Allahabad High Court
Furkan Ali And 6 Others vs The Deputy Director Of ... on 9 July, 2019
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 19
Case :- WRIT - B No. - 1640 of 2019
Petitioner :- Furkan Ali And 6 Others
Respondent :- The Deputy Director Of Consolidation And 6 Others
Counsel for Petitioner :- Abhilasha Singh,Ashutosh Yadav
Counsel for Respondent :- C.S.C.
Hon'ble Salil Kumar Rai,J.
Heard Shri Bhola Nath Yadav, Advocate, holding brief of Shri Ashutosh Yadav, learned counsel for the petitioners.
The dispute in the consolidation proceedings from which the present writ petition arises related to succession to the estate of one Alijaan. One Wahidan, i.e., the predecessor in interest of the petitioners claimed succession to Alijaan claiming to be his daughter. It is the admitted case of the petitioners and was the admitted case of the predecessor in interest of the petitioners that Miajaan was the son of Alijaan. The claim of Wahidan, i.e., the predecessor in interest of the petitioners was contested by the opposite parties alleging that Wahidan was not the daughter of Alijaan, but was the daughter of one Wali Ahmad and was, therefore, also not the sister of Miajaan. The claim of Wahidan was also denied by the opposite parties on the ground that even assuming that Wahidan was the daughter of Alijaan, she was not entitled to succeed to the estate of Alijaan as Miajaan, who initially succeeded to the estate of Alijaan after the death of Alijaan, died on 22.9.1954 and under Section 171 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') as it stood on 22.9.1954, the married sister of the tenure holder had no right of succession. The married sister got a right to succession to the estate of her brother only by amendment incorporated in Section 171 of the Act, 1950 w.e.f. 10.10.1954. The Consolidation Officer rejected the claim of Wahidan. However the Settlement Officer of Consolidation vide his order dated 16.3.2012 passed in Appeal No. 4/13/58 allowed the claim of Wahidan. Aggrieved by the order dated 16.3.2012, the opposite parties filed Revision Nos. 6/18/21 and 7/19/22 which has been allowed by the Deputy Director of Consolidation, Moradabad, i.e., respondent No. 1 (hereinafter referred to as, 'D.D.C.') vide his order dated 2.9.2016. The petitioners filed recall applications praying for recall of the order dated 2.9.2016 passed by the D.D.C. alleging that the said order was passed ex-parte against the petitioners. The D.D.C. vide his order dated 28.9.2018 dismissed the recall applications filed by the petitioners. The orders dated 2.9.2016 and 28.9.2018 passed by the D.D.C. have been challenged in the present writ petition.
From the records of the writ petition, it is evident that the claim of Wahidan was based on her contention that Ali Mohammad and Alijaan were the sons of one Chunna and she was the daughter of Alijaan. It is admitted that Miajaan was the son of Alijaan. The claim of the opposite parties was that Chunna had three sons Wali Ahmad, Ali Mohammad and Alijaan. It was alleged by the opposite parties that Wali Ahmad was married to Mulia and Wahidan was the daughter of Ali Mohammad and Mulia. The D.D.C. after considering the records of the case and the evidence filed by the opposite parties has held that Wahidan had not been able to prove that she was the daughter of Alijaan. The sale-deed produced by Wahidan which was allegedly executed by her cousin Mushtaq stating that she was the daughter of Alijaan has been disbelieved by the D.D.C. in his order dated 2.9.2016 on the ground that the said sale-deed had not been proved during the proceedings in the case by the marginal witnesses. It also appears from the records that in order to prove her claim that she was the daughter of Alijaan, Wahidan had produced one Salim as a witness, but the testimony of Salim has been rejected by the D.D.C. on the ground that Salim was not competent to testify about the paternity of Wahidan as he was much younger in age to Wahidan. For the aforesaid reasons, the D.D.C. has rejected the claim of Wahidan after recording a finding that Wahidan had not been able to prove that she was the daughter of Alijaan. The findings recorded by the D.D.C. on the paternity of Wahidan are findings of fact based on evidence on record and the Court finds no perversity in the aforesaid findings.
Apart from the aforesaid, relying on a mutation order dated 22.9.1954 wherein the name of Miajaan, who was admittedly the son of Alijaan, was deleted from the records as he had died by that date, the D.D.C. has held that even after assuming that Wahidan was the daughter of Alijaan, she was not entitled to succeed to the estate of Alijaan as after the death of Alijaan his estate devolved on Miajaan and Mijaan died on 22.9.1954, therefore, under Section 171 of the Act, 1950 Wahidan, being the married sister cannot succeed to the estate of Miajaan as a married sister became entitled to succeed to the estate of her brother only by the amendment incorporated in Section 171 of the Act, 1950 w.e.f. 10.10.1954. There is no illegality in the reasoning given by the D.D.C. and the findings regarding the date of death of Miajaan recorded by the D.D.C. is based on documentary evidence on record. The aforesaid is also a finding of fact and the Court finds no perversity in the same. The findings of the D.D.C. recorded in his order dated 2.9.2016, as held earlier are findings of fact and not amenable to interference by this Court under Article 226 of the Constitution of India merely because a different view may be possible on the same set of evidence.
So far as the challenge to the order dated 28.9.2018 passed by the D.D.C. is concerned, it is apparent from the records especially the order dated 2.9.2016 that the petitioners despite repeated opportunities failed to argue their case before the D.D.C. and did not even produce their written arguments even though opportunity was given to them to file their written arguments. Considering the aforesaid facts, the D.D.C. rejected the recall applications filed by the petitioners on the ground that the order dated 2.9.2016 was not an ex-parte order and it was not a fit case to recall the order dated 2.9.2016. Consequently, the D.D.C. vide his order dated 28.9.2018 dismissed the recall applications filed by the petitioners.
There is no illegality in the order dated 28.9.2016 passed by the D.D.C. Consequently, the challenge to the order dated 28.9.2018 passed by the D.D.C. also stands rejected.
For the aforesaid reasons, the writ petition lacks merit, and is, accordingly dismissed.
Order Date :- 9.7.2019
Anurag/-
