Afsar vs Wahid Khan & Others
2014 Latest Caselaw 3792 Del

                                    Reserved Judgment

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

          Writ Petition (M/S) No.2052 of 2012

Afsar S/o Manjoor,
R/o Village Bhagtanpur Abidpur @ Ibrahimpur,
Pargana Jwalapur, Tehsil & District Haridwar
                                          ...  Petitioner
                         Versus

  1.    Wahid Khan S/o Hasan Ahmad Khan, R/o Mohalla
        Lot Nisf, Jwalapur, Pargana Jwalapur, District
        Haridwar
  2.    Zahid Khan S/o Hasan Ahmad Khan, R/o Mohalla
        Lot Nisf, Jwalapur, Pargana Jwalapur, District
        Haridwar
  3.    Khalik Khan, S/o Hasan Ahmad Khan, R/o
        Mohalla Lot Nisf, Jwalapur, Pargana Jwalapur,
        District Haridwar
                        .................Contesting Respondents
  4.    Nek Mohammad S/o Sri Manjoor, R/o Mohalla
        village Bhagtanpur [email protected] Ibrahimpur, Pargana
        Jwalapur, Tehsil & District Haridwar
  5.    Zabbar S/o Asgar, R/o Village Bhagtanpur
        [email protected] Ibrahimpur, Pargana Jwalapur, Tehsil &
        District Haridwar
  6.    Shan Mohammad S/o Asgar, R/o Village
        Bhagtanpur     [email protected]     Ibrahimpur, Pargana
        Jwalapur, Tehsil & District Haridwar
  7.    Irfan S/o Asgar R/o village Bhagtanpur [email protected]
        Ibrahimpur, Pargana Jwalapur, Tehsil & District
        Haridwar
  8.    Riyakat S/o Safkkat, R/o village Bhagtanpur
        [email protected] Ibrahimpur, Pargana Jwalapur, Tehsil &
        District Haridwar
  9.    Mursleem S/o Safkkat, R/o village Bhagtanpur
        [email protected] Ibrahimpur, Pargana Jwalapur, Tehsil &
        District Haridwar
  10.   Mushraf S/o Zahoor, R/o village Bhagtanpur
        [email protected] Ibrahimpur, Pargana Jwalapur, Tehsil &
        District Haridwar
  11.   Mukrab S/o Zahoor, R/o village Bhagtanpur
        [email protected] Ibrahimpur, Pargana Jwalapur, Tehsil &
        District Haridwar
                                                     2




     12.     Gafar S/o Zahoor, R/o village Bhagtanpur
             [email protected] Ibrahimpur, Pargana Jwalapur, Tehsil &
             District Haridwar
     13.     Sattar S/o Zahoor, R/o village Bhagtanpur
             [email protected] Ibrahimpur, Pargana Jwalapur, Tehsil &
             District Haridwar
     14.     Firoz W/o Zahoor, R/o village Bhagtanpur
             [email protected] Ibrahimpur, Pargana Jwalapur, Tehsil &
             District Haridwar
     15.     Salim Khan S/o Kudekhan, S/o Zahoor, R/o village
             Bhagtanpur     [email protected]     Ibrahimpur, Pargana
             Jwalapur, Tehsil & District Haridwar

                                                                            ... Respondents
Mr. Siddharth Singh with Mr. P.S. Bisht, Advocates for the petitioner
Mr. Rajendra Dobhal, Sr. Adv. assisted by Mr. Pankaj Miglani, Advocate for respondent nos.1 to 3.
Mr. Nagesh Aggarwal, Advocate for respondent nos.10 to 15.
Hon'ble Servesh Kumar Gupta, J.

The challenge herein is to the judgment and order passed by the Deputy Director of Consolidation/Collector, Haridwar dated 31.8.2012, whereby he allowed the revisions No.258/09-10, moved under Section 48 of the U.P. Consolidation of Holdings Act, 1963, titled as Abdul Wahid Khan and others v. Afsar and others, as well as the revision no.50 of 2010, titled as Zahid and others v. Abdul Wahid Khan and others.

2. The land, in controversy, is of Khata No.104 Chak No.70 situated in village Bhagtanpur Abidpur @ Ibrahimpur, Pargana Jwalapur, Tehsil & District Haridwar. This land basically was in the name of four persons i.e. Gulam Mohd. Khan, Bundu Khan, Gafur Khan and Sandal Khan. So each one of them had 1/4th of share in the said land. Up to 1384 Fasli/1975 A.D., they all were Sirdars and later on, acquired the rights of Bhumidars. The present contest is mainly between the heirs of Bundu Khan on the one hand and the heirs of Sandal Khan, respondent nos.1 to 3, and the heirs of Gafur Khan, respondent nos.10 to 14 on the other hand. Respondent nos.4 to 9 are proforma.

3. Bundu Khan had two sons Asgar and Manjur; Asgar had three sons, Irfan, Jabbar and Shan Mohd while Manjur also had two sons Afsar and Nek Mohammed. The dispute commenced when Manjur S/o Bundu Khan and his associates moved objections in the proceedings pending before the Consolidation Officer, Roorkee, agitating the recording of names of Zahur Khan and Hasan Khan in the revenue records. The Consolidation Officer vide his judgment dated 15.10.2009 rejected the objections raised by the petitioner and his associates. He held the recording of names of these contesting respondents was right in the revenue papers.

4. The judgment passed by the Consolidation Officer was challenged by the heirs of Manjur Khan in the Court of Assistant Settlement Officer, Consolidation. Their appeal was allowed on 21.5.2010 by setting aside the judgment of Consolidation Officer. This way, the objections against recording the names of respondents were allowed. Feeling aggrieved, the respondents moved to the Court of Deputy Director, Consolidation, who, vide the impugned judgment, overturned the judgment of Assistant Settlement Officer, Consolidation and held that the recording of names of respondents was right. So, the disgruntled petitioner Afsar is before this Court under Article 227 of the Constitution of India.

5. At the outset, it is pertinent to mention that the Article 227 of the Constitution of India confers powers of superintendence to this Court over all Courts and Tribunals stated therein but it should be kept limited and the High Court should interfere only when the judgment has been rendered by the Authority in want of jurisdiction or it has been with errors of law or there is some perverse

finding or gross violation of natural justice and so on. Meaning thereby, while exercising the powers under such Article, the High Court is not expected to sit as a Court of Second Appeal scrutinizing each and every detail very meticulously and to give its own findings.

6. Having regard to the limited scope of this Court, I would like to advert my views as under: -

7. Petitioner and his brothers nay cousins claim their ownership on the questioned land primarily on the basis of two Wills, one is dated 12.5.1975 executed by Mr. Hasan Khan in their favour and another Will dated 14.9.1977 executed by Mr. Zahoor S/o Gafur Khan. Their contention is that the Will of Hasan Khan was even proved by its attesting witnesses, Shahbaz and Phool Mohd. before the Court of Consolidation Officer. So, it should have been believed by the Deputy Director of Consolidation (hereinafter to be referred as 'DDC'), as had been relied by the Settlement Officer. The DDC has expressed his view that this Will appears to be quite forged one, all the same, two attesting witnesses were produced before the Consolidation Officer to prove it.

8. I have also not been persuaded to take a different view than that of the DDC for the reason that in comparison of this Will, the certificate issued by the Municipality to the effect that Hasan Khan died on 24.2.1973 is more reliable. If Hasan Khan had died on 24.2.1973, then there was no question of execution of this Will by him on 12.5.1975. On apparent look also, this Will seems to be forged and it does not give any impression of its genuineness because it does not disclose any detail of the land concerned or of its Khata/Khasra/Chak number

or the area etc. So, the attesting witnesses Shahbaz and Phool Mohd. also appear to be false and procured by the petitioner in order to grab the land of his cousins.

9. The other contention put forth by learned counsel for the petitioner is that Hasan Khan purchased the National Savings Certificates (NSC) on 27.2.1978 which are available on the record, so it could not have been accepted that he died on 24.2.1973. This argument also does not hold water, in the opinion of this Court too, for the reason that Hasan Khan was the resident of Jwalapur, Haridwar, so there was no reason for him to rush to Laksar town, which is almost 25 kilometers away from Haridwar, and to purchase these NSCs, each worth Rs.10/-. Even the name of Hasan Khan is not clear and it is rather 'Hassan Khan'. So, these certificates also seem to be a mischievous planning on the part of petitioner to grab the land in question.

10. As regards the Will dated 14.9.1977 allegedly executed by Zahoor Khan, the contention of learned counsel is that this too has been got proved by its attesting witness Abdul Sattar Rana and even the son of Zahoor Khan, namely, Musharraf has accepted the execution of this Will. I feel that again the petitioner has tried to mislead the Court by examining these witnesses who were probably procured and managed by him in impersonation. The greatest proof of this mischievous attempt on the part of the petitioner is that the certificate issued by the concerned Village Pradhan amply makes it clear that Zahoor Khan died on 22.6.1977. If he had died on that date, then there was no question to execute the Will on 14.9.1977. It can very significantly be noted that in the Certificate issued by the Village Pradhan, originally the

date of Zahoor Khan was mentioned as '22.6.1977', but somehow, one of the digit '7' has been interpolated and made '9' projecting as if he died on 22.6.1997. Even if this date is construed as '22.6.1997', then also, it is quite difficult to accept that Zahoor Khan executed the Will 20 years prior to his death. In the opinion of this Court too, the death certificate issued by the Village Pradhan, who is not less than a public servant, is more reliable, than the forged Will dated 14.9.1977.

11. Furthermore, there was no reason for Musharaf, S/o Zahur Khan, to accept this forged Will because had he been the real Musharraf before the Consolidation Officer, then he would not have moved the application before the Assistant Consolidation Officer on 12.7.2002 for recording his name along with his brothers nay his widow mother in the revenue records in place of his father Zahoor. That application is well available on the record of the Court below.

12. The contention of the learned counsel that the Consolidation Officer has not dealt with the aspect of longstanding possession or the receipts of Irrigation as well as the land revenue in favour of the petitioner, is also not tenable because the receipts of payment of Irrigation Charges and that of the land revenue do not disclose that those were concerned with the land which was in the share of respondents. Even if the petitioner or his brothers had possession over the land for few years, that, by itself, is not sufficient to deny the right of actual ownership of those respondents.

13. So, in view of what has been stated above, the Court feels that the judgment delivered by the D.D.C., on

dated 31.8.2012, has done perfect justice between the parties. By this judgment, every mischievous attempt on the part of the petitioner to grab the land of his cousin brothers has been nullified. There is no force in this writ petition and it is liable to be dismissed. The petitioner is, accordingly, dismissed with costs throughout. Interim order dated 9.7.2014 is vacated.

14. Let a copy of this judgment and order along with the LCR be transmitted to the court concerned.

(Servesh Kumar Gupta, J.) 20.08.2014 Rdang