Anjani Kumar Mishra, J.@mdashThis writ petition arises out of an objection under section 12 of U.P. Consolidation of Holdings Act, 1953 and has been filed seeking a writ of certiorari for quashing the order dated 7.3.1986 passed by the Assistant Director of Consolidation, Gorakhpur and the order dated 20.10.1981 passed by the Assistant Settlement Consolidation Officer, (the ASOC). Heard Sri HSN Tripathi, learned Counsel for the petitioner and Sri AP Tiwari, who appears for the contesting respondents.
2. The dispute pertains to chak Nos. 5, 6, 7 and 8 of village Beli Khurd, district Gorakhpur which were recorded in the name of Kishun Deyee, w/o. Ori in the basic year. Two objections under section 12 of the Act were filed. One, by the petitioners claiming on the basis of the Will said to have been executed in their favour by Kishun Deyee on 18.7.1978. This Will is said to have been executed after revoking an earlier registered Will dated 12.8.1975 executed in favour of the contesting respondent.
3. The second objection was filed by the contesting respondents claiming on the basis of the registered Will dated 12.8.1975 executed in their favour by Kishun Deyee.
4. The Consolidation Officer (the C.O.) by his order dated 19.12.1980 upheld the Will in favour of the petitioner. The Settlement Officer of Consolidation. Gorakhpur (the S.O.C.) by his order dated 22.10.1981 set aside the order of the Consolidation Officer, allowed the appeal and directed that the name of the respondents be recorded over the chaks in dispute, which order has been affirmed by the Revisional Court by its order dated 7.3.1986. Hence the present writ petition.
5. Sri Tripathi, Counsel for the petitioner has submitted that it is the subsequent ''Will'' that Will prevail. He has stated that the Consolidation authorities have recorded a specific finding that the Will dated 12.8.1975 has not been proved and therefore passed orders in favour of the contesting respondents on the basis of succession. The respondents had not claimed title on the basis of the succession and therefore it is submitted that a new case not pleaded has been carved out by the SOC. No issue regarding succession was framed by the Court below. He has lastly submitted that as regards another village namely Beli Khurd Ehatmali, wherein an identical issue has arisen between the parties, orders were passed in favour of the petitioners and the Will dated 18.12.1978 in their favour was upheld which orders have attained finality and the same Will operate as res-judicata between the parties. He also submitted that the Courts below have wrongly cast the burden upon the petitioners. The Will in favour of the petitioners had been proved by the oral testimony of the marginal witness. Thereafter the onus was upon the contesting respondent to disprove the Will, yet the Courts below have discarded the Will on the reasoning that the petitioners took no steps for comparison of the thumb impression on their Will and thumb impression of Kishun Deyee on the registered Will.
6. Sri A.P. Tiwari, Counsel for the respondent has refuted the submissions made by the Counsel for the petitioner. He has submitted that the SOC as also the DDC have recorded categorical findings that the Will of 1978 in favour of the petitioners was not proved. Further there were suspicious circumstances surrounding the Will of 1978 in favour of the petitioners. Since the petitioners were the propounders of this Will, the burden was upon them to remove and to explain the suspicious circumstances surrounding the Will in their favour which burden they have failed to discharge and therefore the orders impugned are perfectly justified and are liable to be affirmed.
7. I have considered the rival submissions made by the Counsel for the parties and have perused the impugned orders.
8. The Consolidation Officer had allowed the objection of the petitioners relying on certain letters alleged to have been written by Kishun Deyee to her daughters stating therein that she had executed a Will in favour of the petitioners revoking the earlier registered Will. Another letter which is alleged to have been written by one of the daughters namely Savitri asking her mother Kishun Deyee to execute Will in favour of the petitioners was also relied upon. The CO in his order has further recorded that the respondents have failed to establish that the Will in favour of the petitioners was not genuine.
9. The SOC on the other hand has recorded a categorical finding that the Will in favour of the petitioners is not proved. As regards the letter of Savitri it has been recorded by the two Courts below namely the SOC and also the DDC that it is admitted on record that Savitri was illiterate and on this basis inference has been drawn that her alleged letter is forged and is not a genuine letter. They have therefore discarded the letter which was the basis of the order of the CO. Both these Courts below, have observed that since it was the case of the contesting respondent that Kishun Deyee had revoked the earlier registered Will of 1975 executed in favour of her daughter, the said Will stood admitted on record. Thus, it was the duty of the petitioners to prove that the Will of 1978 in their favour was genuine and therefore the finding recorded by the SOC that the Will in favour of the petitioners was not proved becomes extremely relevant and in view of such finding it was incumbent upon the petitioners to have adduced evidence to remove the suspicious circumstances surrounding the Will in their favour which burden they have failed to discharge. Under the circumstances, the submission of the Counsel for the petitioner that the Courts below have wrongly cast the burden of proving the Will upon the petitioners cannot be accepted since the petitioners were the propounders of the Will of 1978, the burden of proving the same and the burden of removing the suspicious circumstances surrounding this Will was squarely upon the petitioners.
10. It is also clear from perusal of the impugned orders that they have been passed upon due consideration of the evidence on record and after appreciating the entire evidence available on record. Under these circumstances, the finding recorded cannot be said to be perverse and therefore the same cannot be interfered with in exercise of powers under Article 226 of the Constitution of India.
11. As regards the plea of res-judicata it is relevant to observe that the judgment alleged to operate as res judicata is not available on record. Moreover, the said judgment, in view of the averments in para. 4 of the writ petition, appears to have been passed in mutation proceedings under section 34 of the U.P. Land Revenue Act which are summary proceedings and related to land of another village. The judgment in such summary proceedings is not binding upon the parties in regular title proceedings as are involved in the writ petition. Accordingly for the reasons given above, the writ petition is devoid of merit and is dismissed. There will be, however, no order as to costs.
