HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 6 Civil Misc. Writ Petition No. 43472 of 2011 Om Prakash & others Vs. State of U.P. & others ***** Hon'bel A.P. Sahi,J.
Heard Sri K.K. Nirkhi learned counsel for the petitioner.
The contention raised is that the orders passed by the Board of Revenue as well as by the Revising Authority in proceedings under Section 34 of the U.P. Land Revenue Act, 1901, are erroneous and even otherwise in view of the proceedings of the civil court that culminated in the decision in Second Appeal No. 909 of 2010, vide judgment dated 14.12.2010 by this Court, the contesting respondents, particularly respondent no. 5 had no claim surviving and he could not have been extended the benefit of mutation in his favour to the holding of late Pyare Lal.
The dispute in short is in relation to the agricultural holdings of late Pyare Lal and the respondent no. 5 happens to be his real nephew (brother's son). The petitioners claim themselves to be the sister's son of late Pyare Lal. They contend that they have a registered will in their favour and the same could not have been discarded on the ground of mere suspicion, moreso, when the findings of the civil court are against the contesting respondent no.5 who failed to prove his title.
Before proceeding further, it would be appropriate to refer to the judgment of this court in second appeal hereinabove. Instead of explaining the same, the relevant portion of judgment is extracted herein below:-
"Having considered the submission of learned counsel for the parties and perused the record, both the courts below have recorded a categorical finding holding that the plaintiff-appellant failed to prove his title. It has been found that the plaintiff had earlier filed a Suit No. 203 of 1990 wherein the Civil Court while deciding the issue no.4 had found that the plaintiff can get a declaration of his title from the Revenue Court and it had returned the plaint to the plaintiff for being presented before the revenue court. The plaintiff did not file the plaint before the revenue court and has proceeded to file the instant suit for injunction.
In the present proceedings a finding of fact has been clearly recorded that the plaintiff has failed to prove his title over the land in question. Apart from the said finding the courts below have refused to grant injunction by holding that the plaintiff ought to have first sought declaration of his title from the appropriate court since his title has been placed under a cloud by the defendant-respondents who claim title by virtue of will executed by Pyare Lal. The plaintiff-appellant admittedly is the nephew of the deceased Pyare Lal. The trial court while considering the will set up by the defendant-respondents has recorded a finding that it is suspicious since it was obtained on the date Pyare Lal died. The defendant's case was disbelieved for that reason but it was not a suit for cancellation of the will hence also a declaration either way was required. The suit for injunction hence could not be maintainable unless a declaration was made.
The submission that the suit for injunction would be maintainable when the plaintiff has been found in possession and reliance upon the decisions cited by learned counsel is concerned, in this case both the courts below found that the plaintiff has not proved his title whereas the defendant's claim title through a will, which is suspicious and therefore, it held that since the title of the parties is required to be adjudicated, no injunction can be granted in favour of the plaintiff. It was recorded by the trial court that the plaintiff-appellant was living with Pyare Lal his uncle and the defendant-respondents who were his nephews were also living since childhood with Pyare Lal till he died. Therefore, on the question of possession, it is unclear as to whether the plaintiff-appellant was in possession to the exclusion of the defendant-respondents or the defendant-respondents were also in possession, hence the decision relied by Sri Atul Dayal, learned counsel for the plaintiff-appellant on that question are clearly distinguishable from the fact of the present case.
The facts of the present case indicates that there is a dispute of title between the parties and the question of possession though relevant but an injunction could not be granted against a co-claimant of rights.
Consequently there was no error in the view taken by the courts below that the plaintiff-appellant ought to get his rights declared from the appropriate court. More particularly when in an earlier suit filed by him, the plaint was returned for obtaining such a declaration from the Revenue Court."
The respondent no. 5 - Mahabir was the plaintiff-appellant. It is therefore clear that he has to get his title declared before he succeeds to stake any claim.
So far as the petitioners are concerned they were the defendants in the said suit. The High Court in the judgment has clearly indicated that the will set up by the petitioners is suspicious, hence, no injunction could have been granted.
Sri Nirkhi contends that so long as the will is not cancelled, there is a presumption in favour of the will set up by the petitioners and he has relied on the apex court judgment in the case of Abdul Rahim & others Vs. Sk. Abdul Zabar & others, reported in 2009 (107) RD 372, to contend that a registered document carries with it a presumption of its validity, so long it is not set aside. In such a situation, the will set up by the petitioners had to be accepted and the courts below have committed an error by discarding the same on the basis of mere suspicion.
Learned counsel has further relied on the judgment of Puran Singh Vs. Board of Revenue, U.P., Allahabad & others, reported in 2004 (96) RD 98, as well as in the case of Sahed Jan @ Bonde & others Vs. Board of Revenue, U.P. at Lucknow & others, reorted in 2004 (96) RD 656, to contend that the proceedings under Section 34 being summary in nature the courts below have erred in entering into the question of the validity of the will of the petitioners.
Having considered the aforesaid submissions, it is no doubt true that a registered document has a presumption in its favour but it is subject to any challenge or any evidence required to be led to prove such a document. In the instant case the document is a registered will which has to be proved in accordance with the provisions of Section 68 of the Indian Evidence Act, 1872, and the presumption is subject to such proof. This can only be done in a regular proceeding before a court of competent jurisdiction.
Not only this, prima facie, such a will has to be proved before it is accepted. In the instant case, a clear finding has been recorded to the effect that the petitioners failed to lead any evidence in support of the will including the production of the attesting witnesses. It is on this basis that the will has been doubted. There is another circumstance which has been indicated in the orders, namely, that the death of the tenure holder took place on 26th July, 1980. In such a situation, the execution of the will on the same day and its registration makes the document doubtful. The authorities below have therefore only expressed a doubt which also stands corroborated by the judgment in the second appeal quoted hereinabove.
The contesting respondent no. 5 may have lost the battle before the civil court but the present petitioners who were the defendants have also not gained anything out of the said proceedings except for an observation that the will was suspicious.
Considering the aforesaid facts and circumstances of the case and the discussion made hereinabove, the petitioners will also have to establish their title in accordance with law and any orders passed during mutation proceedings would always be subject to the outcome of a regular suit. In such a situation, I am not inclined to interfere with the impugned orders.
The writ petition lacks merit and is accordingly dismissed.
Dt. 3.8.2011 Sahu