Court No. - 3
Case :- CONSOLIDATION No. - 859 of 1993
Petitioner :- Brijesh
Respondent :- D.D.C. & Others .
Petitioner Counsel :- Omkar Nath Tripathi
Respondent Counsel :- C.S.C.,Rajan Singh
Hon'ble Shri Narayan Shukla,J.
Heard Mr. Ravindra Kumar Dwivedi, learned counsel for the
petitioner and Mr. Prabhat Kumar, learned counsel for
opposite party no.3.
In the instant case, the petitioner as well as opposite party
no.3 both are claiming right of succession of the property of
Beepat (deceased) being adopted son of Beepat as well as on
the basis of Will-deed claiming to be executed by Mr. Beepat
in his favour. On demise of Beeptat, one Smt. Mahgeena
widow of Beepat (deceased) moved an application for
mutation of her name in the revenue records on 28th
December, 1983; whereas opposite party no.3 had already
moved an application on 16th December, 19083 before the
Consolidation Officer under Section 12 of the U.P.
Consolidation of Holdings Act, (Hereinafter referred as the
Act) for mutation of the land in dispute in his name on the
basis of Will-deed, against which, she also filed objection.
Both applications were registered as Case Nos. 128 and 129.
The Consolidation Officer disposed of the said applications
by means of common order dated 18th May, 1986 with the
direction that the opposite party no. 3 is entitled for mutation
on the basis of Will-deed. Being aggrieved with the said
order, the petitioner filed an appeal before the Settlement
Officer Consolidation, Sultanpur (Kadipur) under Section 11
(1) of the Act, who by means of judgment and order dated
21.11.1988 allowed the appeal setting aside the order passed
by the Consolidation Officer with the direction to mutate the
property in dispute in the name of the petitioner, who was
minor under the guardianship of his mother Smt. Mahgeena.
The opposite party no.3 challenged the said order by filing a
revision before the Deputy Director of Consolidation,
Sultanpur , who allowed the revision and set aside the order
passed by the Settlement Officer of Consolidation providing
therein that till her life the widow of Beeptat; namely;
Mahgeena shall use and utilise the land in dispute. Thereafter
the land in dispute shall devolve on the basis of will deed.
Learned counsel for the petitioner submits that during the
course of examination Smt. Mahgeena admitted the adoption
deed and stated that she adopted the petitioner as her son,
whereas learned counsel for opposite party no.3 submitted
that the adoption has not been proved with the submissions
that no parents of adopted son was examined; whereas they
were present very well. He also submitted that the petitioner
has failed to prove the adoption in the terms of Hindu
Adoptions & Maintenance Act, 1956. The learned counsel
for the petitioner submits that adoption deed was registered
in the office of Sub Registrar on 2nd November, 1983. At
that time this Act was not in existence, therefore, the
violation of provisions of the Act cannot be claimed. Once
Smt. Mahgeena widow of deceased Beeptat adopted the
petitioner as son, there is no reason to devolve the land in
dispute on the basis of Will-deed. Accordingly, he submits
that the order passed by the revisional court is absolutely on
the basis of surmise and conjecture as well as without
application of mind. He further submits that the Deputy
Director of Consolidation has not applied his mind in
considering the case.
In support of his contentions he cited the following cases:-
Jamuna Prasad Vs. District Deputy Director, Consolidation,
Nainital and others (2005 (99) RD 630, Khemha Vs. Deputy
Director of Consolidation, and others 2005 (98) RD 603,
Moti and others Vs. Deputy Director of Consolidation and
others, 2005 (99) RD 222, Gaya Din (D) through LRs. and
others Vs. Hanuman Prasad (D) through LRs and others,
(2001) 1 Supreme Court Cases 501.
Upon perusal of the order passed by the revisional court I do
not find any discussion of the evidence led before the trial
court; whereas upon perusal of the documents I find that
Smt. Mahgeena has proved adoption through evidence.
Therefore, I am of the view that orders dated 18.5.1986 and
1.10.1993 passed by the Consolidation Officer and Deputy
Director of Consolidation,Sultapur respectively suffer from
error and I hereby quash the same.
The writ petition is allowed.
Order Date :- 27.1.2010
GSY