Allahabad High Court
Shiv Kumar And 3 Ors. vs D.D.C. And 7 Ors. on 2 May, 2014
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 18
Case :- WRIT - B No. - 23962 of 2014
Petitioner :- Shiv Kumar And 3 Ors.
Respondent :- D.D.C. And 7 Ors.
Counsel for Petitioner :- Vinod Sinha,Mahesh Sharma
Counsel for Respondent :- C.S.C.,A.K.Rai,Alka Srivastava,S.K. Srivastava
Hon'ble Anjani Kumar Mishra,J.
Heard Shri Vinod Sinha for the petitioners and Shri V.K. Singh for the respondents.
The dispute in the writ petition pertain two separate Wills alleged to have been executed by Jagdish Prasad which have been set up by the parties.
The first, Will is a registered Will of 1997 executed in favour of the respondent Shakuntala. She is the sole beneficiary of the said Will.
The second, Will is an unregistered Will which has been set up by the petitioners. The courts below have accepted the registered Will and have discarded the case of the petitioner which is based on the unregistered Will.
A perusal of the order of the Settlement Officer, Consolidation (the SOC) as also the Deputy Director of Consolidation (the DDC) shows that both these courts discarded the unregistered Will which is subsequent in time and contains recital of the earlier Will on the ground that the marginal witness Ramesh Chandra, who has been produced to prove this unregistered Will has denied the signature of the testator thereon. This is a concurrent finding recorded by the SOC as also the DDC in their orders.
Today, learned counsel for the petitioner has filed a certified copy of the statement of Ramesh Chandra which was recorded on 15.12.2010.
I have carefully perused the statement and the same reveals that the statement of Ramesh Prasad was as regards the registered Will. He has denied the signature of Jagdish Prasad on the registered Will and not on the unregistered Will which has been set up by the petitioners. In view of the above prima facie, the orders of the SOC as also the DDC are vitiated by a clear misreading of the record.
At this stage, Shri V.K. Singh leaned counsel for the caveator has relied upon two decisions, namely, 1974 URC Page 517, Sarju vs. DDC Raibareli and Others as also the Division Bench decision which has been reported in 1974 URC 680, Mathura Prasad and Others vs. DDC Cant, Kanpur and Others. On the basis of the said judgments he has submitted that is not proper for the writ court to re-appreciate the evidence. The submission made by the learned counsel for the petitioner is wholly misconceived because the petition has been entertained not on question of re-appreciation of evidence but on the ground that there is a categorical misreading of the evidence on record.
Shri V.K. Singh, who appears for the respondent no. 4 is granted three weeks time to file counter affidavit.
Learned counsel for the petitioner will have two weeks thereafter to file rejoinder affidavit.
Issue notice to respondent nos. 5 to 8 by registered post A.D.
Steps be taken within a week.
Until further orders, parties for directed to maintain status quo as regards nature and possession over the land in question and they are restrained from creating any third party rights therein.
Order Date :- 2.5.2014
Priyanka
