanted to submit that the testament of 16th April 1990, will have precedence over the earlier Will of 1980, for the reason that the testator, at the time of execution of the Will on 16th April 1990, had made a reference that this happens to be the last Will and any earlier will, as executed by her, will have no effect and would be treated to have been cancelled. At this stage itself, this Court considers it necessary to point out that the said Will of 16th April, 1990 was witnessed by Mr. Kalu Ram and one Mr. Brahm Chandra.
(2) The argument of the learned counsel for the petitioners was that no reliance would be placed on the Will dated 5th April 1990, for the reason that the petitioners who rely on it had not placed on record the Will dated 5th April 1990, and hence no reliance can be placed on the same until and unless it is filed and judicially it is scrutinised by the Court of law.
(3) Learned counsel for the petitioners submits that the argument, as extended by the learned counsel for the respondents that the Will dated 16th April 1990, on which the petitioners claim their right was in fact, could not be proved before the learned Appellate Court after the remand because as per the provisions contained under Section 63 to be read with Section 68 of the Indian Evidence Act. The logic behind the argument was that on the revival of the proceedings after the judgement passed by this Court on 7th September 2013, the witnesses of the Will were pre deceased, and the same could not have been produced before the Settlement Officer, Consolidation after the remand of the Appeal so as to enable the petitioner to prove the Will as per provisions of Indian Evidence Act..
The learned counsel for the respondents, in response to the argument, as extended by the learned counsel for the petitioners on the aforesaid ground, had controverted the same on various grounds.
(1) The submit that the contention raised by the petitioner that none of the attesting witness to the Will dated 16th April 1990 were alive at the time of the order of remand, who could be produced before the Court of Settlement Officer, Consolidation to prove the Will in accordance with the provisions contained under Section 63 to be read with Section 68 of the Indian Evidence Act is absolutely false version as they were alive yet were not produced by the petitioners to prove the Will as per law.
(2) Learned counsel for the respondents had submitted that the theory, which was developed by the petitioners pertaining to the propriety of the Will dated 16th April 1990, pertaining to the two witnesses, in fact, they ought to have been produced before the Principal Court at the stage under Section 9A(2) of the Act and the Will ought to have been proved by the petitioners by producing their witnesses before the Principal Court.
(3) He has submitted in light of the findings, which has been recorded before the Court of Consolidation Officer that both the witnesses of the Will dated 16th April 1990 were alive and they were working; but, still they were not produced by the petitioners before the Court below i.e. the Court of Consolidation Officer, to prove the Will.
(4) He also submits that the production of the affidavit, which was submitted in the proceedings under Section 34 read with Section 35 for the purpose of determination of a right in relation to the properties of being recorded based on a Will dated 16th April, 1990, which was subject matter of the Will according to the petitioners, they were produced and their affidavit was also brought on record, even the Naib Tehsildar was also produced as witness that itself was to show as a proof that the Will dated 16th April 1990 was executed by Hiro Devi in their favour and thus the right would devolve upon them cannot be relied as the proceedings under the Land Revenue Act stood abated in the light of the provisions contained under Sections 4 and 5 of the Consolidation of Holdings Act. Thus affidavit will become nonest.
The learned counsel for the petitioners submitted that the claim of the respondents cannot be accepted for the reason that the so-called registered Will dated 5th April 1980, could not be relied with, for the reason that before any of the Courts below, the said Will was never produced by the respondent to substantiate their claim in relation to the property in question in order to settle their rights based on the Will of 1980.
The learned counsel for the respondents, in response to it, had submitted that the contention of the petitioners with regards to the averments pertaining to the non production of the Will of 1980 in the proceedings cannot be accepted in view of the finding, which has been recorded by the Court of the Consolidation Officer, to the effect that the certified copy of the Will dated 5th April, 1980 was produced before the Court of Consolidation Officer, and it was very well before the Consolidation Officer when the direction under Section 9A(2) was being decided by the judgement dated 24th October 2003. The propriety of certified copy of the Will was not denied by the respondent, the relevant part of the order as passed by Consolidation Officer, Roorkee dated 24th April, 2003 reads as under:-
"चूंकि वर्णित वाद पत्रावली में विमला देवी आदि द्वारा जो दिनांक 5.4.80 की वसीयत की सत्ण्य प्रतिलिपि पत्रावली पर दाखिलकी गयी है उसके आधार पर उनका कथन है कि असल वसीयत कहीं गुम हो गयी है"
He further submitted that in accordance with the finding, which has been recorded by the Consolidation Officer, the certified copy was produced on account of the fact that it was a specific case by the respondents before the Court below that the original Will dated 5th April 1980, was lost somewhere and hence the original Will dated 5th April 1980 could not be produced. The fact of production of certified copy and its propriety was not denied by the petitioners.
Further, in extension of his argument, the learned counsel for the respondents has submitted that in view of the provisions contained under Section 72 of the Indian Evidence Act, the certified copy which was produced on record before the Consolidation Officer could be read in evidence for the purposes of substantiating that her right was being created and matured on the basis of a document which was a registered document:-
"72. Proof of document not required by law to be attested.- An attested document not required by law to be attested may be proved as if it was unattested."
Another important argument, which was extended by the learned counsel for the respondents was from the viewpoint that, let us presume, for a movement, that the Will dated 16th April 1990, if at all, it had any overriding effect over the previous Will of the Hiro Devi, the said argument was not accepted on the ground that in the Will of 1990, which was executed in favour of the petitioners in 1990 the Will never referred to any specific document/Will of 1980 or any testament with its details which the testator intended to overcome the same by the subsequent Will.
The learned counsel for the respondents submitted that the theory with regards to flowing of a right in favour of the petitioners by the Will dated 16th April 1990 could have only been accepted provided that the attesting witness were produced before the Court below. The Court below herein would refer to a Principal Court of Consolidation Officer, where the objection was to be decided under Section 9A(2) of the Act. In support of his contention, he has drawn the attention of this Court to the contents of the finding, which has been recorded by the Consolidation Officer to the effect that the two witnesses at the time when the proceeding was being carried before the Consolidation Officer, they were very well alive and if at all any right acquired or was required to be settled in pursuance to the Will dated 16th April 1990, then it ought to have been proved by the petitioners by producing the attesting witnesses before the Court of Consolidation Officer itself. But the same was not done and admittedly, instead of producing the attesting witnesses, the petitioner had produced himself, one Mr. Ram Singh and Satish Kumar, Advocate and scriber of the Will; but the attesting witness which is mandatorily contemplated under Section 68 of the Indian Evidence Act, they were not produced before the Court of Consolidation Officer to prove the execution of the Will. The witnesses of Will of 16th April, 1990 were alive and were not produced, also further that Consolidation Officer relied affidavits of abated proceedings under the Land Revenue Act is proved from the following findings:-
"दिनांकित 16.4.90 की वसीयत को सिद्व करने के लिए उसकी वसीयत के गवाहान जो मेरे समक्ष राजकीय सेवा में उपलब्ध होने के कारण न्यायालय में उपस्थित नहीं हो सके के सम्बन्ध में कहा है कि उन्होंने नायब तहसीलदार रूड़की के समक्ष अपने ब्यान तहरीर करये हैं जिन्हें स्वीकार किया जावे नायब तहसीलदार रूड़की के समक्ष तहरीर कराये गये वसीयत के गवाहान दिनांक 16.4.90 की सत्यप्रतिलिपि पत्रावली पर उपलब्ध करायी है जिसके आधार पर मैं इस निष्कर्ष पर पहुंचा कि दिनांक 16.4.90 के वसीयत के गवाहान आज न्यायालय में उपस्थित नहीं हो सके फिर भी वे नायब तहसीलदार रूड़की में पूर्व दायर वाद में उपस्थित हुए तथा उन्होंने वहां दिनांक 16.4.90 की वसीयत को पूर्ण रूप से सिद्व किया है जिनके बयानों की सत्य प्रतिलिपि पत्रावली पर उपलब्ध करायी है।''
"यहॉ तक की वसीयत के गवाह कालूराम व ब्रहमचन्द्र जो कि जीवित है उनका कोई बयान भी नहीं लिया गया है। अवर न्यायालय में वसीयत दिनांक 16.4.90 को नायब तहसीदार रूड़की के समक्ष हुए गवाहों के बयान के आधार पर सिद्ध माना है। जोत चकबन्दी अधिनियम की धारा 4(2) की विज्ञप्ति हो जाने के कारण यदि वाद अवेट हो जाता है तो पूरी कार्यवाही अवेट मानी जाती है।''
There is another limb of argument, which has been agitated by the learned counsel for the respondents that the contention raised by the petitioners that the witnesses of the Will were not alive even at the appellate stage after the remand, was a wrong perception for the reason that according to the findings, which has been recorded by the Appellate Authority, it rather shows that both the attesting witnesses were alive.
"प्रतिउत्तरदाता गण द्वारा दाखिल की गयी वसीयत दिनांक 16.4.90 फर्जी, जाली व बनावटी है फिर भी अवर न्यायालय ने अपंजीकृत वसीयत पर विश्वास कर भारी भूल की है यहॉं तक की वसीयत के गवाह कालूराम व ब्रहमचन्द्र जो कि जीवित हैं उनका कोई भी बयान भी नहीं लिया गया है। अवर न्यायालय ने वसीयत दिनांक 16.4.90 को नायब तहसीलदार रूड़की के समक्ष हुए गवाहों के बयान के आधार पर सिद्ध माना है। जोत चकबन्दी जोत चकबन्दी की अधिनियम की धारा 4(2) की विज्ञप्ति हो जाने के कारण यदि वाद अवेट हो जाता है तो पूरी कार्यवाही अवेट मानी जाती है और उस कार्यवाही में पारित आदेश एवं समस्त कार्यवाही प्रभावहीन हो जाती है। अवर न्यायालय ने अवेट हुए बयान के आधार पर वसीयत दिनांक 16.4.90 को सिद्ध मान कर त्रुटि की है।''
Another important aspect, which is required to be considered before this Court is as to the efforts made by the petitioners before the Settlement Officer, Consolidations to prove the Will dated 16th April 1990 by producing the witnesses of which the petitioner has adduced in the proceedings under Section 34 read with Section 35 of the Land Revenue Act, the same cannot be considered because in view of the judgement as reported in 1995 All LJ 1372, Gobardhan v. Dy. Director of Consolidation and others, it has been settled down by the Allahabad High Court that once the proceedings has abated, it's consequential effects would be that any evidence or statement, which has been recorded in the summary proceedings under the Land Revenue Act, they cannot be taken into consideration for the purposes of deciding the proceedings under the Consolidation of Holdings Act, which determines the right and or the principal proceedings, hence any evidence or statement recorded in the summary proceedings, cannot be taken into consideration to decide the validity of the Will.
"12. Relevant part of the judgment in Ram Prasad (supra) strongly relied upon by Mr. Rai runs as follows:-
"7. The question then is whether the suit of the appellants was not maintainable, as contended by Shri Satish Chandra. No doubt Section 242 prohibits the jurisdiction of the civil Courts only in respect of the rights given and claims arising under Tenancy Act. But the relief claimed in the suit was one for a declaration that the decree granted under Section 59 was vitiated by fraud and collusion. Admittedly, such a relief, when cannot be given by revenue courts, the suit undoubtedly becomes maintainable under Section 9 of C.P.C. In the suit, the findings recorded by the Civil Courts are that the respondent was not resident of Salarpur. He was already having his wife and he was not cultivating the lands alongwith Smt. Jivani. It was also found that the plea of joint cultivation was not raised in the joint written statement of him and Smt. Jivani filed in the first instance. It was only averred in the additional written statement after her demise. The original plea was of sharing the crop between him and Smt. Jivani which, by operation of proviso to Section 33(2), does not create a right to joint tenancy. Accordingly the declaration given in the civil suit for the reasons stated by the trial court that the decree obtained in the suit under Section 59 was a collusive decree is perfectly legal. That was confirmed by an elaborate reasoning in the judgment rendered by the 3rd Addl. Distt. Judge on April 1, 1965. Pending the second appeal notification under Section 5 of the Consolidation Act came to be published......
* * * *
Undoubtedly no fresh evidence was adduced in the proceedings before Consolidation Officer except the judgments and decree of the Civil Court and the appellate court. The authorities under the Act held that though the civil suit stood abated the evidence considered by the Civil Court and the findings recorded therein would be available for consideration and can be relied upon. We find that the view taken by the authorities is well justified. Though the suit stood abated, yet the evidence recorded in the suit or appeal and the findings recorded by civil courts do not get wiped out, are entitled to be considered and that, therefore, it being the relevant evidence the authorities under the Consolidation Acts, unless contrary evidence is established, could go into the evidence and were entitled to rely upon the findings recorded by the civil courts in support of its conclusions. Undoubtedly the tribunals below had gone into the question and held that the decree obtained by the respondent was collusive and fraudulent decree and that, therefore, it does not bind the appellants."
The learned counsel for the respondents had further submitted that the fact, pertaining to the witnesses of the Will being alive has been specifically recorded even by the appellate Court after the remand of the matter wherein a finding has been recorded that Braham Chandra and Kalu Ram are still alive and they were working in Roorkee and Saharanpur. From this finding, which has been recorded, it is absolutely clear that attesting witnesses of the Will dated 16th April 1990, which was the foundation of the claim of the petitioners in relation to the property in question which is said to have been bequeathed to them by Hiro Devi, was not established or settled by them in accordance with the law of evidence as despite of the fact that the attesting witnesses of the Will were alive yet the petitioner has not produced them before the Court below and the witnesses which were produced they could not have been considered for determining of the right of the petitioners based on the judgement in Gobardhan (Supra).
"क्योंकि वसीयत दिनांक 16.4.1990 पर गवाह ब्रहमचन्द्र व कालूराम के हस्ताक्षर हैं जो वर्तमान तक जिन्दा चले आ रहे हैं और रूड़की में नौकरी करते हैं यह भी स्पष्ट है कि गवाह कालूराम व ब्रहमचन्दे को अवर न्यायालय में श्याम लाल आदि द्वारा क्यों नहीं बुलाया गया यह प्रश्नवृत है। कालूराम के सम्बधं में सूचना का अधिकार अधिनियम के तहत उनके सरकारी कार्यालय से सूचना मांगी गयी जिसके उत्तर में सूचना उपलब्ध करायी गयी कि दिनांक 16.4.1990 को कालूराम अपनी सरकारी डयूटी पर था।"
There is another aspect, which has to be taken into consideration and that is all throughout the proceedings right from the stage of filing objection under Section 9(A)2 till it was decided after the remand upto the Revisional Court by the impugned order dated 4th September 2017, the fact that the Will dated 5th April 1980, was a registered document is not disputed. The only argument of distinction which is being sought to be carved by the petitioners was as to whether it's substitutive evidence by placing the certified copy on the record could be read or not. In relation thereto, a reference may be had to Section 49 of the Registration Act, 1908 also, which reads as under:-
"49. Effect of non-registration of documents required to be registered.-No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: 54 [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) 55, 56 [***] or as evidence of any collateral transaction not required to be effected by registered instrument.] State Amendment Uttar Pradesh: In section 49,-
(i) in the first paragraph, after the words "or by any provision of the Transfer of Property Act, 1882" insert the words "or of any other law for the time being in force",
(ii) substitute clause (b) as under: "(b) confer any power or create any right or relationship, or",
(iii) in clause (c), after the words "such power", insert the words "or creating such right or relationship",
(iv) in the proviso, omit the words "as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or". [Vide Uttar Pradesh Act 57 of 1976, sec. 34 (w.e.f. 1-1-1977)]."
Under the said Act, it provides the impact as to how the registered document will have precedence in evidence over an unregistered document, more particularly, when the factum of its registration was never disputed by the petitioners at any stage of the proceedings or in its pleadings.
Admittedly, the Will dated 5th April 1980 was a registered document, admittedly, as per the findings which has been recorded by the Settlement Officer, Consolidation the substitutive evidence of producing certified copy of the Will was also brought on record had, in fact been proved the Will in consonance to the provisions contained under Section 72 of the Indian Evidence Act. Thus the argument which has been extended by the learned counsel for the petitioners to the effect that the finding, which has been recorded by the learned Appellate Court after remand was without an application of mind and it was nothing but a stereotyped finding which has been extracted from the earlier order of the Appellate Authority, which stood set aside by the judgement of this Court dated 7th September 2013, hence its finding is not tenable for the reason that if we precisely go into the reasoning, which has been assigned by the Appellate Authority, as well as, by Revisional Authority, they had independently appreciated the effect of the two rival Wills, based on which the petitioners and the respondents were claiming their rights, the Court has considered the extent upto which those documents could be read in support of their respective contentions of the parties, the Court has also considered the fact about the inability of the petitioners to prove a valid execution of the Will dated 16th April 1990, wherein the findings have been recorded that Hiro Devi never produced before the Competent Authority for the purposes of getting the Will registered and more particularly admittedly she was alive she was not present even at the time when the Will was being drafted by Satish Kumar, Advocate.
Considering the aforesaid reasoning which has been concurrently recorded by the Appellate Court, as well as, by the Revisional Court, the petitioners have failed to prove that there was a valid execution of the Will dated 16th April 1990, and as already remarked earlier, the evidenced produced by the petitioners to prove the Will, could not have been read in evidence in view of the ratio as propounded by Allahabad High Court. Consequently, this Court does not find any merit in the writ petition, and the writ petition fails and is accordingly, dismissed. However, there would be no order as to cost.