Ganga Charan vs Deputy Director of Consolidation and Others

Sudhir Narain, J.—This writ petition is directed against the order dated 17th January, 1983 passed by the Deputy Director of Consolidation, Respondent No. 1, whereby the revision filed by the contesting Respondent was allowed and the objection of the Petitioner filed u/s 9 of U.P. Consolidation of Holdings Act (hereinafter referred to as ''the Act'') was dismissed.

The parties are related to each other as given in the following pedigree:

Kalika Prasad | __________________________________________________________ | | | | Bachchan Lal Gajodhar Gurdayal Ayodhya Prasad (Died.) Prasad (Died.) (Died.) | | Ganga Prasad __________________________ | | | Ganga Charan Radha Charan Jai Prakash

The dispute relates to the land which belonged to Bachchan Lal and Gajodhar. The Petitioner claims that they executed a registered sale-deed in his favour on 12th August, 1964 and he was entitled for mutation of his name in respect of the land transferred to him by the sale-deed. He filed a mutation application before the Tahsildar concerned. In that mutation proceeding, Bachchan Lal moved an application on 22.2.1965 stating that the name of the Petitioner be mutated in the revenue record as he and his brother both have sold their shares in the land in dispute. Bachchan Lal made statement that he and his brother, Gajodhar, had executed sale-deed in favour of the Petitioner on 12th August, 1964 and after obtaining sale consideration had delivered possession. Ganga Prasad, Respondent No. 5, filed objection in the mutation proceedings on the allegation that Bachchan Lal had executed agreement for sale of his 1/4 share on 11th July, 1964 and thereafter delivered possession to him and he was in its possession. It is not clear what order was passed in the mutation proceedings as none of the parties have filed any order passed by the Tahsildar concerned in that proceeding.

It appears Ganga Prasad filed Suit No. 102 of 1965 in the Court of 1st Civil Judge, Kanpur for specific performance of contract against Bachchan Lal as is apparent from Para 14 of the written statement filed by Ayodhya Prasad, the father of Ganga Prasad, in Suit No. 187 of 1971 (Annexure 7A-I to the writ petition). It is, however'', not clear what happened in the said suit.

Subsequently, Ganga Prasad, Respondent No. 5, filed Suit No. 244 of 1972 in the Court ol Munsif Hawaii, Kanpur for specific performance of the contract alleging that Bachchan Lal had entered into an agreement to sell in respect of his 1/4 share in the land in dispute on 11th July 1964 and had delivered possession of his share to him. He. however, did not execute any sale-deed. In the suit, he impleaded Gajodhar Prasad and also the Petitioner. The suit was dismissed for default on 3rd May, 1975.

The Petitioner also filed Suit No. 187 of 1971 for partition of his share in the land in dispute in the Court of Assistant Collector 1st Class, Kanpur u/s 176 of U.P. Zamindari Abolition and Land Reforms Act on the basis that Bachchan Lal and Gajodhar had executed sale-deed in his favour on 12.8.1964.

The suit was, however, in view of commencement of consolidation proceedings, abated.

In the consolidation proceedings, the Petitioner filed objection claiming mutation of his name on the allegation that Bachchan 1al and Gajodhar had executed sale-deed in his favour on 12.8.1964 and he was entitled to half share in it. Ganga Prasad filed objection that Bachchan I,al had entered Into agreement for sale of his 1/4 share on 11th July, 1964 and delivered possession to him and he was entitled to continue in possession. He also denied that Bachchan Lal and Gajodhar and executed sale-deed in favour of the Petitioner. Another objection was filed by Ayodhya Prasad, the father of Ganga Prasad, that after the death of Bachchan Lal and Gajodhar, he inherited their shares in the land in dispute and was entitled to succeed to them. The Consolidation Officer held that the Petitioner failed to prove the execution of the sale-deed. His objection was dismissed by order dated 19.2.1981. The Petitioner filed appeal against the said order. The Assistant Settlement Officer, Consolidation allowed the appeal by order dated 29.4.1982 holding that the execution of the sale-deed dated 12.8.1964 was duly proved. Respondent No. 4 filed revision against the said order. Respondent No. 1 has allowed the revision and set aside the findings recorded by Assistant Settlement Officer, Consolidation and restored the order of the Consolidation Officer. The Petitioner has challenged these orders.

I have heard Sri. S.D.N. Singh, learned Counsel for the Petitioner, and Sri. V.K.S. Chaudhary, Senior Advocate, for the Respondent at length.

The sole question is whether the Petitioner proved the execution of the sale-deed. Respondent No. 1 held that the execution of the sale deed was not proved basically for two reasons because the Petitioner die not produce the scribe and the attesting witnesses of the sale-deed. Secondly, there was no order mutating the name of the Petitioner and the name of the Petitioner was never mutated in the revenue record.

Admittedly, Bachchan Lal died in the year 1970 and Gajodhar died in 1974. The Petitioner relied upon the copy of the statement alleged to have been given by Bachchan Lal before the Tahsildar in the mutation proceedings wherein he had admitted the execution of the sale-deed in question. Learned Counsel for the Respondent urged that statement was inadmissible in evidence. He has placed reliance upon the decision Bhure v. Pir Bux and Ors. 1973 AWR 279, wherein it was held that any consent or admission made in a mutation proceeding has no relevance in regular title proceeding. This legal proposition is well-settled. The statement of a party made in another proceeding can be used to confront such party when he appears in the evidence. In case the party is dead at the time when the matter is to be decided in regular proceedings, his statement will be relevant under Sub-section (3) of Section 32 of the Evidence Act which provides when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. In Harihar Raj Guru Mohapatra and Anr. v. Nawkishor AIR 1963 Ori 46, wherein in a mortgage-deed, the executant had admitted regarding adoption, it was held that the statement made in the mortgage-deed being against his pecuniary interest was admissible in evidence. The Court, in these circumstances, can consider the relevancy of statement of a dead person if he had made statement against his own interest in the property in question.

Ganga Prasad had filed Suit No. 244 of 1972 and in the said suit, he challenged the execution of the sale-deed dated 12.8.1964. In Para 7 of the sale-deed, he stated that the Petitioner obtained the sale-deed by exercising his undue influence over Bachchan Lal deceased and In Para 8, similar allegation has been made against Gajodhar. At the time of the institution of the suit, Gajodhar Prasad was alive. He died on 14.2.1974. There is nothing to show that Gajodhar Prasad had raised any objection that he never executed the sale-deed.

Bachchan Lal died in the year 1970. It is not denied by Respondent No. 4 and 5 that the Petitioner had not filed any mutation application. None of the parties, however, has filed any copy of the final order passed in that mutation proceeding. The Petitioner had filed suit for partition in the year 1971 impleading the Respondent as well as Ayodhya Prasad in the suit.

The Petitioner had led the evidence that the sale-deed was executed by Bachchan Lal and Gajodhar Prasad. Respondent No. 1 was to consider (1) whether the sale-deed was executed by Bachchan Lal and Gajodhar Prasad and (2) if the sale-deed was executed, whether it was obtained by fraud or undue influence. It was not necessary that the scribe and the attesting witnesses should have been produced to prove the execution of the sale-deed.

The execution of a document is to be proved in accordance with the provision of Section 67 of the Evidence Act which provides if a document is alleged to have been signed or written wholly or in part by any person, the signature or handwriting of so much of the document as is alleged to be in that person''s handwriting must be proved in his handwriting. This can be proved by any person who recognises the signature or the handwriting. Section 68 of the Evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence unless one of the attesting witnesses at least has been called for the purpose of proving its execution. The proviso makes it clear that it shall not be necessary to call an attesting witness in the proof of execution of a document, not being the will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless its execution by a person to whom it purports to have been executed is specifically denied. The person who had executed the registered sale-deed never denied the execution of the document. In Ram Kishor v. Amhika Prasad AIR 1966 All 515, it has been held that even if a document has been attested hut if it is registered and not required by law to be attested, it is not necessary to call the attesting witnesses to prove the document. The document has to be proved only in the manner provided u/s 67 of the Evidence Act, 1872.

In Para 14 of the wilt ten statement filed by Ayodhya Prasad in the suit filed in the Court of Assistant Collector 1st Class by Ganga Charan, it has been stated that Ganga Prasad instituted Suit No. 102 of 1965 in the Court of 1st Civil Judge, Kanpur for specific performance of contract against Bachchan Lal. It has not been shown that in the said suit, what was the stand taken by Bachchan Lal.

Learned Counsel for the Respondent urged that even after the execution of the sale-deed, Bachchan Lal and Ayodhya Prasad continued in possession of the land in dispute as they had let out the land. Learned Counsel for the Respondent contends that the Petitioner never stated that after the execution of the sale-deed, they had let out the land but in fact, he had stated that he was cultivating the land. It is not necessary to consider the evidence in the matter. The view taken by Respondent No. 1 that as the name of the Petitioner was not recorded in the mutation proceedings that will be taken as adverse circumstance to show that the sale-deed was not executed is erroneous in law. Respondent No. 1 should have first recorded a finding whether the sale-deed contained the signature of the executant on the sale-deed and secondly if the sale-deed was executed, whether it was obtained by practicing fraud or undue influence. Respondent No. 1 had not considered the matter in accordance with law and the order passed by it suffers from manifest illegality.

In view of the above, the order dated 17.11,1993 is hereby quashed and the writ petition is allowed. Respondent No. 1 is directed to decide the matter afresh, keeping in view the observations, made above, in accordance with law on the basis of the evidence already on the record, possibly within three months from the date of production of a certified copy of tills order.