Allahabad High Court
Geeta Rani And Others vs D.D.C. And Others on 29 November, 2011
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. 5
CIVIL MISC. WRIT PETITION NO. 68410 OF 2011
Geeta Rani and others
Vs.
Deputy Director of Consolidation, Saharanpur and others.
Hon'ble A.P. Sahi, J.
The petitioners contend that the respondent no. 4 had claimed succession by virtue of being the daughter of late Sri Harkesh through his second wife Smt. Husani but she was not entitled for an exclusive succession to the holding of late Harkesh. The petitioners are the three married daughters of late Harkesh through his first wife namely Smt. Khajani. To demonstrate the relationship of the parties the pedigree is extracted hereinunder:
Harkesh=Khazani (1st wife)
Sumitra Shimla Geeta Rani Salelata
(Daughter of 2nd wife Husani)
Harkesh died on 12th of September, 1998. An application under Section 12 of the U.P. Consolidation of Holdings Act, 1953 was filed by Smt. Husani (mother of the respondent no. 4), which was dismissed in default on 26.02.2001. The respondent no. 4 filed a restoration application, which was allowed on 21.02.2006 and the matter was restored. The petitioners had filed objection to the said claim of the respondent no. 4. The claim was allowed on 13.06.2006 against which a restoration and an appeal was also filed by the petitioners. The appeal was rejected on 02.12.2006 and the revision has also been dismissed on 11.08.2011. Hence this petition.
I have heard Sri R.P. Singh, learned counsel for the petitioners, Sri Dhirendra Pratap Singh holding brief of Sri Aslam Ansari learned counsel for the respondent no. 4 and the learned Standing Counsel for the respondents no. 1 to 3.
Learned counsel for the respondent no. 4 and the learned Standing Counsel submit that they do not propose to file any counter affidavit and the matter be disposed of finally as the entire material is already on record. Accordingly, with the consent of the parties, the matter is being disposed of finally at this stage.
From a perusal of the records and the submissions raised, it appears that the respondent no. 4 was claiming succession through a Will dated 06.10.1997. The order of the Consolidation Officer nowhere indicates the setting up any such Will or being proved by the respondent no. 4.
In the opinion of the Court, if any Will has been set up by the petitioners, a copy whereof has been filed as annexure 4 to the writ petition, then the same has to be proved by leading cogent evidence and if it was in existence, and pleadings had been advanced in respect thereto, then the authorities ought to have attended to the same.
On the basis of the pedigree, which has been drawn out hereinabove, there does not appear to be any occasion to direct for recording the sole name of respondent no. 4-Salelata who is stated to be the daughter from the second wife of late Harikesh. The provisions of Section 171 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 are clear enough for allowing succession in favour of married daughters in equal shares. No finding has been recorded as to why the natural course of succession has been avoided. In the absence of any such reason, the order of the Consolidation Officer as affirmed in appeal and in revision is erroneous. As a matter of fact, the appellate authority ought to have set aside the order of the Consolidation Officer and should have remitted the matter back for decision on the issues raised keeping in view the rival claims of the parties. The revisional authority has also not drawn its attention to the same and has not adverted to these issues in spite of the fact that the position with regard to the Will that had been set up had been explained. The revisional authority did not record any independent finding and has simply affirmed the orders passed by the authorities below.
In my opinion, the matter has been taken up cursorily without adverting to the issues relating to the claim of the parties and as such the impugned orders cannot be sustained. The writ petition is allowed. The order dated 11.08.2011 affirming the order of the Settlement Officer, Consolidation dated 02.12.2006 and the order of the Consolidation Officer dated 13.06.2006 are all set aside.
In view of this, let the matter be remitted before the Consolidation Officer to decide the same again after allowing the parties to lead evidence in the light of their respective pleadings as expeditiously as possible preferably within a period of one year from the date of presentation of a certified copy of this order before him.
Dt. 29.11.2011
Akv
